text:
    STATE of Louisiana v. Clarence ROBERSON.
    No. KA-1586.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Writ Denied Oct. 12, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appel-lee.
    Anthony L. Glorioso, New Orleans, for appellant.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   GULOTTA, Judge.

On appeal of his conviction and sentence as a second offender for possession of phencyclidine, a violation of LSA-R.S. 40:966(C), defendant Clarence Roberson requests this court to review the record for errors patent, and additionally urges ten assignments of error. We affirm.

On September 30, 1982, on execution of a search warrant for the residence and garage at 7341 Poitevant Street in New Orleans, police officers confiscated a large quantity of phencyclidine, lactose milk sugar, and a set of scales. Roberson, his wife, and another adult male were arrested on the premises. At the time of his arrest, Roberson was on probation for prior illegal possession of this drug.

Charged with possession with intent to distribute phencyclidine in violation of LSA-R.S. 40:966(A)(1), Roberson was found guilty by a twelve member jury of simple possession. The trial judge sentenced him to serve a maximum twenty year sentence as a multiple offender.

ERRORS PATENT

Having examined the documents in the record, we find no errors patent. We now address defendant’s specific assignments of error, including the sufficiency of the evidence to support the conviction.

ASSIGNMENT OF ERROR 1

Defendant first contends the trial judge erred in denying his motion to suppress the evidence seized for lack of probable cause to issue the search warrant of 7341 Poitev-ant Street.

The affidavit in support of the search warrant states that the affiant-police officers had been provided reliable information from two informants about burglaries and stolen property in the past, as well as information leading to arrests and convictions in drug eases.

According to the affidavit, one of these informants told the officers that he had seen five men manufacturing PCP in the garage of “Buddy” Roberson’s house of Poitevant Street, that he could smell the PCP in Roberson’s house, garage and the surrounding area, and that he knew “Buddy” manufactured PCP in the garage for distribution and kept some of it in the refrigerator and a kitchen cabinet. The second informant told one officer that he knew “Buddy” was heavily dealing in PCP, presently had a large quantity of it, and was watching for police. The affiant officers further averred that a computer check had revealed that Clarence and Cassandra Roberson lived at 7341 Poitevant Street, and had previously been arrested at least twice for narcotic violations. The narcotics division of the police department had also informed the officers that surveillance of the house was difficult because Roberson used binoculars to watch for police.

When probable cause for issuance of a search warrant is based upon a tip received from a confidential informant, the “totality of circumstances”, including the “veracity” and “basis of knowledge” of the informants supplying hearsay information, must be sufficient to allow the magistrate to make a practical, common sense decision whether there is a fair probability that contraband will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Manso and Warden, 449 So.2d 480 (La.1984); State v. Lingle, 436 So.2d 456 (La.1983).

Considering the information supplied to the magistrate, we cannot say he erred in finding probable cause for issuance of the search warrant. The informants’ history of prior information to the police officers in other cases established their “veracity”, and their personal observation of drugs at the premises sufficiently showed their “basis of knowledge” in the instant case. Based on the information set forth in the affidavit, and the police officers’ corroborative computer check, the magistrate had a substantial basis for concluding that there was a fair probability that contraband would be found at the named premises. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR 2

Defendant next argues the trial court erred in failing to excuse a juror for cause because of her bias in favor of police officers.

During voir dire, and after the defendant had exhausted his peremptory challenges, a potential juror testified that her son was an explorer scout who had worked with the police department. When asked whether this relationship would make her more likely to believe a police officer than the defendant or any other witness, the juror at first answered that she “hoped not”, but later stated: “To be honest, I would probably be more prejudiced to policemen.”

After the defense moved to challenge this juror for cause, the prosecutor then asked the juror if she could “... listen to what’s presented to you today and not have an ingoing bias on the front end against the State or have an ingoing bias on the front end against the defendant_” The juror responded that she could do so. The defense’s challenge for cause was denied.

Although a juror who is biased in favor of the testimony of law enforcement officers over that of defense witnesses is not competent to serve, a trial judge does not err in accepting a juror who demonstrates willingness and ability to decide the case impartially, even though he may have initially voiced an opinion seemingly prejudicial to the defense. State v. Davenport, 445 So.2d 1190 (La.1984); State v. Governor, 331 So.2d 443 (La.1976); State v. Johnson, 324 So.2d 349 (La.1975).

Despite the juror’s indication in our case that she would probably be more prejudiced toward policemen, she responded, on further questioning, that she could listen to the evidence presented without having a bias against either the State or the defense. Under these circumstances, we cannot say the court abused its discretion in concluding that the juror had been rehabilitated. State v. Celestine, 443 So.2d 1091 (La.1983); State v. Benoit, 440 So.2d 129 (La.1983). Accordingly, we find no error.

ASSIGNMENTS OF ERROR 3, 4, 5, 6, & 7

In these assignments of error, defendant complains of the trial judge’s failure to grant a mistrial as the result of various comments by the judge, witnesses, and the prosecutor during trial.

In Assignment of Error 3, defendant argues the trial judge erred in failing to grant a mistrial after erroneously referring to phencyclidine as a “controlled dangerous substance, a narcotic drug” instead of a “suppressant”. Although defendant’s description of the drug may be technically correct, we cannot say how the trial judge’s misnomer deprived defendant of a fair trial or resulted in prejudice. LSA-C.Cr.P. Art. 775. Accordingly, we find no merit to this argument.

Defendant further contends, in Assignment of Error 4, that a mistrial should have been granted when the prosecutor, during his opening statement, told the jury that they would hear testimony from police officers that they had “... received information from two confidential informants that at 7341 Poitevant Street a person was manufacturing Tea, which is the street name for Angel Dust.” According to defendant, the prosecutor’s comments constituted an improper reference to another crime (manufacturing phencyclidine) not within the Bill of Information (charging defendant with possession with intent to distribute), and was therefore mandatory grounds for granting a mistrial pursuant to LSA-C.Cr.P. Art. 770(2). We disagree.

After sustaining the defense’s objection to the prosecutor’s comment, the defense attorney asked the court to “please instruct the jury accordingly”. The trial judge thereupon admonished the jury “... to disregard the last remark of the District Attorney”.

We conclude that the prosecutor’s reference to the informant’s statement about manufacture of the drug at the Poi-tevant Street premises does not constitute a reference to another crime by the defendant, but merely sets forth the circumstances underlying the issuance of the search warrant based on probable cause that led to the seizure of the large amount of phen-cyclidine and defendant’s arrest. See State v. Franklin, 449 So.2d 63 (La.App. 4th Cir.1984). As such, it was part of the res gestae of the crime charged. See State v. Harper, 430 So.2d 627 (La.1983). Furthermore, even if the prosecutor’s comment was improper, we cannot say it prevented a fair trial or significantly contributed to the conviction. See State v. Gibson, 391 So.2d 421 (La.1980). Moreover, the trial judge’s admonition to the jury removed any resultant prejudice. Under these circumstances, it was not mandatory that a mistrial be granted.

Defendant further complains of references by a testifying police officer to the scene of the arrest as “the Roberson residence”. According to defendant, this reference connotes prior arrests involving this defendant. We disagree. The police officer’s testimony that he had seen Roberson living at that address at least a year before the arrest was relevant and probative of defendant’s residence at the premises where the drug was confiscated. Furthermore, a police officer’s simple reference to a familiarity with the defendant and observation of him on other occasions does not constitute a reference to “another crime” committed by the defendant within the meaning of LSA-C.Cr.P. Art. 770(2). State v. Harper, 430 So.2d 627 (La.1983); State v. Michel, 422 So.2d 1115 (La.1982). Accordingly, we find no error in the trial judge’s refusal to grant a mistrial under these circumstances.

We likewise reject defendant’s further arguments in Assignment of Error 4 concerning the police officers’ hearsay testimony about information received from the informants prior to the issuance of the search warrant. The trial judge sustained defense objections to this hearsay testimony and admonished the jury to ignore it. We conclude that the trial judge’s corrective action removed any prejudice and obviated the necessity of declaring a mistrial based upon these references to “informants”.

In Assignment of Error 5, defendant further contends the trial court erred in refusing to grant a mistrial as a result of Officer Cutrer’s testimony that defendant’s wife Cassandra was arrested with him. According to defendant, this reference to the wife’s arrest effectively “impeached” her credibility and he was therefore “unable to call upon her as a witness at the trial”. In our opinion, the officer’s answer was responsive to the prosecutor’s question whether anyone was arrested at the Poitev-ant Street premises. We fail to find any prejudice. Accordingly, we find no error.

Assignment of Error 6 concerns the prosecutor’s attempt to prove who paid the utility bill at 7341 Poitevant Street. When the prosecutor asked Officer Cutrer if he had contacted a utility company to verify who lived at the address where the warrant was executed, the trial judge sustained the defendant’s hearsay objection before the officer completed his answer. Again, during the prosecutor’s closing argument, the trial judge sustained the defendant’s objection to the prosecutor’s statement to the jury, “Did you hear me ask Officer Cutrer if he checked the utilities?” We cannot say that the prosecutor’s brief references to the utility bill during questioning and argument prejudiced the defendant. Moreover, the trial judge’s prompt sustaining of the defense objections prevented any improper influence of the jury-

We likewise reject defendant’s Assignment of Error 7 concerning the prosecutor’s comments during closing arguments about the effects of phencyclidine on human beings: “And you heard Officer John Palm ... tell you, the only use he knows for this stuff is for veterinary purposes, tranquilizers I guess for horses, cows and things a heck of a lot bigger than human beings. Imagine its effect on a human being....” Although defendant contends this reference was irrelevant and highly prejudicial, we cannot conclude that it had any measurable effect on the jury or significantly contributed to the verdict. Accordingly, we find no abuse of the trial court’s discretion in refusing to grant a mistrial.

For the foregoing reasons, Assignments of Errors 3 through 7 lack merit.

ASSIGNMENT OF ERROR 8

In this assignment, defendant complains of the responsive verdict sheet furnished to the jury.

Defendant was charged with violating LSA-R.S. 40:966, possession of phencycli-dine with intent to distribute. The verdict sheet listed the following possible verdicts:

“RESPONSIVE VERDICTS”
“You may render any one of the following responsive verdicts:
1. GUILTY
2. GUILTY OF ATTEMPTED POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE, TO WIT: PHENCY-CLIDINE, WITH INTENT TO DISTRIBUTE.
3. GUILTY OF POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE, TO WIT: PHENCYCLIDINE.
4. GUILTY OF ATTEMPTED POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE TO WIT: PHENCY-CLIDINE.
5. NOT GUILTY”
“You are to attach no significance whatsoever to the numerical order in which these verdicts are listed.”

The jury found defendant guilty of simple possession of phencyclidine.

Because conviction for simple “possession” of phencyclidine bears the same imprisonment penalty as possession with intent to distribute (not more than ten years), defendant contends that “possession” is an “included grade” but not a “lesser” offense of the crime charged. Roberson argues, therefore, that the verdict form should have listed “possession” above “attempted possession with intent to distribute”, which bears a lesser penalty. According to defendant, the jury’s verdict was undoubtedly a “compromise”, but the verdict form prevented it and frustrated the jury’s intent. We disagree.

The verdict sheet given the jury in the instant case tracks the responsive verdict form set forth in LSA-C.Cr.P. Art. 814(A)(49):

Art. 814 Responsive verdicts; in particular:
A. The only responsive verdicts which may be rendered when the indictment charges the following offenses are:
if« * Sfc * *
49. Possession of Controlled Dangerous Substances With Intent to Produce, Manufacture, Distribute, or Dispense: Guilty.
Guilty of attempted possession of controlled dangerous substances with intent to produce, manufacture, distribute or dispense.
Guilty of possession of controlled dangerous substances.
Guilty of attempted possession of controlled dangerous substances.
Not guilty.”

Furthermore, the trial judge expressly admonished the jury in writing not to attach any significance to the numerical order in which the verdicts were listed. Defendant’s argument based on the jury’s intent is therefore speculative. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR 10

Defendant further contends there was insufficient evidence to support his conviction.

In review of the sufficiency of evidence to support a conviction, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982). Where circumstantial evidence forms the basis of the conviction, it must exclude every reasonable hypotheses of innocence. LSA-R.S. 15:438; State v. Camp, 446 So.2d 1207 (La.1984); State v. Wright, 445 So.2d 1198 (La.1984).

Evidence in the instant case establishes that defendant was arrested at a premises containing enough phencyclidine for an estimated 8,000 street doses or “hits”. Officer Marino testified that he had seen Roberson living at the Poitevant Street address about one year before the arrest. Viewing the evidence in the light most favorable to the prosecution, we conclude that there was sufficient proof for the jury to exclude the possibility that Roberson did not live at the Poitevant Street address, and to find him guilty of possession of phencyclidine beyond a reasonable doubt. Accordingly, we find no merit to this assignment.

ASSIGNMENT OF ERROR 9

We further reject defendant’s contention that the maximum twenty year sentence imposed on defendant as a second offender is excessive. According to defendant, the trial judge sentenced him based upon the erroneous belief that he was distributing phencyclidine or possessed it with intent to distribute, resulting in an excessive sentence that frustrated the jury’s intent to find him guilty of a “lesser offense”.

Although the jury saw fit to find defendant guilty of simple possession instead of the charged offense of possession with intent to distribute, the verdict in no way restricts the trial judge’s discretion in imposing a permissible sentence, especially where the imprisonment penalty range for both offenses (possession and possession with intent to distribute) is the same.

At the sentencing hearing, the trial judge expressly stated that the jury’s guilty verdict of simple possession “can in no way close the court’s eyes ... to the facts of what was presented to the jury in terms of actual physical evidence”, i.e. the quantity of phencyclidine in defendant’s possession sufficient to manufacture eight thousand individual packets “to be distributed somewhere, at some time, most likely in this community.” The judge went on to note that defendant had previously been found in possession of a small quantity of the drug but “with much the same apparatus and other devices, and substances for cutting purposes that would again indicate that defendant at that time was most likely involved in the distribution of this drug”. The court further noted that defendant had previously pled guilty to simple possession of phencyclidine and was on probation at the time of his arrest for the instant offense.

Under these circumstances, we conclude the trial court did not mistakenly sentence defendant for the crime of possession with intent to distribute, but rather gave proper weight to the quantity of the drugs seized and defendant’s prior record in imposing the maximum penalty for this second offense of possession.

The transcript of the sentencing hearing further indicates the trial judge after meticulously considering and articulating the factors listed in LSA-C.Cr.P. Art. 894.1, found no mitigating circumstances for a lesser sentence. Indeed, he noted that there was an undue risk that defendant would commit other criminal activity during any period of a suspended sentence or probation, that defendant was in need of correctional treatment in a custodial environment that could be most effectively provided by his commitment to an institution, and that any sentence less than the maximum in this case would deprecate the seriousness of the defendant’s crime.

Considering the aggravating circumstances articulated by the trial judge, we do not find the maximum twenty year sentence, to run consecutively to the three year sentence for the prior offense, to be excessive. The large quantity of the drug in defendant’s possession and his commission of the offense while on probation for the same crime make his violation “egregious”.

Under the circumstances, we cannot say the maximum sentence imposed is constitutionally excessive as being “grossly out of proportion to the severity of the crime”. State v. Guajardo, 428 So.2d 468 (La.1983); State v. Telsee, 425 So.2d 1251 (La.1983).

Having so concluded, we affirm the conviction and sentence.

AFFIRMED.

      . Art. 770. Prejudicial remarks; basis of mistrial
      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:
      ******
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible....

      . Concerning defendant’s arrest, Officer Richard Marino testified, "We received information from ...", whereupon defendant’s attorney objected. Officer Joe Cutrer likewise testified, "Okay, on the date of the arrest, we had an informer that ... gave us some information pertaining to a PCP lab being operated ...” whereupon the defense attorney again objected.

      . Pursuant to LSA-R.S. 40:966(B)(2), the penalty for possession with intent to distribute phency-clidine is imprisonment "at hard labor for not more than ten years” and a mandatory fine "of not more than fifteen thousand dollars.” Under LSA-R.S. 40:966(C)(2), simple possession of phencyclidine likewise carries a prison term "at hard labor for not more than ten years” but only a possible fine “of not more than five thousand dollars.”


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Robert W. McDANIEL.
    No. KA-1651.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    William J. Guste, Jr,, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appel-lee.

      M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   GULOTTA, Judge.

Defendant appeals his conviction and six month sentence for simple escape. We affirm.

On August 5, 1983, Robert W. McDaniel, an inmate sentenced to Orleans Parish Prison on another charge, was assigned to a work detail painting Bradley School with three other inmates under the custody of Deputy Sheriff Lazzlo Radovich, who instructed them to remain on the school grounds. On that date, defendant requested and received permission on several occasions to go to the bathroom on the premises. He did not return after his last request, however, and was arrested in another area of New Orleans about one week later.

The Bill of Information charging simple escape stated that defendant “... did willfully and unlawfully depart from the lawful custody of the Criminal Sheriff of the Parish of Orleans and from a place where he was lawfully detained by said Criminal Sheriff, to wit: the WORK RELEASE PROGRAM....” After trial, defendant was found “guilty as charged” and sentenced.

Appealing, defendant assigns two errors: 1) that the State failed to prove defendant had escaped from a “work release” program as alleged in the Bill of Information; and 2) that the trial judge erred in curtailing the defendant’s cross-examination of a deputy sheriff aimed at establishing that defendant was not participating in a work release program at the time of escape. We disagree.

The offense of simple escape is defined in LSA-R.S. 14:110 A.(l) as “[t]he intentional departure, ... of a person imprisoned, ... from a place where such person is legally confined or from a designated area of a place where such person is legally confined or from the lawful custody of any law enforcement officer or officer of the Department of Corrections”. LSA-R.S. 14:110 A.(2) alternatively defines the offense as the failure of “a criminal serving a sentence and participating in a work release program authorized by law to report or return from his planned employment or other activity under said program at the appointed time”.

La.C.Cr.P. Art. 465 provides for short form indictments, and in Subpart 23 sets forth the form for simple escape: “A.B. escaped from C.D., a_(state official status of person escaped from); or A.B. escaped from_(state place of official detention).”

The Bill of Information, by its language, sufficiently charges a violation of simple escape as defined in LSA-R.S. 14:110 A.(l). It adds however, the ambiguous verbiage “the WORK RELEASE PROGRAM”, which appears to relate to a violation of LSA-R.S. 14:110 A.(2). Nonetheless, when these problem words are deleted, the information is unambiguous and clearly asserts a violation of sub-paragraph one of the statute. Under these circumstances we conclude that the words “WORK RELEASE PROGRAM” are mere surplusage. See La.C.Cr.P. Art. 486 and State v. Neslo, 433 So.2d 73 (La.1983). Accordingly, the Bill of Information is not defective, and the State was required to prove only that defendant had escaped from “lawful custody” as defined in LSA-R.S. 14:110 A.(l).

Deputy Sheriff Radovich testified that on the date of the incident, McDaniel had been assigned to a “work detail” to paint Bradley school. He responded affirmatively to the State’s inquiry whether McDaniel was “under his control and supervision” when the defendant unlawfully left the school grounds and did not return. The deputy’s statement in the record that McDaniel was an inmate assigned to “work release community service” shows that the deputy was confused about the difference between a work detail and a work release program. Nonetheless, this confusion does not detract from the evidence that clearly establishes a violation of subsection one of the statute.

Because we have concluded the problem language “work release program” is mere surplusage, we find no error on the part of the trial judge when he sustained the State’s objections to questions by the defense whether defendant had been paid for the work. The cross examination related to escape from a work release program and was neither relevant nor germane to a violation of the section of the statute charged. When we consider the entire testimony of Deputy Radovich, despite his apparent confusion in terminology, we conclude the evidence was sufficient to establish simple escape and the trial judge did not err in sustaining the State’s objection to evidence relating to payments for his work in a work release program.

Having so concluded, we affirm the conviction and sentence.

AFFIRMED.


author: GARRISON, Judge.

text:
    STATE of Louisiana v. David SINGLETON, Jr., Kenneth W. Pearson, and Eugene Jones.
    No. KA 1300.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Susan Scott Hunt, Asst. Dist. Attys., New Orleans, for plaintiff-ap-pellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

Defendants David Singleton, Jr., Kenneth Pearson and Eugene Jones were charged by bill of information with armed robbery in violation of La.R.S. 14:64. On May 12,1983, a jury found all three defendants guilty of attempted armed robbery and they were each later sentenced to serve fifteen years at hard labor. Defendants appeal these convictions and sentences.

The facts of this case are as follows: Robert Reed was walking in an uptown direction on Dryades Street on the night of February 19, 1983. Reed testified that he was knocked down to the ground and beaten by four youths who pulled his Sony Walkman headset off of his head. (The fourth assailant has been prosecuted separately in Juvenile Court.) One of the assailants hit him with what was described as a “black bat”. He was also struck with another weapon which he could not see.

Reed managed to escape from his assailants and fled with his robbers in close pursuit. A bicyclist, Michael Pottinger, witnessed this chase that was taking place. Upon seeing Pottinger, the four assailants gave up their pursuit of Reed and ran in another direction. Pottinger followed them for a short distance and noted the area in which they were heading. Another witness, Hubert Montamat, testified that he had seen four youths walk past his home only a minute before the victim had passed by on his walk. Moments later, Reed ran to Montamat’s house to seek help following the incident.

The police were called and both Reed and Montamat gave detailed descriptions of the assailants to the police. These descriptions included the facts that they were young Negro males, one wearing an orange ski mask, one wearing a Mardi Gras visor with flashing lights, and one wearing a blue jacket. Moments later, four persons meeting this description were spotted a few blocks away from the site of the robbery. Upon spotting these four young men, the police noticed the men discarding something. A search of the nearby area revealed an orange ski mask and a Mardi Gras visor with flashing lights. A “billy club” was found on the person of one of the suspects and a “slap jack” was found on the person of another. The four men were brought back to the scene of the robbery where the victim positively identified them by their faces and clothes.

At trial, the three adult defendants were again positively identified by the victim. Defendants deny robbing the victim and claim that they had met one another only moments before their arrests.

Although not alleged as an assignment of error, the sufficiency of evidence to support appellants’ convictions must be reviewed as per State v. Raymo, 419 So.2d 858 (La.1982). In assessing the sufficiency of evidence in a direct evidence case, the reviewing court must determine whether, viewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found the defendants guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

The appellants were convicted of attempted armed robbery. In order to support these convictions, the State had to prove that the appellants committed (1) an attempted theft; (2) of anything of value; (3) from the person of or the immediate control of another; (4) by use of force or intimidation; (5) while armed with a dangerous weapon. In this case, a Sony Walkman headset was taken from the victim after he was beaten with a billy club and another weapon which he could not see. The victim unhesitatingly identified the appellants as the men who robbed him. Viewing the facts in the light most favorable to the prosecution, the jury could have convicted the appellants of armed robbery. State v. Bruins, 407 So.2d 685 (La.1981); State v. Tucker, 405 So.2d 506 (La.1981).

Defendants’ only assignment of error is that the trial court erred in preventing the defense from attempting to impeach the credibility of the victim by showing that he made a prior inconsistent statement at another court proceeding.

Reed testified at trial that he recognized the three defendants by their faces and that one of the adults was wearing an orange ski mask. During the cross-examination of Reed, defense counsel asked him if he recalled testifying in Juvenile Court that he could not identify any of his assailants by face and that the orange hat was worn by the juvenile assailant. Reed answered that he did not recall whether or not he had made these statements. Defense counsel attempted to impeach the victim by having the mother of one of the defendants, Mrs. Yvonne Singleton, testify as to what she heard the victim state at the Juvenile Court proceeding in order to demonstrate that the victim had made a prior inconsistent statement. The trial judge sustained the State’s objection to the introduction of this testimony and refused to allow this witness to testify.

Each side has the right to impeach the testimony and credibility of every witness sworn on behalf of the other side. La.R.S. 15:486. La.R.S. 15:493 permits the credibility of a witness to be impeached by proof of any statement made contradictory to his testimony at trial. State v. Gomez, 365 So.2d 1313 (La.1978). La.R.S. 15:493 provides:

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

On cross-examination, Mr. Reed did not admit or deny making the prior statement in Juvenile Court; rather, he only stated that he could not recall this previous testimony. Therefore, because he did not distinctly admit making the prior statement, evidence that he did make it should have been admissible to attempt to impeach Reed’s credibility. The trial judge erred in sustaining the State’s objection to this offer of proof.

However, this error is not reversible. The facts of the Gomez case are on point with those of the instant case. In Gomez, the court held that if the defense had been permitted to impeach the witness, the most that could have been accomplished would have been to place the witness’ prior contradictory statement before the jury. In the Gomez case and in the instant case, the defense repeatedly made reference to the witness’ prior contradictory statement in its cross-examination of the witness. Therefore, the jury was fully informed of the nature and content of the prior contradictory statement and the defense achieved its ultimate goal of placing the contradictory statement before the jury in its cross-examination of the witness.

Additionally, the fact that the mother of one of the defendants was the witness who was going to be used to impeach the victim’s credibility would certainly have added an element of bias which would have detracted from this impeaching testimony. The evidence of the guilt of these defendants is overwhelming and the inability of the defense to use Mrs. Singelton's biased testimony could not possibly have contributed to the convictions. State v. Albert, 414 So.2d 680 (La.1982).

In supplemental briefs filed by defendants Pearson and Singleton, they allege that they were denied effective assistance of counsel. It is well settled that the issue of whether a defendant was denied effective assistance of counsel is more properly raised by application for a writ of habeas corpus in the district court, where a full evidentiary hearing may be conducted if warranted. State v. Harrison, 446 So.2d 423 (La.App. 4th Cir.1984); State v. Brown, 384 So.2d 983 (La.1980); State v. Malveaux, 371 So.2d 820 (La.1979).

In reviewing the record for errors patent, we note that in sentencing the defendants, the trial judge did not state that the sentences are to be served without benefit of parole, probation or suspension of sentence as required by the armed robbery statute, La.R.S. 14:64. However, neither the defendants nor the prosecution has raised this issue on appeal. In this case, the defendants alone have sought appellate review. Therefore, following the recent Louisiana Supreme Court decision of State v. Jackson, 452 So.2d 682 (La.1984), we will ignore this sentencing error because it is favorable to the defendants. To do otherwise would result in a chilling effect on the defendants’ right to appeal.

Finding no reversible error in the record before us, we affirm the convictions and sentences.

AFFIRMED.


text:
    DIXIE SAVINGS ASSOCIATION v. Vivian C. Smith KINCHIN.
    No. CA 1354.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      Gary A. Cotogno, Kehl, Pickering, Cotog-no & Delsa, New Orleans, for Dixie Sav. Ass’n.
    Plauche F. Villere, Jr., New Orleans, for defendant-plaintiff-in-reconvention Mrs. Vivian C. Smith Kinchen.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, denying Mrs. Kinchen’s action to have certified as a class either the loan recipients from December 1976 through December, 1978 who had made consumer home improvement discounted loans from Dixie Savings Association and where Dixie had held the funds in an escrow account or other definitions of a “class” as discussed below. From that judgment, plaintiff-in-reconvention appeals.

On December 6, 1977, Mrs. Kinchen made a home improvement loan from Dixie in the amount of $31,585.20, secured by a second mortgage and promissory note of the same date. She made monthly payments to Dixie until June 1, 1978, at which time problems developed between Mrs. Kin-chen and the contractor, Carousel Construction Company. No further payments were made. (Apparently, the work was not completed). On October 20, 1978 Dixie sued on the promissory note and Mrs. Kin-chen reconvened. Her reconventional demand, alleging violations of the Consumer Protection Act, 15 U.S.C. § 1601 et seq., Regulation Z of the Truth-In-Lending Act, 12 C.F.R. 226.1 et seq., the La. Consumer Credit Act, R.S. 9:3510 et seq., and state usury laws, forms the basis of the class action issue, although her individual recon-ventional demand is still live.

The trial judge denied Mrs. Kin-chen’s certification, stating in his written reasons that:

“The potential for loss of the right of actual damages to members of the class and the prorated reduction of recovery under 15 U.S.C. 1640(a)(2)(B) convinces me that a class action lacks superiority as a means of redress.”
C.C.P. Article 591 provides as follows: “A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:
(1) Common to all members of the class; ...”

As stated by this court in Compass v. Pan American Life Insurance Co., 443 So.2d 720 (App. 4th, 1984), mere allegations are insufficient:

“Clearly this article places the initial burden on the plaintiffs seeking to maintain a class action to establish the elements of numbers in the class, impracticability of joinder of the class members, and commonality of factual and legal issues among members.” At 721. (emphasis added)

In its “Answer to Interrogatory Number 6”, Dixie Savings stated that between December, 1976 and December, 1978 it made approximately 5800 loans using the allegedly defective Truth-In-Lending Statement. It further stated that in the case of 110 of those 5800 loans, “money was retained or otherwise held by the association for various periods of time subsequent (sic?) to settlement disbursement.”

Mrs. Kinchen’s motion to certify the class provided two suggested alternatives:

“A class involving those individuals who have received consumer home improvement discount (that is capitalized) loans utilizing rates authorized by the Louisiana Consumer Credit Law L.R.S. 9:3510 et seq. where some or all of the proceeds were retained by Dixie Savings Association in an escrow account or in some other fashion which loans were made by Dixie Savings Association over the period December, 1976 through December, 1978.
II.
In the alternative, ... mover requests the court to certify a class including all lenders (sic) from Dixie Savings Association using the same disclosure statement as was used in the loan to Mrs. Vivian C. Smith Kinchen during the period December, 1976 through December, 1978 consisting of two sub-classes, one of which involves those individuals who received consumer home improvement discount (that is capitalized) loans utilizing rates authorized by the Louisiana Consumer Credit Law, L.R.S. 9:3510 et seq. where some or all of the proceeds were retained by Dixie Savings Association in an escrow account or in some other fashion were made by Dixie Savings Association over the period December, 1976 through December, 1978, and the second sub-class will be all other loans using the same disclosure statement as those who did not have home improvement loans which were escrowed.”

Under Compass, above, the burden is on Mrs. Kinchen to establish three essential elements:

1. numbers;
2. impractability of joinder; and
3. commonality of issues.

Mrs. Kinchen has not established one of these elements, much less all three. It is apparent to this court that the problem in defining a suitable class stems from the fact that there is no commonality on a cluster of factors, although one or two factors may exist in different cases. Additionally, we have no clear view of the numbers of potential plaintiffs under the various “class” proposals. Without proof of the potential numbers, it is impossible to determine if joinder would be “impracticable.” Plaintiff-in-reconvention has made no showing and offered no evidence whatsoever on the issue of impracticability of join-der.

Accordingly, plaintiff has failed to meet the guidelines for a class action set forth in Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La., 1975); Williams v. State, 350 So.2d 131 (La., 1977); State ex rel. Guste v. General Motors Corp., 370 So.2d 477 (La., 1979) and Compass, above. The trial court was correct in its judgment and, accordingly, the judgment below is affirmed.

AFFIRMED.

      . See Also: Kinchen v. Gilworth, et al., 454 So.2d 1130 (4th Cir., 1984).


text:
    STATE of Louisiana v. Clarence FLUKER.
    No. KA 1528.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    George R. Simno, III, Gertler & Gertler, New Orleans, for defendant-appellant.
    Before REDMANN, GARRISON and BARRY, JJ.
   GARRISON, Judge.

The defendant, Clarence Fluker, was charged by bill of information with manslaughter in violation of R.S. 14:31. On January 26, 1983, he was found guilty as charged by a twelve member jury and was later sentenced to serve twenty-one years at hard labor without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction and sentence.

The facts of this case are as follows: On September 29, 1982, the defendant and Bruce Phillips became involved in an argument which stemmed from a call in a neighborhood football game. This argument eventually led to a physical confrontation in which Phillips struck the defendant several times in the face. After harsh words were exchanged by the two men, the defendant ran across the street to his father’s house where he searched for and found a revolver. He ran back to the scene of the fight and fired one shot into the air. He fired a second shot in Phillips’ direction but this shot did not hit anyone. The third and fourth shots fired by the defendant hit Phillips in the head and caused fatal injuries. After the shooting, the defendant ran back to his father’s house where he returned the revolver and then quickly left the premises. The defendant surrendered to the police shortly thereafter. He testified at trial that it was not his intention to hurt Phillips; rather, he only wanted to scare him.

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

The sufficiency of evidence to support appellant’s conviction must be reviewed in accordance with State v. Raymo, 419 So.2d 858 (La.1982). In assessing the sufficiency of evidence in a direct evidence case, the reviewing court must determine whether, viewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In this ease, the appellant was convicted of manslaughter in violation of La. R.S. 14:31. La.R.S. 14:31 defines the offense of manslaughter as follows:

Manslaughter is:

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

Willie Moore, an eyewitness to this incident, testified at trial that following an argument and fist fight with Phillips, the defendant ran to his father’s house and immediately returned to the scene of the fight armed with a gun. The defendant shot the unarmed Phillips twice in the head and these shots caused Phillips’ fatal injuries. Viewing the facts in the light most favorable to the prosecution, the jury could have convicted the appellant of manslaughter.

On appeal, the defendant alleges seven assignments of error:

1) The trial court erred in refusing to allow the defense to make an opening statement prior to calling defense witnesses.
2) The trial court erred in refusing to grant the defendant’s motion for mistrial based on the improper remarks made by the District Attorney during voir dire.
3) The trial court erred in denying the defendant’s motion in limine on the issue of prosecutor’s remarks with respect to already having given the defendant a break in determining what charge would be filed against him in court by way of bill of information.
4) The trial court erred in allowing the prosecutor to make improper remarks in his opening statement.
5) The trial court erred in refusing to give the defendant’s requested jury charges on the issues of a) negligent homicide; b) criminal negligence; c) compulsion; and d) justification.
6) The trial court erred in allowing the prosecutor to make improper remarks during closing argument.
7)The sentence imposed by the trial court upon the defendant is excessive.

ASSIGNMENT OF ERROR # 1

The defense alleges as error the refusal of the trial judge to allow their opening statement to be made after the close of the State’s case and prior to the calling of defense witnesses. In the transcript of this case on page 10, the court reporter noted:

“... Mr. McMahon then conducted the state’s opening statement, during which the defense lodged no objections, and after which the defense waived their opening statement, resting upon their presumption of innocence, at which time the Court instructed the jury as to the law that this should not be held against the defendant and that opening statements are not to be taken as evidence in the case.”

The defense contends that the record does not accurately reflect what transpired at this point in the trial. Rather, defense counsel claims that he reserved his right to make an opening statement at a later time. Only that which is in the record may be reviewed on appeal in criminal cases. State v. Whorton, 440 So.2d 858 (La.App. 2nd Cir.1983); State v. Oubichon, 422 So.2d 1140 (La.1982). Therefore, it must be concluded that the record is accurate and that the defendant waived his right to an opening statement prior to trial.

As for defendant’s argument that the trial judge may alter the normal course of the trial proceedings and, thus, could have allowed the defense to make an opening statement at the close of the State’s case, the case of State v. Lowdins, 412 So.2d 1349 (La.1982), dealt with the identical situation. In Lowdins, the trial judge had refused to allow defense counsel to make an opening statement at the close of the State’s case and the Louisiana Supreme Court found no abuse of discretion on the part of the trial judge because defense counsel made no compelling argument to show that the trial court’s refusal to vary the normal order of trial prejudiced the defendant. Defense counsel in the instant case certainly has made no such showing of prejudice to the defendant. Therefore, this assignment of error is without merit.

ASSIGNMENTS OF ERROR # 2, # 3, and #4

These three assignments can be consolidated into one argument that the trial judge erred in refusing to grant a mistrial based on the improper remarks made by the district attorney during voir dire and the opening statement. Defendant’s grievance is with the following remarks made by the district attorney during voir dire:

“... If, however, the state has proved him guilty in your mind, beyond a reasonable doubt, it’s your duty as jurors to pronounce him guilty. Sympathy is not good enough. This is a manslaughter charge. The state has already had sympathy by not charging him with anything stronger than that.” Tr. p. 8.

The defense lodged no objections to similar remarks made by the district attorney during the opening statement. Article 770 of the Code of Criminal Procedure outlines the bases for a mandatory mistrial:

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.

The remarks made by the district attorney do not fall within the scope of Article 770 and were not so prejudicial to the defendant so as to warrant a mistrial. It should be noted that defendant only requested a mistrial and did not request an admonition to the jury by the judge.

Even if these remarks were found to be improper, a conviction will not be reversed unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Sharp, 418 So.2d 1344 (La.1982). We do not find this to be the situation in the instant case. Because the trial judge properly denied defendant’s motion for mistrial, this argument is also without merit.

ASSIGNMENT OF ERROR # 5

The defense contends that the trial court erred in refusing to instruct the jury on the issues of negligent homicide, criminal negligence, compulsion, and justification. Code of Criminal Procedure Article 807 provides, in pertinent part:

“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.”

However, the case of State v. Telford, 384 So.2d 347 (La.1980), clearly states that requested special charges must be supported by the evidence presented at trial because the trial court is not required to instruct the jury on abstract principles of law. In the instant case, the trial judge adequately instructed the jury as to all of the elements of manslaughter which had to be proven beyond a reasonable doubt.

As for defendant’s request that charges relating to negligent homicide and criminal negligence be given, the definitions of these crimes are as follows:

Negligent homicide is the killing of a human being by criminal negligence. La.R.S. 14:32;
Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduet amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. La.R.S. 14:12

As pointed out in the State’s brief, the defendant admitted his intent to commit an aggravated assault in that it was his intention to scare Phillips with the gun. Because of this admitted criminal intent, the defendant’s request for these two charges was correctly denied. In reference to the requested charges on compulsion and justification, no evidence was presented at trial which would support this self-defense theory urged by the defendant. On the contrary, the facts of this case indicate a vicious killing in which at least three shots were fired at an unarmed man who in no way gave the defendant any reason to believe that the defendant’s own life was in danger. Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR # 6

The defendant argues that the trial court erred in allowing the prosecutor to make improper remarks during the closing argument. The prosecutor again made reference to the State’s sympathy toward the defendant in not charging him with anything greater than manslaughter. The issue of the alleged impropriety of this remark has already been addressed in Assignments of Error # 2, # 3 and # 4 above. Additionally, the defendant contends that the trial judge improperly denied his request for mistrial and admonitions based on the prosecutor’s reference in closing argument to the defendant’s commission of another crime in that he discharged a firearm within the city limits. Defendant bases his argument for mistrial on the portion of C.Cr.P. 770 which states that a mistrial shall be ordered by the trial judge when a remark is made referring to “another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” The prosecutor’s remark referred to a lesser included offense in the instant charge of manslaughter. Both offenses arose out of the same incident; therefore, this was not a reference to “another crime” as contemplated by C.Cr.P. 770. Article 774 which defines the scope of closing arguments states:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.”

Therefore, because evidence was admitted at trial as to defendant’s use of a firearm within the city limits, these remarks by the prosecutor were within the scope of closing argument. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 7

Finally, the defendant contends that the trial court imposed an unconstitutionally excessive sentence. Defendant was given the maximum sentence for manslaughter of twenty-one years at hard labor, and, as required by C.Cr.P. 893.1, without benefit of parole, probation or suspension. Defendant argues that the trial judge erred in not ordering a presentence investigation to determine any mitigating factors in defendant’s history which would permit a lighter sentence. The Louisiana Supreme Court has held that there is no mandate that a presentence investigation be ordered; rather, it is merely an aid to the court and not a right of the accused. State v. Bell, 377 So.2d 275 (La.1979).

Defendant also alleges that the trial judge failed to comply with C.Cr.P. Art. 894.1 which mandates that the trial judge articulate his reasons for a sentence to ensure that the sentence has been particularized to fit the offense and the offender. A review of the transcript of the sentencing hearing clearly indicates that the trial judge complied with the 894.1 guidelines in sentencing the defendant.

As for the defendant’s contention that the trial judge announced that it was his policy to give maximum sentences for manslaughter convictions, there is no evidence of this in the record. Considering the vicious manner in which this killing was committed, the maximum sentence of twenty-one years at hard labor is not excessive and was not a manifest abuse of the trial judge’s discretion.

Therefore, we affirm the conviction and sentence.

AFFIRMED.

      . La.C.Cr.P. 893.1 states:
      When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
      (1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
      (2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
      Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.


text:
    STATE of Louisiana v. Malcolm Otis MORGAN.
    No. KA 1548.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GARRISON, KLEES and WARD, JJ.
   GARRISON, Judge.

The defendant, Malcolm Morgan, was charged by grand jury indictment with first degree murder in violation of La.R.S. 14:30. A twelve member jury found the defendant guilty as charged. The sentencing hearing was declared a mistrial by the judge due to the inability of the jury to agree upon a verdict. The judge later sentenced the defendant to life imprisonment without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction and sentence.

The facts of this case are as follows: On June 9, 1981 at approximately 9:30 p.m., Andrew Manuel was fatally shot in the head in a stairwell on Thayer Street in the Fisher Housing Project in New Orleans. Manuel was found by the police lying face up in the stairwell and all of the pockets on his clothing had been turned inside out. No money or other property was found on the victim.

At trial, Viola Mitchell, Manuel’s common-law wife, testified that she saw Manuel get out of his car at approximately 8:30 p.m. on the evening of June 9, 1981. He called to Mitchell from his car and as she walked out of her apartment and into the stairwell, she saw Morgan at the bottom of the stairs dressed in what appeared to be either a green Army fatigue outfit or a green raincoat. He was also wearing a wig on his head. This unusual appearance frightened Mitchell and prompted her to run back into her apartment. Several minutes later, she heard a shot. When she went outside shortly thereafter, she saw Manuel lying on the steps with a gunshot wound to his head. Mitchell also testified that shortly before she saw the defendant in the stairwell, she had seen Irving Johnson approach the same stairwell. Mitchell did not give the defendant’s name to police investigators on the evening of the shooting.

Irving Johnson testified at trial that he was with Morgan on the evening of June 9, 1981 in the Fisher Housing Project. According to Johnson, the defendant sent him to Viola Mitchell’s apartment to find out if anyone was at home. When Johnson returned, the defendant was restraining Manuel with his arm and was pointing a gun to Manuel’s head. Johnson heard the defendant telling Manuel to surrender his money or he would be killed. Because Manuel refused to give his money to the defendant, the defendant instructed Johnson to go through Manuel’s pockets and to take everything. Johnson complied while the defendant continued to restrain Manuel. Johnson testified that after this robbery, he saw the defendant shoot Manuel. Both Johnson and the defendant then fled from the scene. According to Johnson, the defendant was wearing a green raincoat and mask at the time of the shooting. Johnson admitted on cross-examination that he had lied under oath at a previous court proceeding at which he stated that he was not at the scene of the shooting and the robbery. However, he claimed that he did so because he was frightened at the time.

An eyewitness to the entire incident, Willie Stewart, testified at trial that he saw the defendant shoot Andrew Manuel on June 9, 1981. Stewart said that Irving Johnson was with the defendant and that the defendant was restraining Manuel with his arm. He also stated that the defendant had a gun pointed to Manuel’s head while Johnson searched through Manuel’s pockets. Although Stewart actually saw the defendant shoot Manuel, he testified that he did not come forward at the scene for fear that he would be killed because he was an eyewitness to this crime. Prior to trial, Stewart picked the defendant out of a photographic lineup conducted by Detective Marvin Cook of the New Orleans Police Department. He also identified the defendant at trial as the man that he saw shoot Andrew Manuel.

Another witness for the State was Calvin Lewis who testified that on June 7, 1981, two days prior to the Manuel homicide, he and the defendant were walking through a schoolyard and found a gun. Lewis took the gun home with him. On June 9, the defendant came to Lewis’ home and got the gun. According to Lewis, the defendant returned shortly after midnight and told Lewis that he had shot someone with the gun. Morgan ran away from the Lewis home after being threatened by Lewis. Lewis then discarded the gun in a nearby garbage can.

As an alibi, the defense presented witnesses (the defendant’s mother and sister) who claimed that the defendant was on their front porch at the time of the shooting. Calvin Williams testified that he picked up the defendant at 11 p.m. on June 9th and that they went to Williams’ home where the defendant remained until the next morning. The defense also presented testimony by Allen Simmons who claimed that two days after the shooting, he heard Willie Stewart state that he did not know who shot Andrew Manuel.

A review of the record for errors patent reveals that the trial court failed to comply with C.Cr.P. 873 which states:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

In this case, the defendant was sentenced on the same day that his motion for new trial was denied. However, the Louisiana Supreme Court in State v. Brogdon, 426 So.2d 158 (La.1983), held that failure to comply with the twenty-four hour delay is harmless error in the absence of a showing of actual prejudice to the defendant. Because there was no showing of prejudice in this case, this was harmless error.

On appeal, the defendant alleges twelve assignments of error.

ASSIGNMENT OF ERROR # 1

The defense contends that the trial court erred in denying defendant’s motion to compel discovery of a State witness’ juvenile file, rap sheet, statements to coun-sellors and psychiatric reports. This particular State witness was Irving Johnson, a juvenile who was a co-participant in this robbery/murder and who is now serving a sentence at the Louisiana Training Institute until his twenty-first birthday. Alternatively, the defense contends that the failure of the trial judge to make an in camera inspection of these documents was reversible error.

The defendant claims that the denial of this motion violated his constitutionally guaranteed right to confrontation by way of effective cross-examination. The defense cites the recent case of State v. Smith, 437 So.2d 802 (La.1983) which states:

“When a defendant moves for production of the juvenile records of a witness the trial court is called upon to. determine whether the impeachment value of these adjudications is outweighed by the state’s interest in maintaining the confidentiality of juvenile records.” Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347 (1974); State v. Toledano, 391 So.2d 817, 820 (La.1980).

In the Smith case, the court remanded the case for submission to the trial judge of the witness’ record of juvenile adjudications for a determination of whether its contents were required for a fair determination of the defendant’s guilt or innocence.

However, as stated in the State’s brief, these cases deal with disclosure of the witness’ record of juvenile adjudications. The State has already produced for the defense Johnson’s rap sheet which includes his criminal record. The other information requested by the defense (i.e. statements to counsellors and psychiatric reports) is arguably undiscoverable work product of the State and privileged information. Although the trial judge could have compelled the State to produce Johnson’s juvenile file for the defense and could have made an in camera inspection of this file, the failure to do so was harmless error in light of the fact that Johnson’s criminal record was produced. That alone provided a sufficient basis for an effective cross-examination as to the credibility of the witness. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 2

The defense argues that the trial court erred in denying defendant’s motion to compel disclosure of all evidence favorable to the defendant. The motion was based upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which states that suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. However, the recent case of State v. Prudholm, 446 So.2d 729 (La.1984) cites the case of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), in further explaining the Brady rule as follows:

“If a general request, or no request at all, is made for exculpatory materials a conviction will only be overturned if the omitted evidence creates a reasonable doubt that did not otherwise exist.”

In this case, the defense requested disclosure of any existing prior statements made by the State’s witnesses to investigating officers. The State answered that no such statements existed. Defendant claims that the State had a continuing duty to produce any such exculpatory material which surfaced and that Irving Johnson’s testimony at trial in which he stated that he had previously lied under oath at a bail hearing proved the existence of exculpatory material and the failure of the State to disclose this material warrants a remand of this case.

The request made by the defense was a general one in that they were unsure whether any exculpatory statements by State witnesses existed. This omitted evidence does not create a reasonable doubt which did not otherwise exist because testimony as to Johnson’s false prior statements was presented in detail at trial and was never suppressed by the State. Therefore, according to the Prudholm case, this conviction should not be overturned because of the denial of this motion and this assignment of error is without merit.

ASSIGNMENTS OF ERROR # 3, 5, 7 and 9

In these assignments of error, the defendant contends that identification procedures used in this case constitute reversible error. In assignment # 3, the defense alleges that during the hearing on the Motion to Suppress Identification, a sequestration order was violated when State witness Irving Johnson remained in the courtroom during testimony of another State witness concerning identification of the defendant as the perpetrator of the offense. The defense then filed a Motion to Prohibit Use of Testimony of the Witness and a Motion to Quash the Indictment based upon the violation of the sequestration order. Both motions were denied by the trial judge.

C.Cr.P. Art. 764 provides:

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

This article vests discretion in the trial judge to disqualify a witness when a rule of sequestration has been violated. However, a trial judge’s ruling on this issue will not be disturbed on appeal absent a clear showing of an abuse of his discretion. State v. Kimble, 407 So.2d 693 (La.1981).

In this case, Johnson was present at a pre-trial motion hearing at which Detective Cook testified as to photographic lineup procedures used in this case. Johnson’s trial testimony did not include any mention of a photographic lineup because Johnson’s identification of the defendant did not involve a photographic lineup. Therefore, the trial judge’s decision to allow Johnson to testify at trial was not an abuse of his discretion.

Additionally, the defendant contends that a photographic lineup shown to State witness Willie Stewart was suggestive and should have been suppressed. He contends that the pre-trial photographic lineup shown to Stewart contained six photographs, five bearing a 1979 date and the sixth, the defendant’s photograph, bearing a 1980 date. This does not appear to be so suggestive as to warrant a reversal of defendant’s conviction.

However, in determining whether a suggestive out-of-court identification procedure is outweighed by the reliability of the identification, we must apply the five factor test set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) which includes:

(1) the opportunity to view
(2) the degree of attention
(3) the accuracy of the description
(4) the witness’ level of certainty
(5) the time between the crime and the confrontation.

In the Manson case, the Supreme Court stated that even a suggestive identification procedure does not violate due process as long as the identification possesses sufficient aspects of reliability.

First, it should be noted that there is no indication in the record that Stewart saw the dates on these pictures. The pictures in this case were not even necessary for Stewart to identify the defendant in light of the fact that he was already acquainted with the defendant. Stewart’s detailed description of the crime included the positions of the defendant, the victim and Johnson throughout the entire incident. He saw the defendant point a gun to the victim’s head and he was within such close range of the scene of the crime that he heard the defendant threaten to kill the victim if the victim did not comply with his demands. He testified that he actually saw the defendant shoot the victim in the head after Johnson had gone through the victim’s pockets. This descriptive account of the robbery/murder certainly satisfies the test set forth in Manson. This assignment of error is without merit.

Assignments of Error # 5, # 7 and # 9 are not briefed, therefore, they are deemed abandoned. State v. Perry, 420 So.2d 139 (La.1982); State v. Allen, 431 So.2d 808 (La.App. 4th Cir.1983).

ASSIGNMENT OF ERROR # 4

In his fourth assignment of error, the defendant alleges that the trial court erred in denying his motion for mistrial based upon the failure of the State to give notice prior to trial of an inculpatory statement which was made at trial by a State witness. Defendant bases this argument on C.Cr.P. 768 which states:

Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory-statement shall not be admissible in evidence.

Pursuant to this article, the State filed a notice of intent to use an inculpatory statement made by the defendant to Calvin Lewis on June 10, 1981 at approximately 1:00 a.m. At trial, Lewis testified that on the evening of June 9, 1981, the defendant came to his home to get Lewis’ gun. The defendant returned the gun shortly after midnight on the same evening and told Lewis that he had shot someone with it. A statement made after midnight was correctly identified by the State in its notice as a statement made on June 10, 1981. This assignment of error is without any merit whatsoever.

ASSIGNMENTS OF ERROR # 6 and # 8

In assignment of error #6, the defendant contends that the trial court erred in denying defendant’s motion for mistrial based upon a prejudicial and unresponsive answer from a state witness.

In this assignment, the defendant objects to the following testimony by Viola Mitchell:

Q. And how long before or after that did you see Malcolm Morgan?
A. I seen him before, because he was on his way upstairs, I guess to shoot me, maybe. (Tr. p. 97)

Counsel for the defendant moved for a mistrial at that time and the motion was denied. Because the remark was made by a witness, C.Cr.P. Art. 770 relating to mistrials does not apply because this article refers to remarks made by the judge, district attorney or a court official. This remark would normally fall within Art. 771 as a basis for an admonition to the jury; however, the defense did not request - an admonition. An admonition has been held to be sufficient to cure any prejudice resulting from remarks made by witnesses which are voluntary and unresponsive to the prosecutor’s questions when these questions do not indicate bad faith on the part of the State. State v. Joseph, 437 So.2d 280 (La.1983). Because no admonition was requested as to these remarks, assignment of error # 6 is without merit.

Defendant also contends in assignment of error # 8 that the trial court erred in overruling defendant’s objection to the following speculative testimony by State witness, Willie Stewart:

Q. Why didn’t you tell the police, right away?
A. Well, they had too many people around, you know. I had to think about it, trying to save my life. If I would have went and told them people what happened on the scene, right then and there, while they were still around the project, they might have shot me, just to get rid of me for being a witness. (Tr. p. 169)

Defense counsel objected to this remark by the witness but did not move for a mistrial or an admonition. In his answer, Stewart was attempting to explain his reasons for not coming forward as a witness immediately after the homicide. An admonition to the jury at this point would have cured any prejudice which resulted from this remark; however, an admonition was not requested. Although the objection to this remark probably should have been sustained, the failure of the trial judge to do so does not constitute reversible error. These assignments of error are without merit.

ASSIGNMENT OF ERROR # 10

In his tenth assignment of error, the defendant contends that the trial court erred in permitting the prosecutor to repeat improper questions even after sustaining defense counsel’s objections to the questions. The defense contends that the following portion of cross-examination of the defendant constitutes reversible error:

“Q. Do you have any idea why he would come in here and lie about giving him a gun?
BY MR. LAWRENCE:
Your Honor, I object to him asking— BY THE COURT:
Objection sustained.
EXAMINATION BY MR. DUBELIER:
Q. Do you think the man is lying? BY MR. LAWRENCE:
Objection.
BY THE WITNESS: (Defendant Malcolm Morgan)
I know he’s lying.
EXAMINATION BY MR. DUBELIER:
Q. You know he’s lying?
A. Yes.
Q. Why do you think he’s lying?
BY MR. LAWRENCE:
Same objection. (Tr. p. 272)

A case cited by the defendant, State v. Richardson, 337 So.2d 210 (La.1976), states that although such cross-examination tactics are not encouraged and are improper, they do not constitute reversible error where there is no showing of undue prejudice to the defendant. There has been no such showing of prejudice in this case. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 11

Defendant originally assigned as error the trial court’s refusal to give defendant’s special requested jury charges. However, defendant specifically abandoned this assignment of error in his brief due to the fact that the imposition of the sentence of life imprisonment renders this assignment moot.

ASSIGNMENT OF ERROR # 12

In his final assignment of error, the defendant claims that the trial court erred in refusing to grant defendant’s motion for new trial based upon his claim that the evidence was insufficient to support his conviction. Specifically, the defendant contends that the State failed to prove an essential element of the offense charged: that defendant had a specific intent to kill or to inflict great bodily harm. Additionally, he alleges that contradictory testimony by defense witnesses raised reasonable doubt as to defendant’s guilt.

A conviction must be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The defendant was convicted of first degree murder in violation of La.R.S. 14:30 which includes the killing of a human being when the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration of an armed robbery. At trial, the defendant was positively identified by two eyewitnesses as the person who shot the victim in the head after he and Irving Johnson robbed him. The testimony by the defendant’s mother and sister which indicated that the defendant was with them at the time of the shooting was apparently not believed by the jury. Additionally, the fact that the defendant shot his victim at close range creates an inference of his specific intent to kill or to inflict great bodily harm. State v. Noble, 425 So.2d 734 (La.1983). Therefore, viewing the evidence in the light most favorable to the prosecution, the jury could have found the defendant guilty of first degree murder beyond a reasonable doubt.

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

AFFIRMED.

      . Johnson is a fifteen year old boy who is now incarcerated at the Louisiana Training Institute for a manslaughter conviction stemming from the Andrew Manuel homicide.


text:
    STATE of Louisiana v. Patrick MALONSON and Charles Brickley.
    No. KA 1623.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Criminal Div., Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    Before GARRISON, KLEES and WARD, JJ.
   GARRISON, Judge.

The defendants, Patrick Malonson and Charles Brickley, were charged by bill of information with possession of pentazocine in violation of La.R.S. 40:967(C)(1). On July 6, 1983, a six member jury found the defendants guilty as charged. They were both sentenced to serve five years at hard labor. Defendants appeal these convictions and sentences.

The facts of this case are as follows: On March 8, 1983 at approximately 12:30 a.m., Officer Michael Bossetta and Sergeant Patrick Frickey of the New Orleans Police Department were traveling in an unmarked police ear near the intersection of Orleans Avenue and Claiborne Avenue when they spotted the defendants engaged in what appeared to be a narcotics transaction. This area was known by the officers to be highly active in narcotics traffic. They first observed Malonson handing what appeared to be money to Brickley. Brickley then handed something to Malonson in a cupped hand. Neither policeman could see what Brickley handed to Malonson. As the officers stepped out of their car, Malonson began to walk away from them and dropped several foil packets on the ground. After apprehending both defendants and placing them against the police car, Sergeant Frickey retrieved six packets containing talwin (pentazocine) and pyribenza-mine , commonly known as “T’s and Blues”. A search of the men disclosed that Brickley had $109.00 in his possession. Both men were then arrested and charged with possession of pentazocine.

At trial, defendant Malonson claimed that he was walking home on March 8, 1983 when he saw Charles Brickley with whom he was well acquainted. According to Malonson, the two men exchanged greetings and shook hands. Malonson testified that he and Brickley were then arrested for drug possession. Both men deny that any drug transaction took place on the night in question.

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

Counsel for defendant Brickley alleges as an assignment of error that insufficient evidence exists to support Brickley’s conviction for possession of Talwin. According to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), a conviction must be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find that the essential elements of the crime charged have been proven beyond a reasonable doubt. When a case involves circumstantial evidence, La. R.S. 15:438 also requires:

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

The case of State v. Wright, 445 So.2d 1198 (La.1984), states that R.S. 15:438 is not a completely separate test from Jackson; rather, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. The test enunciated in La.R.S. 15:438 is merely a component of the more comprehensive reasonable doubt standard. State v. Wright, supra.

Sergeant Frickey testified that he saw the defendant Malonson discarding something and that an immediate search of the area revealed six sets of “T’s and Blues”. Viewing the direct evidence in the light most favorable to the prosecution, a rational trier of fact could have found the defendant Malonson guilty of possession of pentazocine. The crucial inquiry in this case is whether the evidence, both direct and circumstantial, establishes that the defendant Brickley exercised actual or constructive possession of the drugs by having them under his dominion or control. The recent case of State v. Smith, 441 So.2d 739 (La.1983) involved an almost identical factual situation as the instant case. In the Smith case, as in the instant case, the policemen witnessed an exchange of money and an unknown object between two men in an area known for drug transactions. One of the men then dropped a tin foil package when he noticed the nearby policemen. In the Smith case and in the present case, there was direct evidence (1) of an exchange which appeared to be a drug sale, (2) of a search which yielded money ($109.00) possessed by one participant in the exchange (Brickley); and (3) of a discarding of a package of drugs by one of the two participants (Malonson). Therefore, the overall evidence in this case was sufficient for a rational juror to conclude beyond a reasonable doubt that Brickley had knowledge of and dominion and control over the package of drugs shortly before they were discarded by Malonson. State v. Smith, supra. This assignment of error is without merit.

In his pro se brief, defendant Malon-son argues that the trial court erred in denying his motion to quash the testimony of Officer Bossetta. He contends that Officer Bossetta testified at the Motion to Suppress hearing that he only assumed that he had seen a drug transaction, whereas, at trial, he testified that he had definitely observed a drug transaction. The transcript of the Motion to Suppress hearing is not included in the record. However, even if this slight discrepancy in testimony occurred, this could not have influenced the verdict so as to constitute reversible error. This assignment of error is without merit.

Defendant Malonson also contends that possession of Talwin is not prohibited under the Louisiana Controlled Dangerous Substances Statute. Talwin is the trademark name for pentazocine which is a Schedule II drug listed in La.R.S. 40:964 and its unauthorized possession is proscribed by La.R.S. 40:967(C)(1). This assignment of error is also without merit.

For the reasons discussed above, we affirm the convictions and sentences of the defendants.

AFFIRMED.

      . Pyribenzamine is not a controlled substance and its possession is not proscribed by the Louisiana Criminal Statutes.

      . Talwin is the trademark name for pentazo-cine,


author: GARRISON, Judge. BARRY, Judge,

text:
    Mrs. Danuta KROTOSKI v. Dr. Wojciech KROTOSKI.
    No. CA 1645.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Milton E. Brener, Garon, Brener & McNeely, New Orleans, for plaintiff/appel-lee.
    Joseph R. McMahon, Jr., New Orleans, for defendant/appellant.
    Before REDMANN, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dated May 20, 1983 granting joint custody to Dr. and Dr. Krotoski, who were divorced in July of 1982. Prior to the instant action, the mother had custody of the child and the father had broad visitation which he utilized religiously.

At present, the mother and daughter reside at the family home on Pine Street in New Orleans and the daughter attends Academy of the Sacred Heart.

The father originally resided and worked in New Orleans for the Public Health Service, but when the New Orleans facility closed, he accepted a job with the Health Service at the Hansen’s Disease Center in Carville. He resided in a trailer in Convent, Louisiana, until his recent purchase of a house in Baton Rouge.

The mother, having recently received a Ph.D. applied for several jobs, including one at Tulane University and one at L.S.U. She received a number of out-of-state job offers, but none locally. The out-of-state job offers included Harvard, the University of Illinois and the University of California in Irvine. Both of the Krotoskis are originally from the Irvine, California area and both maternal and paternal grandparents, aunts, and uncles reside in Irvine. The mother accepted the job in Irvine. Thus it is apparent that the child will be leaving the New Orleans area regardless of which custody plan were implemented.

Each parent submitted an individual custody plan from which the trial court fashioned its plan.

Appellant raises two issues on appeal:

1. The lower court abused its discretion in allowing a minor child to be taken out of this jurisdiction thereby defeating the mandates of the joint custody provisions of the law.

2. The custody awarded is not true joint custody.

The first specification of error is a double-edged sword that cuts both ways. Although appellant argues that appellee seeks to remove the child from this court’s jurisdiction, appellant admits seeking to do the same thing. Petitioning the court for permission to remove the child is the proper action to be taken and was done in the instant case. Accordingly, this issue is without merit and will not be further addressed.

Turning to the second specification of error, the trial judge’s plan provides that the child reside as follows:

“During the school year the child is to reside with her mother in California; during the summer (school) vacation period the child is to reside with her father. The first two weeks of the child’s summer vacation shall be spent with the mother; thereafter until one week before school begins in the Fall, the time is to be spent with her father. Additionally, the child is to spend the Christmas and Easter Holiday periods (off school) with her father.”

Appellant argues that this provision does not constitute true “joint” custody and that true “joint” custody would occur only if the child were to alternate school years in California and Baton Rouge with corresponding alternating vacation custody. Both experts testified that this scheme would be so disruptive to the child’s development that it would result in permanent damage to the child.

Under the trial judge’s plan both parents retain joint decision-making ability in the areas of school attendance, religious training, medical care and treatment, and activities. Both parents receive duplicate report cards, progress reports, medical records, etc. Both parents pay child support and the plan specifically provides:

“Both parents are to keep one another informed as to their respective addresses and phone numbers. They are to confer with each other regularly by telephone or in any other manner mutually agreeable regarding the welfare of and plans for the child. They are to share jointly in the decision making process for the health, education, care and development of this child.”

The wisdom of Solomon and the chicanery of Mr. Bill notwithstanding, this court has still not determined how to divide a child in two equal halves or how to order one tiny person to be in two places at the same time. This court is still bound by the laws of physics and a perfect 50/50 split is not feasible over a distance of 2,000 miles. While 2,000 miles is an extreme case, even if both parents were located in the same city, it would make no difference in the outcome because joint custody means a 50/50 sharing of responsibility, not a 50/50 sharing of time.

As so aptly stated by Judge Barry in Plemer v. Plemer, 436 So.2d 1348, 1350 (App. 4th, 1983):

“We interpret ‘joint custody’ to mean a physical sharing of the child in addition to both parents participating in decisions affecting the child’s life — e.g., education, medical problems, recreation, etc. It’s obvious no plan, with or without ironclad guidelines, could possibly resolve the infinite number of conflicts which can and will arise between divorced parents in their quest to share their child’s life. It’s a fact of life that when parents battle over their children, judges are cast as ad hoc parents. But the legal bottom line remains the same— our only concern is the best interests of the child.... We don’t interpret joint custody to mean a fifty-fifty sharing of time. Each case will depend on the child’s age, the parents’ availability and desires, and other factors. Considering the child's age and the sole custody enjoyed by Mrs. Hughes in the past, we find the court’s plan reasonable, feasible and in the best interest of Michele.” (emphasis added).

Lastly, appellant argues that the school year/vacation custody split arrangement should be upheld but that appellant should be granted custody during the school year instead of appellee.

In both locations the child is to continue her parochial school education, piano lessons, and gymnastics. Both parents intend to locate the child in a suburban middle to upper-middle class area and to provide the child with her own room. There are only two major differences involved in the proposed environments. In Irvine, the child would have the benefits of an extended family as both sets of grandparents and other collaterals are located there. In emergency situations it is expected that extended family members will aid in babysitting duties, whereas in Baton Rouge, a next door neighbor, who is a recent acquaintance, and the wife of a co-worker would fulfill those emergency duties. In Irvine, the child would additionally have the security of a live-in full-time babysitter, whereas in Baton Rouge, the court can only rely on appellant’s representations that he can leave his full-time job as early as 2:30 p.m. on a daily basis in order to prevent the child from being alone or with recent acquaintances from the end of the school day until 5:00 p.m.

The second difference between the two environments is psychologically based. As the child is approaching puberty, both experts testified that it would be more beneficial to the child to be with a same-sex parent during the difficult puberty transitional years.

Like the court in Plemer, we find that the best interests of the child are best served by maintaining school year custody in the current custodial parent. We find no error in the trial court’s ruling on this issue.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

BARRY, J., joins majority and would modify.

BARRY, Judge,

joining majority and would modify.

The majority cites Plemer v. Plemer, 436 So.2d 1348 (4th Cir.1983), but falls short of following its guidelines.

I find that “... allocation of the entire Christmas vacation to one parent is unrealistic ...” (at p. 1350). It is not fair for either parent to be totally deprived of Christmas and Easter holidays for the duration of the child’s minority. I would grant Mr. Krotoski custody for Christmas vacation in even-numbered years and for Easter vacation in odd-numbered years. Mrs. Krotoski should have custody for Christmas vacation in odd-numbered years and for Easter vacation in even-numbered years.

As to the child’s medical needs, Plemer said:

“We certainly agree that all medical information should be available to both parents and all major medical decisions shared.
... Also, because the majority of Michele’s custody has been and will be with her mother, it should be her ultimate decision if the parents disagree as to major medical treatment.” (At p. 1351).

The trial court’s judgment provided as follows:

“MEDICAL CARE AND TREATMENT—
Both parents are to be kept fully informed as to the health, treatment and medical status, records, etc., of the child. Any planned treatment, selective surgery, etc., is to be planned in advance with both parents participating in the process. Routine medical care and treatment, and any emergency treatment needed may be furnished and obtained by the custodial parent at the time the need arises. The primary authority insofar as selection of medical doctors, hospitals, etc., shall vest in the father.”

The majority of the child’s custody will be with Mrs. Krotoski. It is unrealistic to have the absentee parent, Mr. Krotoski, with primary medical authority. I would assign primary medical decisions to Mrs. Krotoski.

I would modify accordingly.