text:
    STATE of Louisiana, Plaintiff-Appellee, v. Dannie Keith JOHNSON, Defendant-Appellant.
    No. CR83-44.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Janice G. Clark, Baton Rouge, for defendant-appellant.
    Dracos D. Burke, Asst. Dist. Atty., New Iberia, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   YELVERTON, Judge.

Defendant, Dannie Keith Johnson, was convicted of first degree murder in violation of LSA-R.S. 14:30. Following a sentencing hearing, the jury recommended a sentence of life imprisonment without benefit of probation, parole or suspension of sentence. Defendant appeals the conviction and has perfected twelve assignments of error.

FACTS

On Friday, February 5, 1982, the defendant, Dannie Keith Johnson, went to Fre-min’s Food & Furniture Store in New Iberia, Louisiana. While shopping there, he was suspected of shoplifting by David and Ross Fremin. As defendant prepared to exit the store he was detained by the Fre-mins. He voluntarily went with the Fre-mins to a storeroom in the back. In the storeroom defendant pulled a .32 caliber H & R revolver and fired a shot at David Fremin, striking him in the arm.

Defendant then ran out of the storeroom and down the produce aisle of the grocery section of the store toward the front door. A store employee, William Landry, was restocking a Coke machine in the aisle. Defendant shot at Landry, striking him in the arm. Another employee, Kevin Broussard, was also working in the aisle. Defendant fired a third time, killing Broussard.

As defendant fled the store another employee followed him in an automobile, but abandoned the chase after defendant fired a fourth shot that shattered the pursuer’s windshield.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

These two assignments have to do with the trial court’s overruling of challenges for cause with respect to two prospective jurors. One prospective juror was a former deputy sheriff in another parish and the other was a businessman who knew the store owners and one of the victims and who himself had been a victim of crimes.

Both these jurors were questioned by defendant on voir dire about the causes which he suspected might make them prejudiced. Both responded that they would not be prejudiced and that they could be fair and impartial. The trial court joined in the questioning and was satisfied as to the impartiality of the jurors.

The trial court has wide discretion in the evaluation of the attributes required to qualify a prospective juror. State v. Webb, 364 So.2d 984 (La.1978). We find no abuse of that discretion.

These assignments are without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 11

An objection was made to the use by the State of a sketch of the scene of the crime. The basis for the objection was that the sketch was not drawn to scale.

A diagram offered in evidence for the purpose of assisting the jury in its understanding of the testimony need not be exact as to scale and distances to be admissible. Any inaccuracies go to the weight to be given the evidence. State v. Andrews, 369 So.2d 1049 (La.1979); State v. Toomer, 395 So.2d 1320 (La.1981).

A motion to inspect the scene of the crime was denied by the trial judge and is presented to us for review as assignment of error no. 11. Whether the jury is allowed to view the scene of the crime is a matter within the sound discretion of the trial court. State v. Gallon, 338 So.2d 920 (La.1976). There has been no showing in the instant case of any compelling reason supporting this request that would make its denial an abuse of discretion.

Defendant additionally argues that a view of the scene itself was the best evidence as opposed to the inaccurate sketch, relying on LSA-R.S. 15:436. The “best evidence” rule must be applied sensibly and with reason. State v. Fallon, 290 So.2d 273 (La.1974). Absent a showing of prejudice, a conviction will not be reversed on the ground that the best evidence was not produced. State v. Bennett, 341 So.2d 847 (La.1976).

The defendant has not shown how the denial of the motion to allow the jury to view the scene was prejudicial. The jury was given a sufficient understanding of the scene from witness descriptions and the diagram to intelligently follow the testimony.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 4

A blown up photograph was shown the jury depicting the aisle where the victim was slain. The body had been removed before the photograph was taken but there was a considerable amount of blood on the floor. This assignment addresses itself to the admission of this photograph before the jury, the contention being that its inflammatory effect outweighed its probative value.

The test for admissibility of allegedly gruesome photographs is whether their probative value outweighs any prejudicial effect. State v. Boyer, 406 So.2d 143 (La.1981). A photograph has probative value if it illustrates any fact, sheds any light upon an issue in the case or is relevant to describe the person, thing or place depicted. Id.

This photograph could not be described as particularly gruesome. True, it showed blood on the floor, but the body had been removed before the picture was taken. Furthermore, the photograph was useful in depicting the scene of the crime and to acquaint the jury with the appearance of the aisle and fix the spot where the victim died. The probative value of the photographs outweighed whatever prejudice may have resulted from the mere presence of blood.

' We also find no merit to the contention that these photographs were not adequately identified.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial court erred when it sustained the State’s objection to questions by his counsel during cross-examination which related to the credibility of the testimony of one of the State’s previously called witnesses. David Fremin, one of the store owner’s sons and a witness for the State, under cross-examination denied ever pushing the defendant. He was not asked whether he had ever told anyone he had pushed the defendant. During the cross-examination of Captain Melvin Judice of the New Iberia Police Department, the defense sought to elicit testimony from the captain of admissions by David Fremin that he had in fact pushed the defendant. The State objected to this testimony.

On appeal, the defendant for the first time contends that the testimony should have been admitted under LSA-R.S. 15:492 to show bias, interest or corruption. At trial, the basis of the defense objection to the court’s ruling was that the testimony would show prior contradictory statements by one of the Premins for impeachment purposes.

A new basis for objection cannot be raised for the first time on appeal. LSA-C. Cr.P. art. 841. State v. Fowlkes, 352 So.2d 208 (La.1977).

We find that the trial court properly refused to permit the testimony. The testimony sought from Captain Judice was hearsay, and the only exception which would have made it admissible was LSA-R.S. 15:493. This article reads:

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

In the instant case, a proper foundation was not laid to allow the prior statement into evidence. Defense questioning of David and Ross Premin failed to apprise them of the possible prior inconsistent statement. Our Supreme Court has stated that the requirement for a proper foundation is to be applied strictly. State v. Heard, 408 So.2d 1247 (La.1982); State v. LaFleur, 398 So.2d 1074 (La.1981). The rationale for a strict construction is to obviate surprise, to let the witness either deny or explain the inconsistency. The witness can do neither unless he is told exactly which statement he is dealing with.

This assignment has no merit.

ASSIGNMENT OP ERROR NO. 6

Defendant urges the trial court erred when it overruled his objection based on relevancy to questions by the State which revealed that the serial number on the alleged murder weapon was obliterated.

LSA-R.S. 15:441 provides:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

Defendant contends that the fact that the serial number on the gun was obliterated did not tend to show the commission of the offense and that its only value was to prejudice the jury by associating him with the type of weapon used by “criminals.” However, defense counsel allowed the fact that the serial number was obliterated to be mentioned previous to the objection. The officer who found the gun testified it did not have a visible serial number. This fact was useful as a specific identifying feature of the weapon.

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), the court held, “To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case.” As previously mentioned, the officer who retrieved the weapon used the obliterated serial number as a specific identifying feature of the weapon. According to Dotson, supra, the trial judge was correct in allowing the obliteration of the serial number of the weapon to be used as an identifying feature of the weapon.

The defendant, more particularly, urges that the expert firearms identification witness should not have been allowed to refer to the obliterated serial number in his testimony. Again, the obliterated serial number is a specific identification characteristic of the weapon. The relevancy must be determined by the purpose for which counsel offers it, according to LSA-R.S. 15:442. In State v. Mixon, 258 La. 835, 248 So.2d 307 (1971), the court noted, “When a weapon is used in the commission of a crime, that weapon and the method of securing the weapon to be used in evidence are material.” In addition, a determination of relevancy lies within the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. State v. Winston, 343 So.2d 171 (La.1977); State v. Gallow, 338 So.2d 920 (La.1976). The absence of a serial number, or an obliterated serial number, was an identifying characteristic of the weapon used in the crime. The trial judge did not abuse his discretion by permitting this testimony. This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

Defendant urges the trial court erred when it sustained the State’s objection to testimony regarding statements made by the defendant within a short time after the alleged offense. At the trial, defense counsel sought to elicit information from the defendant’s mother, Mrs. Simon, as to what she was told by defendant shortly after the alleged offense. The defendant argues that the testimony was admissible as part of the res gestae.

The transcript reflects that when the prosecuting attorney objected to the questioning of the mother, the trial judge sustained the objection. The record further reflects that defense counsel did not object to the trial court’s ruling. LSA-C.Cr.P. art. 841 provides in part:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

The Louisiana Supreme Court was faced with a similar situation in State v. Klein, 351 So.2d 1158 (La.1977). In Klein, the defendant had been charged with armed robbery. The defendant’s mother was called as a witness for the defendant. She testified that the victim came to her house about 4:51 on the afternoon of the alleged robbery, and, when she sought to testify to what he said to her on that occasion, the State’s attorney objected that the testimony would be hearsay. No objection was made to the ruling and no error was assigned at that time. The defense attorney in Klein, supra, argued in brief that the ruling denied the defendant the right to present testimony which was part of the res gestae. The Louisiana Supreme Court held that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. The party aggrieved should, at the time the ruling is made, make known to the court his objections and the grounds therefor. LSA-C. Cr.P. art. 841.

The ruling in Klein is dispositive of the present assignment of error; consequently, the assignment lacks merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial court erred in refusing to allow testimony regarding the previous handling by the store owner of shoplifters, where said testimony was sought to impeach the credibility of certain State witnesses. Defendant sought to have a witness testify as to the manner in which shoplifters had been handled by the Fre-mins on prior occasions. Defense counsel argues that these statements bore on the credibility of the State’s witnesses and on the defendant’s claim he was physically abused by the witnesses.

A similar issue was addressed by the Louisiana Supreme Court in State v. Stevenson, 390 So.2d 1292 (La.1980). In that case, at a hearing on a motion to suppress a confession, the defendant wanted to call witnesses to testify as to past acts of physical abuse by two police officers. In upholding a ruling that the testimony was not relevant, the court declared:

The trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, 355 So.2d 1305 (La.1978). Clearly, the evidence sought to be introduced by defendant could not be said to be relevant to the material issue at this hearing, that is, whether this defendant was physically abused by Chief Andrus and Deputy Boyd on the date in question. Defendant admitted that none of the witnesses had any knowledge of the incidents defendant complained of. We find no abuse of discretion by the trial judge in finding the testimony sought to be adduced at the hearing was irrelevant to the issue before the court and thus inadmissible.
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. However, it is not competent to impeach a witness as to collateral facts or irrelevant matter. La.R.S. 15:494; State v. Bennett, 357 So.2d 1136 (La.1978). When the general credibility of a witness is attacked, the inquiry must be limited to general reputation and cannot go into particular acts, vices or courses of conduct, La.R.S. 15:490, 491, State v. Marshall, 359 So.2d 78 (La.1978), State v. Frentz, 354 So.2d 1007 (La.1978), or the witness’ credibility may be attacked only insofar as his credibility in the case on trial is concerned, La.R.S. 15:490. While evidence of bias in the special case on trial may be admissible, La.R.S. 15:492, a witness’ bias against the opposing party must be direct or personal rather than indirect or general in nature. State v. Lewis, 328 So.2d 75 (La.), cert. denied, 429 U.S. 833, 97 S.Ct. 98, 50 L.Ed.2d 98 (1976). Even jurisdictions which permit character-impeachment by proof of prior acts of misconduct limit that proof to what can be brought out on cross-examination and would not allow the calling of other witnesses to prove the discrediting acts. McCormick, Evidence (Cleary ed. 1972), § 42; 3A Wigmore, Evidence (Chadbourn rev. 1970), § 979. Moreover, the type of prior misconduct which is admissible for the purpose of impeaching the credibility of a witness has been expressly limited by the legislature to evidence of conviction of crime. La.R.S. 15:495.

For the same reasons, we find that the trial judge did not abuse his discretion in ruling that this testimony was inadmissible. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 10

Defendant wished to call two witnesses, one to establish that Ross Fremin used “force, mace and ... physical violence” on a shoplifter previously, and the other to establish that David Fremin threatened her with a billy club. This testimony' would have presumably established the procedure employed by the Fremin sons for handling suspected shoplifters and would have served as corroboration of defendant’s testimony that he was physically abused in the storeroom. This assignment is based on the refusal of the trial court to allow this testimony.

We have partially answered this assignment in our discussion of assignment of error no. 9. Primarily, defendant relies on LSA-R.S. 15:482, which provides:

§ 482. Restriction on use of evidence of threats or dangerous character of party injured
In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.

Ross Fremin was not injured in the rampage; evidence of his dangerous character was not admissible under the article. David Fremin was shot in the arm. Assuming that he was a victim under the article; assuming, further, that a proper foundation was laid, we nevertheless find that the trial court was correct in excluding specific incidents to prove the dangerous character of David Fremin or threats against the accused. Assuming an overt act was shown, evidence of the victim’s dangerous character or of his threats against the accused is admissible in support of a plea of self-defense for two distinct purposes: (1) to show defendant’s reasonable apprehension of danger which would justify his conduct; and (2) to help determine who was the aggressor in the conflict. State v. Lee, 331 So.2d 455 (La.1976).

In order for evidence to be admissible to show defendant’s reasonable apprehension of danger, it must be shown that defendant knew of the victim’s prior acts of violence or reputation for violence at the time of the incident. State v. Gomez, 365 So.2d 1313 (La.1978); State v. Bernard, 358 So.2d 1268 (La.1978); State v. Boss, 353 So.2d 241 (La.1977). On the other hand, if the evidence is to be introduced to help determine who was the aggressor in the conflict, evidence of general reputation, not evidence of specific acts or personal opinion, is admissible. State v. Gomez, supra; State v. Bernard, supra.

In the present case, there was no evidence to indicate that defendant knew of the victim’s prior acts of violence. Consequently, the only other means for which the evidence of dangerous character was admissible was to determine the aggressor. According to Gomez, only general reputation is admissible, not evidence of specific acts. Therefore, the trial judge correctly noted that only evidence of general reputation was admissible, not specific instances. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends the trial court erred when it failed to grant his motion for a new trial. The new trial argument is based on the “ends of justice” provision of LSA-C. Cr.P. art. 851. Defendant also avers that the State did not carry its burden of proving beyond a reasonable doubt all the elements of the crime charged, more particularly the element of specific intent. Finally, grouped in this assignment of error is the contention that defendant was deprived of his constitutional right to a fair trial as guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 16 of the Louisiana Constitution of 1974, because of the rulings made by the trial court on objections during the trial.

The jurisprudence has accorded a great deal of weight to the trial judge’s decision to grant or deny the motion for a new trial, and his discretion will not be disturbed in the absence of a clear abuse. State v. Randolph, 275 So.2d 174 (La.1978); State v. Credeur, 328 So.2d 59 (La.1976); State v. Linkletter, 345 So.2d 452 (La.1977).

Defense counsel, in brief, does not specify any particular basis for the contention that the “ends of justice” would be best served by the granting of a new trial. It would appear that the previously set forth assignments of error by defendant are the basis for this assignment. The aforementioned assignments of error lacked merit, hence they do not serve as the basis for the grant of a new trial. The assignment of error lacks merit in this regard.

The contention that the State did not carry its burden is not well founded. According to the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could well have concluded beyond a reasonable doubt that the defendant was guilty as charged. There was ample evidence presented by the State to the jury from which they could conclude beyond a reasonable doubt that the defendant had the specific intent to kill or inflict great bodily injury upon more than one person. Therefore, this argument of defendant lacks merit.

The argument that the defendant was deprived of his constitutional rights is merely a reiteration of prior assignments.

For the above reasons, the conviction is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

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


source: Caselaw Access Project

author: FORET, Judge. DOMENGEAUX, Judge,

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Clyde Marvin BEASLEY, Appellant.
    No. CR83-90.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Jerry B. Daye, Ferriday, for appellant.
    John Sturgeon, Dist. Atty., Vidalia, for appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   FORET, Judge.

Clyde M. Beasley (defendant) was indicted by the Concordia Parish Grand Jury for the second degree murder of his wife, Glenda Beasley, in violation of LSA-R.S. 14:30.-1. Defendant entered a plea of not guilty to the charge. Subsequently, he was tried by a jury and found guilty as charged. The trial court then sentenced him to imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for a period of forty years. Defendant’s oral motion for an appeal to this Court was granted.

On March 26, 1983, while this appeal was pending, defendant died. Thus, the prosecution against him is abated. State v. Hamilton, 370 So.2d 874 (La.1979); State v. Ferina, 351 So.2d 1200 (La.1977); State v. Morris, 328 So.2d 65 (La.1976). Abatement ab initio of criminal proceedings has the effect of wiping the slate clean through indictment and conviction, and has as its purpose the consideration of the interest of the surviving family in preserving, unstained, the memory of the deceased defendant or his reputation. State v. McClow, 395 So.2d 757 (La.1981); State v. Morris, supra.

DECREE

Accordingly, this appeal is dismissed, the judgment of conviction is vacated, and the case is remanded to the trial court with instructions to dismiss the indictment against defendant.

APPEAL DISMISSED; MATTER REMANDED WITH INSTRUCTIONS.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

I agree herein because we have no choice but to follow the mandate of the Louisiana Supreme Court set out in the three cases cited in the majority opinion, and particularly the Morris case which elucidates on the status of a convicted defendant’s appeal when that defendant has died in the interim between the appeal and its hearing. I respectfully suggest, however, that the Morris case, which does recognize two jurisprudential lines of thought on the subject, runs afoul of the United States Supreme Court case of Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531, 18 Cr.L.R. 4138 (1976), which overruled its previous Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971) case (cited in Morris). I feel that under Dove we would have to dismiss the appeal herein as being moot, but not order the sentence vacated and the indictment dismissed.


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Alvin W. GINTZ, Appellant.
    No. CR83-102.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Jerry B. Daye, Ferriday, Louis Vogt, Jonesville, for appellant.
    John F. Johnson, Asst. Dist. Atty., Harri-sonburg, for appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   FORET, Judge.

Alvin Wayne Gintz (defendant) was indicted for the second degree murder of James Doyle, in violation of LSA — R.S. 14:30.1. He entered a plea of not guilty and not guilty by reason of insanity. Subsequently, defendant was tried by a jury which found him guilty as charged. Pursuant to the penal provision of LSA-R.S. 14:30.1, the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant appeals from his conviction.

ASSIGNMENTS OF ERROR
1. The trial court violated defendant’s right to a fair trial by denying his motion for a continuance, which was necessary for him to adequately prepare his defense.
2. The trial court violated defendant’s right to a fair and impartial jury by refusing to accept defendant’s challenge for cause of a certain juror on-the ground that she was biased against him.
3 & 6. The trial court erred in denying defendant’s motions for a mistrial made when certain witnesses, in their testimony, alluded to other crimes alleged to have been committed by defendant.
4 & 5. The trial court erred in refusing to give certain special jury instructions as requested by defendant.

FACTS

The evidence indicates that defendant accompanied his cousin, Calvin M. Gintz, Jr., and Doyle on a deer hunting trip on January 1, 1982. At approximately 3:00 A.M., the hunting party left Pineville for the J.W. Ford Camp located near Aimwell, in Cata-houla Parish. Upon arriving at the camp, they were met by Ford and his eight-year-old nephew. Everyone then proceeded into the woods surrounding the camp to hunt. Later that morning, Ford and his nephew returned to the camp and found defendant there. A short while later, Calvin and Doyle appeared at the camp.

Around noon, Ford and his nephew left for home. Doyle began cleaning the camp, but insisted that Calvin return to the woods to attempt to kill a deer that had been spotted in the area earlier that week and Calvin left to do so. He remained in the woods for a few hours and then returned to the camp. When he got within thirty feet of it, he saw Doyle lying on his back in the doorway. It appeared that he had either been stabbed or shot. Defendant was nowhere to be found.

After discovering Doyle’s body, Calvin attempted to make his way through the woods to get help, and eventually stopped a truck that was being driven through the woods. The driver of that truck alerted other hunters in the area as to what had happened, and then brought Calvin to Ford’s home. Meanwhile, someone else notified the Catahoula Parish Sheriff’s Department that a person had been hurt or shot in the area.

Paul Blunschi, a criminal investigator for the Catahoula Parish Sheriff’s Department, and a deputy, were the first persons to arrive at the camp and were met there by defendant. Blunschi told defendant that there was a report that there had been some trouble in the area. However, defendant stated that there was, .. no, no trouble up here”.

Blunschi and the deputy then noticed a trail on the ground indicating that something had been dragged over it. The deputy followed the trail and came running back, telling Blunschi to handcuff defendant as he had found Doyle’s body under a pile of leaves. Blunschi placed defendant under arrest and read him his rights. Under questioning, defendant admitted that he had stabbed Doyle. A knife found on defendant was later determined to be the murder weapon.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court committed reversible error in denying a motion for a 'continuance filed by him. The motion was based on two grounds. First, defendant alleged that he was unable to meet with counsel for several weeks prior to trial because he was confined at the Feliciana Forensic Facility (F.F.F.). The trial court denied the motion on this ground, noting that defendant had been returned to Harrisonburg on October 12, 1982 (six days before trial began). The trial court further noted that defendant’s counsel had been appointed to represent him some months before he was sent to F.F.F., and that counsel had not been denied access to him while he was confined there .

The second ground on which defendant relied was that he had not received certain medical reports of tests that were performed on him. He argued that these reports contained information necessary for him to prepare his defense on his plea of insanity. Defense counsel testified that both he and the District Attorney’s office had attempted to obtain these reports, but were unable to do so. However, there had been no attempt made to interview the doctors personally at their offices, or to obtain the reports from them. Upon being informed by the Assistant District Attorney that the reports were available and that a deputy could be sent to pick them up, the trial court requested that this be done. It then denied defendant’s motion on this ground. The reports were furnished to defendant’s counsel on the second day of trial.

The granting or refusal of a motion for a continuance rests within the sound discretion of the trial court; its ruling will not be disturbed on appeal absent a clear abuse of discretion and a showing of specific prejudice caused by the denial. State v. Jordan, 420 So.2d 420 (La.1982); State v. Simpson, 403 So.2d 1214 (La.1981); State v. Haarala, 398 So.2d 1093 (La.1981). See also LSA-C.Cr.P. Article 712.

The record supports the trial court’s conclusion that defendant had ample time to meet with his appointed counsel prior to trial. Thus, there was no clear abuse of discretion by the trial court in denying defendant’s motion for a continuance based on this ground.

As for the second ground set forth by defendant in his motion, the record indicates that the medical tests were performed on defendant upon the recommendation of Dr. Edward W. Camp, III. Dr. Camp’s recommendation was contained in a report he submitted to the trial court as a member of the Sanity Commission appointed to examine defendant. Dr. Camp declined to make a final diagnosis regarding any mental illness defendant might be suffering from until these tests were performed. However, at trial, Dr. Camp opined that defendant knew the difference between right and wrong at the time he committed the offense with which he was charged.

A review of the record makes it clear that Dr. Camp wanted the tests performed so that he could accurately diagnose defendant’s mental illness. These tests were of no consequence with respect to his opinion regarding defendant’s sanity. Dr. Camp was willing to give his opinion on this issue without reviewing the results of the tests.

We find no clear abuse of discretion by the trial court in denying defendant’s motion for a continuance based on this ground.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred in denying his challenge for cause of Mrs. Lorraine Weeks, a member of the jury that convicted him. Defendant argues that Mrs. Weeks was a biased and unfair juror, thus violating his right to a fair and impartial jury. Defendant’s argument is based on the following three factors:

1. Mrs. Weeks had discussed the case with some of the witnesses that would testify at his trial;
2. Mrs. Weeks had formed an opinion regarding his guilt or innocence; and
3. Mrs. Weeks was acquainted with the assistant district attorney that would prosecute him.
LSA-C.Cr.P. Article 797 provides:
“Art. 797. Challenge for cause
The state or the defendant may challenge a juror for cause on the ground that:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.” (Emphasis ours.)'

A trial court is vested with broad discretion in ruling on a challenge for cause and that ruling will not be disturbed on appeal absent a showing of an abuse of that discretion. State v. Sugar, 408 So.2d 1329 (La.1982); State v. Bates, 397 So.2d 1331 (La.1981); State v. Lewis, 391 So.2d 1156 (La.1980); State v. Drew, 360 So.2d 500 (La.1978). A review of the entire voir dire is essential to determine if the trial court’s discretion has been arbitrary or unreasonable and resulted in prejudice to the accused. State v. Bates, supra; State v. McIntyre, 381 So.2d 408 (La.1980); State v. Dickinson, 370 So.2d 557 (La.1979).

The entire transcript of the voir dire examination of Mrs. Weeks is contained in the record before us.

In State v. Hodgeson, 305 So.2d 421 (La.1974), defendant challenged for cause a prospective juror on the basis that he had “reached a strong conclusion” from information he had received, and that he had discussed the case with the Marshal of Sor-rento (a longtime friend and co-worker). However, in response to questions throughout voir dire, the prospective juror stated that he could accept and apply the presumption of defendant’s innocence and, laying aside his opinion, would consider only the testimony given at trial in determining the question of defendant’s guilt or innocence.

After noting the above, Hodgeson stated, at page 424, that:

“In reviewing the entire transcript of voir dire, we do not find any abuse in the trial court’s discretion in its determination that the prospective juror was capable of putting aside his own opinion and rendering an impartial decision based upon the evidence adduced at trial. State v. Richmond, 284 So.2d 317 (La.1973) and cases cited therein.”

Similarly, after reviewing the entire transcript of the voir dire examination of Mrs. Weeks, we find no abuse of discretion by the trial court in making its determination that she was capable of putting aside her own opinion and rendering an impartial decision based on the evidence adduced at trial. Mrs. Weeks was repeatedly questioned as to whether she could do this and she stated that she could each time .

Defendant’s final argument is that his challenge for cause of Mrs. Weeks should have been sustained because she was acquainted with the assistant district attorney who was to prosecute him. A similar argument was made in State v. Winn, 412 So.2d 1337 (La.1982).

In Winn, the prospective juror objected to by the defendant had a recent and lengthy employment with the Caddo Parish Clerk of Court’s Office. Her job duties were related to the criminal justice system in that she prepared all of the criminal appeals from Caddo Parish for appellate review. By virtue of her employment, she knew the assistant district attorney who was to prosecute defendant and also stated that she had handled many appeals in cases that were prosecuted by him.

Winn found no abuse of discretion by the trial court in denying defendant’s challenge for cause of this prospective juror. Winn noted that she had testified on voir dire that her acquaintance with the assistant district attorney on a professional level would in no way affect her deliberation on the facts in the case.

In the case before us, the following exchange took place between Mrs. Weeks and the assistant district attorney:

“Mr. Johnson: The fact is you are from Harrisonburg, been here most of your life and so am I and even though we don’t visit in each other’s homes now, we used to a few years back and .. I know my grandmother did, but is that going to cause you any problems?
A. No sir.”

There is no merit to this assignment of error.

ASSIGNMENTS OF ERROR NUMBERS 3 & 6

Defendant contends that the trial court erred in denying his motions for a mistrial made when certain witnesses allegedly referred to inadmissible “other crimes evidence” in their testimony. Defendant’s first motion for a mistrial was made after Deputy Pete Tolar, a criminal investigator for the Catahoula Parish Sheriff’s Department, testified. Deputy Tolar had been testifying as to what the investigation had consisted of on the day after the offense occurred. He was then questioned as follows:

“Q. Okay. What did your investigation consist of after that day, do you...
A. Mine?
Q. Yeah.
A. Mostly taking statements. I went to Alexandria, took a statement. Went...
Q. Can we .. can we sum it up as took statements from witnesses who were there and knew pieces about what occurred?
A. And relatives ... you know .. stuff like that.
Q. Okay.
A. I went to Sulphur and picked up copies of arrest reports.
Mr. Daye: Your Honor, I am going to make an objection to that.
Judge: Alright. The objection is sustained at this time, Mr. Johnson .. without getting further into your foundation as to what you are trying to get at, but...
Mr. Johnson: I don’t have any further questions.
Judge: You just ... you have no further questions?
Mr. Johnson: No further questions.
Judge: Alright. Mr. Daye.”

After completing his cross-examination of Deputy Tolar, defendant requested that the jury be removed from the courtroom. He then moved for a mistrial on the ground that Deputy Tolar’s testimony, to the effect that he had gone to Sulphur to pick up copies of arrest reports, was a reference to inadmissible other crimes evidence.

The trial court denied defendant’s motion for a mistrial, stating a number of reasons for doing so. We agree with the trial court’s ruling on the basis that the testimony objected to by defendant fails to constitute inadmissible other crimes evidence. Nowhere in his testimony did Deputy Tolar state that he was going to Sulphur to pick up defendant’s arrest reports, and we do not believe that this can be readily inferred from his testimony.

Defendant’s second motion for a mistrial was made while Terry Stevens was testifying. Stevens was incarcerated in the Cata-houla Parish Jail with defendant. He was asked by the prosecution if defendant had ever offered him an explanation about the offense with which he was charged. Stevens replied that he did, stating that:

“Well, he said it was ... that was his worst offense he had ever had and ... he said that him and the man ... ”.

Defendant immediately objected to this testimony and requested that the jury be removed once again from the courtroom. He then moved for a mistrial on the ground that Stevens’ testimony constituted a reference to inadmissible other crimes evidence. The trial court first noted that the prosecution was coming dangerously close to adducing that type of evidence. However, it denied defendant’s motion, stating that Stevens’ testimony contained no direct or indirect reference to “... another crime committed or alleged to have been committed by the Defendant as to which evidence is not admissible”.

We agree with the trial court’s ruling. The record indicates that defendant, in presenting his case, recalled Deputy Bluns-chi as a hostile witness. Defense counsel then began to question Deputy Blunschi about a statement made by defendant on January 2, 1982, which was recorded on tape. After answering these questions, Deputy Blunschi was requested by defense counsel to play the tape for the jury, but was unable to do so as the recording wasn’t loud enough for them to hear it.

He was then allowed to read a transcript of the recording into the record. The transcript reveals that Deputy Blunschi asked defendant the following question:

“Okay. You told me .. you told one of the trustees last night that this was the worst crime that you had ever committed. Is that right? Is that what you told one of the trustees last night? That this was the worst crime you had ever committed?”
Defendant answered:
“I did, but I didn’t mean it.”

Another statement made by defendant on January 5, 1982, was videotaped. Defense counsel also introduced this statement in evidence. While we do not have the actual videotape, there is a transcript of the statement in the record. In that transcript, the following exchange takes place:

“Q. Is this about the worse crime you’ve ever committed?
A. Yes sir, it was.
Q. This is the worse one you’ve ever committed isn’t it?
A. That’s right.”
(Deputy Blunschi is again questioning defendant.)

As can be seen, defendant himself introduced in evidence information identical to that given by Stevens in his testimony. Under these circumstances, it is our opinion that defendant waived his right to object to Stevens’ testimony. There is no merit to these assignments of error.

ASSIGNMENTS OF ERROR NUMBERS 4 & 5

Defendant neither briefed nor argued assignments of error numbers 4 and 5. Hence, we consider them to have been abandoned. State v. Perry, 420 So.2d 139 (La.1982); State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975). In any event, they are without merit.

A review of the instructions given by the trial court to the jury indicates that the substance of both of defendant’s requested special jury instructions was included therein.

DECREE

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

AFFIRMED.

      . The record reflects the fact that defense counsel was appointed to represent defendant through the Indigent Defender Board.

      . From a reading of Hodgeson, it is impossible to tell whether the Marshal of Sorrento was to testify at defendant’s trial. However, in State v. Hackett, 166 La. 261, 117 So. 141 (1928), the Louisiana Supreme Court upheld a trial court’s ruling denying defendant’s challenges for cause of three prospective jurors who had discussed the case with one of the prosecution’s witnesses (the victim of the robbery for which defendants were being tried). Hackett noted that two of the prospective jurors had formed no opinion regarding defendant’s guilt, and the third had stated that, if accepted as a juror, he could disregard what he had heard concerning the case and would try it upon the evidence to be adduced at trial.

      . As in Bates, we conclude that a challenge for cause is not warranted where a juror has volunteered an opinion seemingly prejudicial to the defendant but subsequently, upon further inquiry or instruction by the court, has demonstrated the ability and willingness to decide the case impartially according to the law and evidence.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Thomas (Tommy) C. NUNEZ, Defendant-Appellant.
    No. CR83-181.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Steven Chandler, Lafayette, for defendant-appellant.
    Louis G. Garrot, Asst. Dist. Atty., Abbe-ville, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

On September 10, 1982, the defendant, Thomas (Tommy) C. Nunez, was convicted, by unanimous verdict of a twelve person jury, of one count of armed robbery, a violation of LSA-R.S. 14:64. On September 24, 1982, the defendant was sentenced to twenty years imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. The defendant has appealed his conviction and sentence.

The defendant made no assignments of error, pursuant to LSA-C.Cr.P. Article 844. Therefore, the scope of appellate review in this case is limited to a review of the pleadings and proceedings, without inspection of the evidence, for errors patent. State v. Zeno, 322 So.2d 136 (La.1975). Accordingly, we have carefully examined the record in this case pursuant to the mandate of LSA-C.Cr.P. Article 920 and finding no errors patent on the face of the record, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Carlton WILLIS, Defendant-Appellant.
    No. CR83-103.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      William R. Collins, New Iberia, for defendant-appellant.
    Bernard E. Boudreaux, Jr., Dist. Atty., and Dracos D. Burke, Asst. Dist. Atty., New Iberia, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

The defendant, Carlton Willis, was convicted of second degree murder in the brutal beating death of Charles Brown. Defendant appeals.

No assignments of error were perfected as required by La.C.Cr.P. Art. 844. Therefore, this court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings and proceedings. C.Cr.P. Art. 920; State v. Jackson, 332 So.2d 211 (La.1976); State v. Gerald, 325 So.2d 574 (La.1976). A review of the record reflects no error .

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . LSA-C.Cr.P. article 844 provides:
      “The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date. A copy of the assignment of errors shall be furnished to the trial judge by the appealing party on the date such errors are filed.”
      “The trial judge may submit such per curiam comments as he desires.”

      . LSA-C.Cr.P. article 920 provides:
      “The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and;
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

      . In brief, the defendant alleges two errors: (1) that the trial court erred in admitting into evidence a photograph of the victim taken at the death scene; and (2) the trial judge erred in admitting into evidence certain blood found on a automobile jack handle and glass recovered at the scene of the crime.
      With respect to the first alleged error, the picture depicts the corpus delecti. It does not show the wounds to the victim’s head, but, merely shows the corpse as found in a cane field. The photograph sheds light on a relevant fact and its probative value clearly exceeds any prejudice. State v. Lindsey, 404 So.2d 466 (La.1981). Defense counsel’s offer to stipulate as to the matter sought to be proved does not preclude the State from employing such probative evidence. State v. Harvey, 358 So.2d 1224 (La.1978).
      The second alleged error is equally without merit. The coroner took four vials of blood from the victim’s body which were transferred to and tested by a forensic chemist who typed the blood and found it compatible with blood stains found on the murder weapon. Our review of the record indicates the evidence was properly admitted.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Wilson K. SAVOY, Jr., Defendant-Appellant.
    No. CR83-107.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      William Tracy Barstow, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., Opel-ousas, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

The defendant, Wilson K. Savoy, Jr., pleaded nolo contendere to the charge of negligent homicide, a violation of LSA-R.S. 14:32. The trial court sentenced the defendant to five years at hard labor. The defendant has appealed the conviction and sentence.

The defendant filed no assignments of error pursuant to LSA-C.Cr.P. Art. 844. Therefore, the scope of appellate review in this case is limited to a review of the pleadings and proceedings, without inspection of the evidence, for errors patent. LSA-C. Cr.P. Art. 920; State v. Zeno, 322 So.2d 136 (La.1975). Accordingly, we have carefully examined the record in this case pursuant to the mandate of LSA-C.Cr.P. Art. 920, and finding no errors patent on the face of the record, we affirm the defendant’s conviction and the sentence imposed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Ronald Joseph “Ronnie” OURSO, Defendant-Appellant.
    No. CR83-114.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Nov. 28,1983.

      Mark A. Delphin, Delphin & Granger, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and Larry James Regan, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

The defendant was tried and found guilty of attempted distribution of a substance falsely represented to be a controlled dangerous substance (C.D.S.), a violation of LSA-R.S. 14:27 and R.S. 40:971.1. Ronald Joseph Ourso, hereinafter referred to as Ourso, was sentenced to two and one-half years at hard labor, to run consecutively with any other sentence he is now serving.

On May 8, 1982, the Calcasieu Parish Sheriffs Office participated in a proposed drug sale involving the defendant. Thomas Smith, an undercover narcotics agent, met with two narcotics deputies and their informant at a pre-arranged location. Agent Smith and the informant, one Douglas Mosley, were thoroughly searched by the two deputies. Officer Smith’s car was also searched. The purpose of the search was to make sure any contraband, later discovered, could only come from the targeted seller, and thus quash any type of “set-up” by the undercover officers.

The informant was known to be acquainted with the suspect and the purpose of his presence was to introduce Officer Smith to the alleged drug dealer, Ourso. After the search, Officer Smith was given one hundred ($100.00) dollars in “buy” money. The other two deputies, Officers Becton and Folds, were to conduct a surveillance operation maintaining constant visual contact with Agent Smith, the informant Mosely, and the suspect, Ourso, throughout the transaction. All four parties proceeded to LaFleur’s Roller Rink. Officer Smith was in his car, accompanied by Mosley. Officers Becton and Folds were following in the surveillance van. With the surveillance van set up nearby, Smith and Mosley entered the roller rink. Mosley asked Ourso, who appeared to be employed there, to step outside for a moment. At approximately 8:40 p.m., Ourso exited the building and proceeded to his vehicle, where he opened the door, bent down, and removed three triangular-shaped packets from his sock. The defendant indicated that the white powdery substance within the packets was crystal. Officer Smith selected the fullest packet and paid sixty ($60.00) dollars of the issued “buy” money to Ourso. Agent Smith and the informant then left, returning to the previous location with deputies Becton and Folds immediately behind. Smith, his car, and Mosley were again searched, and the left over “buy” money was returned. Agent Smith then turned over the packet to Deputy Folds. Subsequently, a lab test was conducted on the substance contained within the triangular packet. The lab report indicated that the white powder was pro-pylhexedrine, not a controlled dangerous substance. The defendant was arrested and charged with violation of LSA-R.S. 40:971.*, distributing a substance falsely represented to be a controlled dangerous substance.

At the jury trial, evidence was adduced indicating that the term crystal is street terminology for methamphetamine, a controlled dangerous substance. The jury convicted the defendant of the lesser and included offense of attempted distribution of a substance falsely represented to be a controlled dangerous substance. The trial judge imposed a two and one-half (2½) year sentence, to run consecutively with any other sentence being served by the defendant. It is from this conviction and sentence that the defendant has, upon this appeal, perfected four (4) assignments of error.

(1) The trial court erred by accepting the testimony of Sgt. Larry Schell as an expert in the field of “street slang terminology.”
(2) The trial court erred in rejecting defendant’s motion for a new trial in that the verdict is contrary to the law and the evidence as the State failed to prove that defendant knowingly and intentionally represented that he was selling a controlled dangerous substance.
(3) The trial court erred by imposing the maximum sentence of 2½ years at hard labor which sentence is to run consecutively with any other sentence the defendant is presently serving in that said sentence is excessive, cruel and unusual.
(4) The trial court erred by failing to allow defendant credit for time served while awaiting sentence on the subject charge.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that the trial court erred in accepting Sgt. Larry Schell of the Louisiana State Police as an expert in undercover narcotics operations and as an expert in street terms or terminology involved in and/or relating to controlled dangerous substances.

It is noted that the defendant did not make a contemporaneous objection to the acceptance of Sgt. Schell as an expert witness, pursuant to C.Cr.P. Art. 841. This fact, in and of itself, is normally sufficient to preclude review of an assignment of error brought out for the first time on appeal. However, because of the uniqueness of the area of expertise, concerning street terminology, we feel that a brief examination of Sgt. Schell’s qualifications is in order.

The record reveals that Sgt. Larry Schell was the area supervisor for the Louisiana State Police, Narcotics Section. He has been actively involved in the narcotics section since February, 1976. He attended Federal Drug Enforcement Administration basic narcotics school in 1978. In 1980, he attended the advanced D.E.A. school. Other training included numerous seminars on smuggling, pharmacology and narcotics in general. Prior to becoming supervisor, Sgt. Schell was an undercover narcotics agent with over 150 actual buys to his credit, covering the gamut of all types of drugs sold illegally. Sgt. Schell testified that based upon his training and experience in the field he had become very familiar with street terms used for controlled dangerous substances.

The court, after hearing this testimony concerning Sgt. Schell’s experience and qualifications, on both direct and cross-examination, concluded that Sgt. Schell was qualified, based on his training and experience, as an expert in the fields for which he was tendered.

LSA-R.S. 15:466 provides:
“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert, his competency must have been established to the satisfaction of the court.”

The Courts have consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Michel, 422 So.2d 1115 (La.1982); State v. Sherer, 411 So.2d 1050 (La.1982); State v. Coleman, 406 So.2d 563 (La.1981); State v. White, 430 So.2d 174 (La.App. 2nd Cir.1983).

In the instant case, Sgt. Schell was thoroughly questioned as to his qualifications and experience by the State, defendant and the court. His testimony in no way prejudiced the defendant. The jury could either believe or disbelieve the testimony of Sgt. Schell and attach to it whatever significance they saw fit.

In light of the apparent training and experience of this expert witness in the field of narcotics, the trial judge did not abuse the discretion granted him. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendant asserts by this assignment that the trial court erred in rejecting defendant’s motion for a new trial, in that the verdict is contrary to the law and the evidence as the State failed to prove that defendant knowingly and intentionally represented that he was selling a controlled dangerous substance.

The defendant, Ourso, was charged with selling a substance that was falsely represented to be a controlled dangerous substance, a violation of LSA-R.S. 40:971.1, supra. A jury convicted the defendant of the lesser and included offense of attempted sale of a substance that was falsely represented to be a controlled dangerous substance. The defendant alleges the evidence was insufficient to prove this crime.

The Due Process Clause of the Fourteenth Amendment of the United States Constitution requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 560 (U.S. 1979); State v. Graham, 422 So.2d 123 (La.1982).

The evidence shows without contradiction that the defendant distributed a non-controlled dangerous substance to an undercover law enforcement officer. This fact, in and of itself is not a crime, but by falsely representing the non-C.D.S. to be a C.D.S., there was a violation of LSA-R.S. 40:971.1, supra. Therefore, the State must have proven that defendant knowingly and intentionally distributed a substance which was falsely represented to be a C.D.S. Evidence establishes that the defendant told the undercover agent he was selling “crystal” to him. The validity of the defendant’s conviction turns on the meaning of the term “crystal”.

Trooper Schell’s testimony, taken in its entirety, clearly indicated that in his experience as an undercover narcotics agent for the state police, any time a person expressed they were selling him “crystal”, it, in fact, was a C.D.S. known as methamphetamine in a crystalized form.

As was previously discussed, Sgt. Schell was accepted as an expert in narcotics operations and in the field of slang terminology used in the drug trade. His testimony went to the weight of the evidence in this matter. The jury could choose to give whatever weight to the testimony they felt applicable. It was clear to the jury that the intent conveyed by the defendant, with the use of the term “crystal”, was to indicate to a person buying such, that it was the C.D.S. methamphetamine. In this instance, it is of no consequence what the defendant actually sold, as long as it was a non-C.D.S. which was falsely represented to be a C.D.S.

In concluding that the defendant specifically intended to falsely represent a substance to be a C.D.S., the jury was apparently unpersuaded by the defendant’s theory that the term “crystal” could have been attributed to something other than a C.D.S.

We hold that the verdict of guilty of attempted distribution of a substance falsely represented to be a C.D.S. is clearly supported by the evidence. The jury, as a rational trier of fact, could certainly have found from this evidence that the defendant had a specific intent to distribute a substance which he falsely represented as a C.D.S., and that the State has proved the essential elements of the crime and its lesser but included offense beyond a reasonable doubt. State v. Parker, 425 So.2d 683 (La.1982). Assignment of error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant contends that the sentence imposed by the trial court is excessive, violating Article I, Section 20 of the Louisiana Constitution. The trial judge imposed a sentence of 2V2 years at hard labor, to run consecutively with any other sentence being served by the defendant.

The penalty for the crime of distribution of a substance falsely represented to be a controlled dangerous substance is imprisonment with or without hard labor for not more than five years and a fine of not more than $5,000.00. LSA-R.S. 40:971.1. Thus, the maximum sentence available for an attempt to commit the offense is 2½ years at hard labor and/or a fine of $2,500.00. LSA-R.S. 14:27.

The trial judge is afforded wide discretion in imposing sentences within statutory limits, and the sentence imposed should not be set aside absent a manifest abuse of discretion. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Fergus, 418 So.2d 594 (La.1982). However, a sentence which falls within the statutory limits may be constitutionally excessive when considered in light of the particular defendant and the circumstances of the particular crime. State v. Forshee, 395 So.2d 742 (La.1981); State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is excessive when the penalty is so grossly disproportionate to the severity of the crime that it shocks the court’s sense of justice, or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980).

The sentence imposed by the trial judge is the maximum sentence of incarceration available for the crime committed by defendant. Despite the seeming severity of the sentence, we find no abuse of the trial court’s wide discretion in imposing sentence. The record shows that the defendant has a previous conviction for possession of marijuana with intent to distribute. He was sentenced to a prison term of six years, and was on parole for that offense when he was charged and convicted of the present offense. As the trial judge noted in his reasons for imposing sentence, the defendant, despite incarceration for a previous similar offense, has shown an unwillingness to reform and lead a law-abiding life. The sentence of 2¾⅞ years at hard labor for this defendant is not so disproportionate as to shock our sense of justice. We find no abuse of the trial court’s wide discretion. Assignment number 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment, the defendant contends that the trial court erred in refusing to give the defendant credit toward service of his sentence for time spent in actual custody prior to sentencing. This assignment has merit.

Following the imposition of sentence, counsel for defendant asked that the record reflect that the defendant was entitled to credit for the time he served awaiting trial. The trial judge refused, stating that, as a result of this conviction, the defendant’s parole was automatically revoked as of the date of the commission of the instant offense, and that the time served awaiting trial was to be credited toward the sentence for which he was on parole.

LSA-C.Cr.P. Art. 880 provides:
“The court, when it imposes sentence, shall give a defendant credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence.”

When a person is convicted of a felony committed while on parole, parole is deemed revoked as of the date of the commission of the felony. LSA-R.S. 15:574.10. LSA-R.S. 15:574.9(E) provides the following with respect to the credit allowed a defendant for time served:

“E. When the parole of a parolee has been revoked by the board for the violation of the conditions of parole, the parolee shall be returned to the institution from which he was paroled and serve the remainder of his sentence as of the date of his release on parole, subject to consideration by the board of any commutation of the sentence, and any diminution of sentence earned for good behavior while in the institution. The parolee shall be given credit for time served prior to the revocation hearing whether such time is served in a local detention facility, state institution, or out-of-state institution, except that the parolee shall not receive credit for such time served prior to the revocation hearing where such hearing does not result in revocation, or the revocation is based on the subsequent conviction of a crime, in which case the parolee will receive credit for time served for the subsequent conviction pursuant to Code of Criminal Procedure Article 880.” (Emphasis supplied)

As is made clear by the foregoing statute, the time served by a parolee awaiting trial on a subsequent felony is credited toward the sentence ultimately imposed for the subsequent felony. Thus, the trial court was in error in refusing to grant the defendant credit for time served awaiting trial.

We observe that our reversal of the trial court judgment on this issue will apparently have no effect on the length of the sentence to be served by the defendant. Since the defendant was ordered to serve the sentence consecutively with the remainder of the sentence from which he was on parole, it makes no practical difference that the time served is credited to one sentence as opposed to the other. However, because the defendant’s assignment of error has merit, we remand the matter to the trial court for resentencing in compliance with the mandatory terms of LSA-C.Cr.P. Art. 880 and LSA-R.S. 15:574.9(E).

Accordingly, the defendant’s conviction is affirmed, and this matter is remanded for resentencing in accordance with the views expressed herein.

CONVICTION AFFIRMED AND REMANDED FOR RESENTENCING.

      . LSA-R.S. 40:971.1 provides:
      “A. It shall be unlawful for any person to produce, manufacture, distribute or dispense any substance which is falsely represented to be a controlled dangerous substance or which is falsely represented to be a counterfeit controlled dangerous substance.”
      “B. The provisions of this Section shall not apply to a law enforcement officer acting in the course and scope of his employment or to a medical practitioner, pharmacist, or other person authorized to dispense or administer controlled dangerous substances pursuant to Part X of Chapter 4 of Title 40 of the Revised Statutes of 1950.
      C. Any person who violates the provisions of this Section shall be imprisoned with or without hard labor for not more than five years, and in addition may be fined not more than five thousand dollars.”


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Steve R. STONE, Defendant-Appellant.
    No. CR83-117.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      David L. Wallace, Evans, Bradley, Wallace & O’Neal, DeRidder, for defendant-appellant.
    William C. Pegues, III, Dist. Atty., De-Ridder, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

Steven Ray Stone was arraigned on June 25, 1982, on felony charges of simple burglary, a violation of LSA-R.S. 14:62, and theft, a violation of LSA-R.S. 14:67. As part of a plea bargain Stone pleaded guilty to these charges. These charges arose from a May 19,1982, burglary of a private dwelling in DeRidder during which merchandise and cash amounting to $945.00 was stolen. Stone’s plea was given in exchange for the district attorney’s promise not to prosecute Stone on other criminal charges. Additionally, the district attorney recommended that the sentence imposed for each conviction run concurrently.

After a pre-sentence investigation and hearing thereon, the trial judge sentenced Stone to the maximum penalty allowed by law of twenty-two years at hard labor (maximum twelve year term for simple burglary and maximum ten year term for theft running consecutively).

Stone appeals this sentence alleging:
(1) The trial court erred in considering Stone’s involvement in other criminal activity; and
(2) The trial court erred by imposing an excessive sentence in violation of Article I § 20 of the 1974 Louisiana Constitution.

ASSIGNMENT OF ERROR

Stone’s counsel contends that the trial judge committed error in considering that Stone had been charged with several other counts of burglary and theft in the DeRidder area for which he was not convicted and, in fact, for which charges were never filed. Stone’s counsel additionally considers it error for the trial court to consider the fact that, in the pre-sentence investigation, Stone admitted he had committed approximately 1,000 burglaries.

The Louisiana Supreme Court considered this issue in State v. Washington, 414 So.2d 313 (La.1982) and in State v. Williams, 412 So.2d 1327 (La.1982). The Washington panel stated:

“[T]he sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Douglas, 389 So.2d 1263 (La.1980). Prior criminal activity is one of the factors under art. 894.1 to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Brown, 410 So.2d 1043 (La.1982).”

Particularly of interest is a footnote in State v. Williams, supra, in which the Supreme Court states:

“Both arrests and convictions may be considered in imposing sentence, as long as defendant, as here, is given notice of the derogatory information and is afforded a chance to speak in mitigation.”

In the instant case Stone was more than apprised of the information at issue since his admissions were the sources of this information.

Additionally, Stone’s counsel argues that sentence of twenty-two years at hard labor violates Article I § 20 of the 1974 Louisiana Constitution. The Constitution proscribes excessive punishment and states, in pertinent part:

“No law shall subject any person to euthanasia, to torture, or to cruel, excessive. or unusual punishment.” (Emphasis ours.)

In the case of State v. Campbell, 404 So.2d 1205 (La.1981), the court made the following observation:

“The imposition of a sentence, even though within statutory limits, may violate a defendant’s right, under the Louisiana Constitution, against excessive punishment. Therefore, excessiveness of sentence is an appropriate question for review on appeal. See State v. Sepulvado, 367 So.2d 762 (La.1979). In State v. Bonanno, 384 So.2d 355 (La.1980) we set forth the standard to be used in reviewing a sentence alleged to be excessive. Therein we commented:
‘As stated previously, to determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. State v. Goode, supra. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Beavers, 382 So.2d 943 (La.1980.)’
“Additionally, in State v. Sepulvado, supra, we concluded that the statutory criteria legislatively provided by La.C. Cr.P. Article 894.1 affords appropriate criteria by which to measure whether a sentence within the statutory limits is nevertheless excessive.... Under La.C. Cr.P. Article 894.1, the sentencing judge must state for the record those considerations taken into account in imposing sentence and the factual basis for such considerations. State v. Jackson, 360 So.2d 842 (La.1978). Simply stated, the record must reflect that the trial court adequately considered these criteria in imposing sentence.” (Footnote omitted.)

As stated above, the sentence was imposed after a presentence investigation and hearing. The record indicates that the sentencing judge had before him the pre-sen-tence report and several written statements made by Stone at the time of his arrest concerning Stone’s involvement in the crimes at issue and other crimes. The record further indicates that the sentencing judge concluded from these documents that Stone admitted committing seven particular burglaries in the DeRidder area. The judge also mentioned that the report showed that Stone had previously been convicted of burglary and aggravated battery in Illinois in 1975 and 1976, serving four years in prison for the latter offense. The judge also mentioned that Stone had been convicted of attempted automobile burglary and attempted burglary in Florida in 1980 and 1981. Stone served two months and one month, respectively, for these convictions.

At the hearing the judge also questioned Stone about a statement Stone made to the probation officer during the pre-sentence investigation in which Stone admitted he had committed over a thousand burglaries in his life. When the judge asked Stone if that was a truthful statement, Stone answered the affirmative:

The judge also stated that he took into consideration Stone’s young age, twenty-seven years, his unmarried status and lack of dependents. The judge also considered the fact that none of the homes into which Stone entered were occupied.

Considering the record we are convinced the trial judge exercised his discretion wisely in imposing a twenty-two year sentence on Stone. His reasons are as follow:

“[S]o, I have to determine what kind of a sentence to impose on you, and I have to say that you received a very substantial plea bargain from the District Attorney’s Office, in my opinion, considering the number of residential burglaries that you admitted over a period of time, where they were not impulse sort of things, where one night you might have gotten drunk or high on drugs and ran out and burglarized a house and took some things. That’s bad, but when you do it over a period of time, it shows a system and a design and intent that makes it all the worse. I think that you are a substantial risk to public safety, Mr. Stone. I believe that you need to be incarcerated for a substantial period of time to protect the public. For a lesser reason, I think that you need to be incarcerated in a custodial environment to hopefully deter you from criminal action in the future, when you ultimately get out of the pen, because I'm not in the position to send you to the pen for life. You’ll be out someday, and I would hope that my sentence would have gotten your attention to where you would want to resolve when you get out of prison that you would try to live according to the law. But the overriding consideration in putting you behind bars for the time that I’m going to put you behind bars, is to protect the members of the public in DeRidder, Louisiana and wherever else in this United States you have perpetrated approximately a thousand burglaries. For all of these reasons, the sentence of the Court in the Burglary charge is that you be committed to the Louisiana Department of Corrections and confined at hard labor for a period of twelve years, subject to such commutation as may be allowed by law and with credit for time in custody prior to the imposition of this sentence. The sentence of the Court in the Theft case is that you be committed to the Louisiana Department of Corrections and confined at hard labor for a period of ten years, subject to such commutation as may be allowed by law and with credit for time in custody prior to the imposition of this sentence. This sentence is to run consecutive to the sentence that I have imposed in the Burglary case. I had a recommendation that you be given concurrent sentences, Stone, but I do not believe that it is proper for the Court to so do in this case. Because of your past criminal conduct and record and the need to protect the public, I think that this is a case that justifies, indeed, even requires me to impose consecutive sentences instead of concurrent sentences. You are a danger to society, and hopefully during the next term of years when you’re behind prison walls of Louisiana, society can rest a little bit more comfortably. That’s the sentence of the Court. You’re remanded to the custody of the Sheriff.’’

We find no factors which would support the imposition of a lesser sentence. We hold that the sentence is not excessive under these circumstances.

For these reasons the conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Daniel Dewayne REMEDIES, Defendant-Appellant.
    No. CR83-119.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

Daniel Dwayne Remedies was charged on September 16, 1981, with two counts of simple burglary (LSA-R.S. 14:62.2) and one count of forcible rape (LSA-R.S. 14:42.1). The charges flow from incidents on or about April 10, 1981, when a residence in Noble and a residence in Zwolle were forcibly entered. The rape occurred during the burglary of the Zwolle residence.

Pursuant to á plea bargain Remedies pleaded guilty on September 20,1982, to the two counts of simple burglary. In return the district attorney agreed to not prosecute the forcible rape charge, to not prosecute Remedies as a multiple offender, and to recommend to the sentencing judge that sentences imposed for the simple burglary convictions run concurrently.

Following a presentence investigation a hearing was held on December 17, 1982. Therein the trial judge sentenced Remedies to nine years at hard labor on each conviction. The trial judge further ordered that the sentences run concurrently.

From this conviction and sentence Remedies appeals asserting:

(1) The trial court erred in imposing sentence without complying with LSA-C. Cr.P. art. 894.1;
(2) The trial court erred by imposing excessive sentences in violation of Article I Section 20 of the 1974 Constitution; and
(3) The trial court erred in considering statements made by Remedies in his pre-sentence investigation, a violation of Remedies’ Fifth Amendment right against self-incrimination.

ASSIGNMENT OF ERROR NUMBER ONE

Remedies argues that the trial court erred in failing to properly apply the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1.

In a recent per curiam opinion the Louisiana Supreme Court discussed the sentencing requirements imposed by LSA-C.Cr.P. art. 894.1. In State v. Knox, 425 So.2d 707, 708 (La.1982), the court stated:

“It is now settled that a trial judge’s sentencing reasons in compliance with La. C.Cr.P. Art. 894.1 provide an essential aid to this Court’s review of an excessiveness claim under La. Const. Art. I § 20. State v. Trahan, 412 So.2d 1294, 1297 (La.1982); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Cox, 369 So.2d 118 (La.1979). The record left of sentencing should therefore indicate that the trial court considered not only the seriousness of the offense and the past record of the defendant, but also ‘defendant’s personal history (age, mental status, dependents, family ties, work record, mental, emotional and physical health) and his ... potential for rehabilitation.’ State v. Molinet, 393 So.2d 721, 722 (La.1981); see also, State v. Jones, 398 So.2d 1049 (La.1981); State v. Jackson, 360 So.2d 842 (La.1978). In addition, Art. 894.1(C) requires the trial court to state the factual basis for its sentencing conclusions. As set forth in State v. Williams, 397 So.2d 1287, 1291 (La.1981), this requirement '... in most cases is crucial to this Court when called upon to execute its constitutional function to review a sentence complained of as excessive.’”

The court in Knox went on to say that the trial court did not satisfactorily comply with 894.1.

A review of the instant record does not lead this court to the same conclusion reached in Knox. In his reasons for judgment the trial judge stated:

“I have in hand a photocopy of the United States Department of Justice rap sheet on this defendant, which was provided me this morning; not agreeably, in connection with the pre-sentence report previously supplied me, but supplied me this morning. I will be glad to have you look at it.
“As nearly as I can tell, it verifies the allegations in the pre-sentence investigation report that this man is a third felony offender.
“The Court has reviewed the presen-tence investigation report, and what it reveals about this defendant and this offense in light of Article 894.1 of the Code of Criminal Procedure, which sets forth the sentencing guidelines in this case.
“Having done so, the Court concludes that the aggravating factors of that article are controlling in this case; specifically sections A (1) and (2), which provide that during the term of any probation that might be imposed, the defendant is likely to commit another crime; and secondly, that he is in need of a custodial environment, best provided by his confinement to an institution.
“These conclusions by the Court are based primarily on the fact that he is a third felony offender; his age of twenty-three (23), and of course, being a third felony offender, he is not eligible for probation under Article 893; the facts of the instant crime; the extensive use in the past by this defendant of virtually every illegal drug known, with the exception of heroin; the extensive use of alcohol, and the failure of the defendant to deal with this problem satisfactorily in the past. All of these indicate to the Court that these factors are controlling in this case.
“The Court has, in addition, reviewed the mitigating factors of Article 894.1, and finds that where those are applicable, they are outweighed by the other considerations stated by the Court.
sfs *

This court concludes that the trial court did adequately consider the factors enumerated in 894.1.

ASSIGNMENT OF ERROR NUMBER TWO

Remedies also argues that the trial judge imposed an excessive sentence in violation of Article I § 20 of the 1974 Constitution. This provision states, in pertinent part:

“No law shall subject any person to euthanasia, to torture, or to cruel, excessive or unusual punishment.”

Regarding exeessiveness our Supreme Court, in State v. Campbell, 404 So.2d 1205, 1207 (La.1981), reasoned as follows:

“The imposition of a sentence, even though within statutory limits, may violate a defendant’s right, under the Louisiana Constitution, against excessive punishment. Therefore, excessiveness of sentence is an appropriate question for review on appeal. See State v. Sepulvado, 367 So.2d 762 (La.1979). In State v. Bonanno, 384 So.2d 355 (La.1980) we set forth the standard to be used in reviewing a sentence alleged to be excessive. Therein we commented:
‘As stated previously, to determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. State v. Goode, supra. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Beavers, 382 So.2d 943 (La.1980).”’

Before imposing the concurrent nine year sentences the trial judge examined the pre-sentence investigation and Remedies’ rap sheet.

A consideration of the information provided by the F.B.I. rap sheet alone leads us to the conclusion that Remedies’ concurrent nine year sentences are not excessive. This report reveals that Remedies is a third felony offender. In 1977, he was convicted of theft and sentenced to serve two years under the Texas Department of Corrections at Huntsville, Texas. Remedies was also convicted in 1979, of burglary of a vehicle for which he was sentenced to serve three years in the Huntsville facility.

Remedies’ record identifies his propensity for criminal behavior, especially of the nature for which he stands convicted before this court. Accordingly, we conclude that sentencing Remedies to concurrent nine year terms from a possible twenty-four year imprisonment was not an abuse of the trial court’s discretion.

ASSIGNMENT OF ERROR NUMBER THREE

Remedies’ third assignment of error is also related to his claim that his sentences are excessive. Remedies contends that it was error for the trial judge to consider his admissions to other crimes as reported in the presentence investigation in imposing sentence on Remedies. Remedies claims these admissions were attained in violation of his Fifth Amendment right against self-incrimination; therefore, the statements should not have been considered by the judge in determining Remedies’ prison term. Without consideration of these admissions, Remedies contends, his sentences are excessive.

We do not find it necessary to make a determination regarding this assignment. In view of his past record, and without considering his admissions set forth in the presentence report, Remedies sentences are not excessive.

For these reasons, the conviction and sentences are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. James CRUZ, Defendant-Appellant.
    No. CR83-130.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Vernon B. Clark, Smith, Ford & Clark, Leesville, for defendant-appellant.
    Asa Skinner, Asst. Dist. Atty., Leesville, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

The defendant was charged by bill of information with aggravated battery in violation of LSA-R.S. 14:34. After making bond on the above charge defendant left the state and failed to appear before the trial court on the date assigned; subsequently, defendant was also charged with “jumping bail” in violation of LSA-R.S. 14:110.1. Upon his return to Louisiana defendant pleaded guilty to attempted aggravated battery, LSA-R.S. 14:27 and LSA-R.S. 14:34, and jumping bail. The trial court ordered and received a pre-sentence investigation and defendant was sentenced to three years on the battery charge and one year for the jumping bail, the sentences to be served consecutively.

Defendant brings this appeal alleging that each sentence is excessive.

Defendant contends that the trial judge failed to follow the sentencing guidelines contained in Art. 894.1 of the Code of Criminal Procedure and that the reasons stated by the trial court for imposing the respective sentences in each case were not supported by the information found in the pre-sentence report. It is further contended that, had the 894.1 guidelines been considered fully and the evidence in the pre-sentence report reviewed in light of the guidelines, defendant would have received a less severe sentence on each charge.

We will discuss the facts surrounding the instant charges and the information contained in defendant’s pre-sentence investigation along with the trial judge’s reasons for sentencing and Louisiana jurisprudence regarding sentencing in order to determine whether the trial court erred.

FACTS CONCERNING THE INSTANT CHARGES

On or about March 15, 1981, the defendant, along with several other persons, attended a party in a mobile home park in Vernon Parish, Louisiana. Apparently everyone at the party had been drinking. At some point the defendant left the party and obtained a shotgun. The defendant then waited outside of the trailer and shot the next person who emerged. The record does not reflect any motive whatsoever for this violent assault. The victim was struck in the face and suffered severe wounds; the victim spent approximately eighteen months in the hospital and suffered considerable physical deformity. The victim is scheduled to undergo surgery in the future to correct injuries inflicted by the defendant.

After being arrested and charged for the above conduct, defendant made bond through a local bonding company. The defendant was scheduled to appear before the district court on October 5, 1981. Defendant failed to appear and he was subsequently charged with jumping bail. The company which wrote defendant’s bond on the aggravated battery charge located the defendant in Massachusetts and, after much effort and expense, returned him to Louisiana.

On November 5, 1982, the defendant entered a plea of guilty to a reduced charge of attempted aggravated battery and to the charge of jumping bail. At that time the trial judge ascertained that the defendant’s plea was made freely and voluntarily and, after accepting the pleas, the trial judge deferred sentencing pending the receipt of a pre-sentence investigation.

THE PRE-SENTENCE INVESTIGATION

The defendant was born in New York, New York, and grew up in what was described by the New York social worker as “probably the most deteriorated area in the Bronx.” Defendant was a member of at least two street gangs during his youth. Defendant’s mother had the defendant committed to the Hampton Training School in Hampton, New York, in 1969, when defendant was fifteen years old, for a two year term. Defendant’s criminal record from 1971 to date, beginning almost immediately upon his release from Hampton, reflects a total of sixteen arrests. The offenses for which defendant was arrested range from disorderly conduct and trespassing to various drug charges, assault with a deadly weapon (two occurrences) and attempted murder.

The Louisiana Division of Probation and Parole, which compiled the pre-sentence report, was only able to obtain information on the disposition of four of the arrests mentioned above. The defendant served ten days in jail for the criminal trespass charge; two charges of possession of stolen property, along with charges of unlawful possession of a vehicle identification number and attempted grand larceny, auto, were dismissed and the attempted murder charge was reduced to assault to which defendant pleaded guilty. The remainder of the charges, all from either New York or Boston, Massachusetts, do not list disposition in any manner.

The defendant is married and the father of two small children. His wife and children are currently living with his wife’s mother in Boston. Defendant’s wife indicated that the defendant was a good husband and father and that, since their marriage, he had not “had any problems with the law.” (The defendant’s record indicates otherwise.)

The defendant originally came to Louisiana as a member of the United States Army. Several of his superiors at Fort Polk, Louisiana, indicated the defendant used drugs and was disrespectful and non-cooperative. The defendant went AWOL from the Army when he jumped bail in the instant case and has since been discharged.

The pre-sentence report correctly noted that, because this was defendant’s second felony conviction, the other being the New York assault charge, defendant is not eligible for probation. (See: LSA-C.Cr.P. 893.) Defendant owes the company which provided his original bond $8,047.62 for expenses incurred in bringing him back to Louisiana and he currently owes the victim of the shotgun assault $375.00 for expenses the victim has incurred. (The victim was a Sergeant in the Army and evidently the Army has taken care of his medical bills, otherwise defendant would also owe these to the victim.)

TRIAL JUDGE’S REASONS

On January 24, 1983, the trial judge held a sentencing hearing. The pre-sentence report was made available to all parties and a copy of it was filed in the record. After detailing the charges against the defendant the trial judge asked defendant’s counsel if there was anything he wished to present on behalf of defendant. At that point defendant’s counsel introduced a letter from one of the parish deputies which indicated defendant had been a “good prisoner and has caused no trouble during his confinement.” Defendant’s counsel also reiterated to the court that defendant was married and a father and that defendant’s family were dependent upon him for their support. The trial judge accepted the letter from the jailer and acknowledged defendant’s marital and family status. Then the trial judge gave his reasons for sentencing.

The trial judge began his reasons by noting the serious harm caused by the defendant. The victim of defendant’s unprovoked attack was seriously injured and has suffered permanent disfigurement; also, the possibility of such harm occurring as a result of defendant’s activities must have been apparent to the defendant. The trial judge noted the substantial sums expended by both defendant’s original bonding agent and the State of Louisiana in securing defendant’s return to Louisiana; the judge also pointed out that neither victim of defendant’s activities has been compensated.

The next topic addressed by the trial judge was the defendant’s criminal record. The trial judge listed the various types of charges which had been brought against the defendant in the past, including the two assaults with a deadly weapon arrests and the attempted murder arrest, and noted that the instant charge arose out of conduct by the defendant which was not “unique, unusual or unlikely to occur.” The trial judge again noted the unprovoked nature of the attack along with the defendant’s background and record and stated that he felt the defendant would commit other crimes if allowed to remain free.

Once again, before actually passing sentence, the trial judge asked defendant’s counsel if there was anything to be added in defendant’s favor. Defendant’s counsel indicated he did not think his client was a second felony offender but, after reviewing defendant’s record and consulting with the defendant, counsel acknowledged that defendant indeed had a prior felony conviction. At that point defendant’s counsel indicated he had nothing further to add on defendant’s behalf.

In passing sentence the trial judge said that he did not consider probation as a viable alternative for this defendant. (In fact, the Louisiana Code of Criminal Procedure would prohibit probation in this case.) The trial court then sentenced defendant to three of a possible five years on the attempted aggravated battery charge and to one of a possible two years on the jumping bail charge.

EXCESSIVE SENTENCES

At this point several rules are clearly established in our law concerning excessive sentences: A sentence, even one within statutory limits, may be found to be excessive if it is out of all proportion to the severity of the crime and shocks the sense of justice of this court. Also, trial judges must articulate at least some basis for their sentence to comply with 894.1 and assure that each sentence is individualized as to that particular defendant.

Although the trial judge did not specifically mention art. 894.1 in his statements during sentencing it seems clear to this court that the guidelines established by that article were considered. Neither of the sentences received by the defendant were maximum sentences under the respective statutes and, even being served consecutively, we find that neither sentence is excessive.

Another portion of defendant’s argument to this court involves the use by the trial judge of defendant’s extensive arrest record when only two, at most, convictions were reflected. We find no error in the trial judge’s actions. As was stated in State v. Washington, 414 So.2d 313, 315 (La.1982):

“[T]he sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Douglas, 389 So.2d 1263 (La.1980). Prior criminal activity is one of the factors under art. 894.1 to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Brown, 410 So.2d 1043 (La.19820.”

An appropriate statement concerning this argument is also found in State v. Williams, 412 So.2d 1327, 1328 (La.1982), where the Louisiana Supreme Court stated:

“[t]he choice of sentences within the statutory range lies within the sound discretion of the trial judge, subject only to the constitutional prohibition against excessive sentences. Here, the trial judge carefully articulated the basis for the sentence after considering appropriate factors, including defendant’s history of criminal activity.

The sentences are not excessive. Article 894.1 has been complied with.

For these reasons, the convictions and sentences are affirmed.

AFFIRMED.

        Both arrests and convictions may be considered in imposing sentence, as long as defendant, as here, is given notice of the derogatory information and is afforded a chance to speak in mitigation. In some cases it may be preferable to ascertain the factual basis for an arrest from such sources as police reports or presentence investigation reports. The sources of information upon which trial judges may draw in determining an appropriate sentence must be wide and varied, and not subject to the normal restrictions imposed in the guilt determination phase of the proceedings. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).”