text:
    STATE of Louisiana, Plaintiff-Appellee, v. Gerald ALLEN, Defendant-Appellant.
    No. CR83-141.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Kenneth W. DeJean, Lafayette, for defendant-appellant:
    Louis G. Garrot, Asst. Dist. Atty., Abbe-ville, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

The defendant was charged by grand jury indictment with the crime of second degree murder, a violation of LSA-R.S. 14:30.1. The matter was tried to a jury, which found the defendant guilty of manslaughter. Following a pre-sentence investigation, the trial judge sentenced the defendant to twenty-one years at hard labor.

On appeal, the defendant asserts in brief (1) that the trial judge erred in failing to comply with the sentencing guidelines established by LSA-C.Cr.P. Art. 894.1; and, (2) that the trial judge erred in admitting, during the sentencing hearing, testimony regarding other crimes committed by the defendant. For the reasons which follow, we do not consider these contentions, our review being limited to errors patent on the face of the record.

The scope of appellate review in criminal matters is established by LSA-C.Cr.P. Art. 920, which 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.”

We have carefully inspected the record in this matter, and find that no assignments of error were filed by the defendant 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. State v. Zeno, 322 So.2d 136 (La.1975). 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.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Joseph GUILLORY, Defendant-Appellant.
    No. CR83-148.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Larry C. Dupuis, Edwards, Stefanski & Barousse, Crowley, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., and Donald Richard, Asst. Dist. Atty., Opelou-sas, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

Defendant, Joseph Guillory, was charged by grand jury indictment with the crime of first degree murder, a violation of LSA-R.S. 14:30. Trial was had on November 10-11, 1982, and defendant was convicted by a jury of second degree murder, a violation of LSA-R.S. 14:30.1, and sentenced on November 22, 1982, to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now seeks review of his conviction.

FACTS

Defendant Guillory entered the Tip-Top Lounge in Eunice, Louisiana, on January 14, 1982, at approximately 9:00 p.m. Eyewitness testimony varies widely as to the events of the next few minutes; however, all witnesses agree that, after a short time, defendant stopped in the doorway on his way out when he was approached by the victim, Harry Walker. Before Walker could get closer than 5-6 feet from Guillory and the doorway, Guillory fired three shots from a .32 caliber pistol, killing Walker and wounding a bystander. Defendant then left the Tip-Top and was placed in custody a short time later.

Defendant assigns the following errors:
1. The trial court erred in overruling defendant’s objection to the District Attorney’s leading questions on direct examination, in that their purpose was to negate a plea of self-defense.
2. The trial court erred in overruling defendant’s objection to overbroad redirect examination of a witness.
3. The trial court erred in overruling defendant’s objection to the district attorney’s elicitation of testimony showing that Miranda warnings were given to defendant three times prior to the time defendant made an incul-patory statement, thus inferring to the jury that other statements may have been taken.
4. The trial court erred in overruling defendant’s objection to admission of physical evidence (a weapon, coat and cartridges) since a sufficient chain of custody was not established.

ASSIGNMENT OF ERROR NO. 1

The defendant asserts that the trial court erred in overruling defendant’s objection to the district attorney’s leading questions on direct examination, in that their purpose was to negate a plea of self-defense.

On Page 17 of the trial record, the following exchange took place on direct examination of a prosecution witness by the district attorney:

Q Did Harry Walker ever close his fist at Joseph Guillory?
A No, sir.
Q Did Harry Walker ever swing a blow at Joseph Guillory?
A No, sir.
Q Did you ever see anybody close his fist at Joseph Guillory that night?
MR. EDWARDS Your Honor, I object to the leading nature, I let him go some, but he continues so I object.
THE COURT The objection is overruled.
Q Did you ever see anyone throw a blow at Joseph Guillory that night?
A No, sir. I didn’t

The defense claims that these questions were aimed at defeating a claim of self-defense by the defendant.

The applicable test is enunciated in State v. Prestridge, 399 So.2d 564 (La.1981), at p. 573:

A leading question is one which suggests to the witness the answer he is to deliver; ordinarily, such questions are prohibited when posed to one’s own witness unless the witness is hostile or unwilling. La.R.S. 15:277. The purpose of the rule is to guard against the danger that a witness will acquiesce to a false suggestion. State v. Carthan, 377 So.2d 308 (La.1979). Notwithstanding the general rule, a verdict should be disturbed on appeal only where there is a clear abuse by counsel, calculated to prejudice the rights of the accused. State v. Quincy, 363 So.2d 647 (La.1978). In any event, the matter is largely within the discretion of the trial judge; absent a palpable abuse of his discretion, a finding of reversible error is unwarranted. State v. Fallon, 290 So.2d 273 (La.1974).

See also State v. Sneed, 328 So.2d 126 (La.1976); State v. George, 346 So.2d 694 (La.1977).

Under the above standard there cannot be said to be a clear abuse of discretion. Had the witness answered any of the four questions in the affirmative, the district attorney would have elicited strong evidence of self-defense by the defendant from the State’s own witness. If any answer was “suggested” to the witness, it was an answer unfavorable to the State. Thus, the defendant does not appear to have suffered any prejudice from this line of questioning; hence, the trial judge properly overruled the defense objection.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant objects to the prosecution’s redirect examination of eyewitness Albertha Walker as going beyond the scope of cross-examination. On cross-examination, defendant’s counsel asked Albertha Walker where defendant was standing in relation to the door and how he was holding the door. On redirect, the following question was asked by the district attorney:

Q How long was Joseph Guillory at the door before your brother walked up to him?

At this point, counsel for defendant objected.

The scope of redirect examination is outlined by LSA-R.S. 15:281 as follows:

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

It is a well-settled rule that when the defendant is allowed the opportunity for re-cross examination on new subject matter which has been brought out by the State during redirect examination, such recross cures any error which may have resulted from the improper redirect. State v. Chapman, 410 So.2d 689 (La.1982). State v. Drew, 360 So.2d 500 (La.1978). In the instant case, the defendant was afforded ample opportunity for re-cross examination on the new subject matter; therefore, any error by the trial court was cured. Moreover, once testimony was elicited by defendant regarding the circumstances surrounding the last moments before the fatal shots were fired, then questioning on redirect examination should be allowed as to the timing of the relevant acts. The defense questions on redirect examination were aimed at determining defendant’s position while he was standing in the doorway; this figuratively opened the door for the State, on redirect examination, to ascertain how long defendant stood in the doorway. Thus, the State’s redirect examination was within the proper ambit of “the subject matter of cross-examination.”

For these reasons this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant asserts that the trial court erred in allowing into evidence the testimony of police officers that the defendant was read his Miranda warnings on three separate occasions; however, subsequent to the initial two occasions, the defendant did not give a statement. He contends that this evidence was irrelevant and prejudicial to his case since the jury could have drawn an inference that, on those occasions, statements were given by defendant which were excluded from the evidence and thus unavailable to the jury.

LSA-R.S. 15:451 states:
§ 451. Condition precedent to use of confession; free and voluntary rule
Before what purposes1 to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.
LSA-R.S. 15:441 states:
§ 441. Relevant evidence defined; facts admissible
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.

The State argues that the testimony reflecting these repetitive Miranda warnings was relevant to show that, once defendant did make a statement, he did so with full understanding of his rights. The State bears a heavy burden of proof to demonstrate that a confession is given in a free and voluntary manner. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Lindsey, 404 So.2d 466 (La.1981). Since this evidence was relevant to this burden of proof imposed upon the State, its admissibility should not be defeated by a possibility of prejudice where the basis of such a possibility is innuendo of excluded evidence which is not evident from the record.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant assigns as error the trial court’s overruling an objection to the insufficiency of the “chain of evidence” established with relation to certain physical evidence, to wit: a weapon, coat, and cartridges.

LSA-C.Cr.P. art. 773 states in part:
Art. 773. Order of evidence
Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.

Admission of physical evidence requires that such a foundation be laid, either by positive identification by a witness or through establishment of a “chain of custody.” State v. Drew, 360 So.2d 500 (La.1978); State v. Paster, 373 So.2d 170 (La.1979).

However, a continuous chain of custody need not be established if the evidence as a whole establishes that it is more probable than not that the object introduced is the same as the object originally seized by the police officers. State v. McCabe, 420 So.2d 955 (La.1982). Moreover, any defect in the chain of custody goes to the weight of the evidence rather than to admissibility. State v. Sam, 412 So.2d 1082 (La.1982).

In the instant case, the State adduced a plethora of testimony relating to the chain of custody. As to the weapon, the testimony in the trial record reflects that Officer Fusilier saw defendant throw it into a ditch, Officer Bishop retrieved the gun from the ditch, Detective Brickley, custodian of evidence for the Eunice Police Department, took the gun from Bishop, tagged it and sealed it up. Officer Manuel then transported the gun to Acadiana Crim-inalistics Laboratory, where it was received by Mr. Epstein, a forensic specialist, who examined it and sealed it in an envelope. The envelope remained unopened until Epstein opened it at trial.

As for defendant’s coat, the testimony in the trial record reflects that Officer Gaunt retrieved it from the defendant and released it to Brickley, who placed it in the Eunice Police Department locked evidence room. As for the spent cartridge retrieved from the victim’s body, Officer Moody received it from the hospital and delivered it to Brickley who locked it in the evidence room along with the coat. Epstein’s secretary, Ms. Myers, received these two items at the Acadiana Laboratory, where they were analyzed before being sent back to Brickley and to the trial.

In view of the extensive testimony evident in the trial record on the issue of the “chain of custody” of these items, defendant’s objections were properly overruled. Even assuming that this chain of custody was not complete in every minute detail, it may nevertheless be said that sufficient evidence was available to support a finding by the trier of fact that, more probable than not, the objects introduced into evidence were the same as those originally seized by the Eunice police officers. Thus any defect must go to the weight of the evidence rather than to admissibility, and the trial court judge’s ruling as to admissibility is therefore affirmed.

For the reasons assigned hereinabove, the appellant’s conviction and sentence are affirmed.

AFFIRMED.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Robert PIERRE, Defendant-Appellant.
    No. CR83-150.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Harold L. Savoie, Lafayette, for defendant-appellant.
    Michelle Jackson, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

On November 17, 1982, the defendant, Robert Pierre, was convicted, by unanimous verdict of a twelve person jury, of one count of aggravated rape, a violation of LSA-R.S. 14:42, and one count of aggravated burglary, a violation of LSA-R.S. 14:60. On the conviction for aggravated rape, the defendant was sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence, and on the conviction for aggravated burglary, the defendant was sentenced to thirty (30) years at hard labor, the sentences to run consecutively. The defendant has appealed his convictions and the sentences imposed.

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 convictions and the sentences imposed.

AFFIRMED.


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Calvin MINIX, Defendant-Appellant.
    No. CR83-153.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Harold L. Thibodeaux, Book & Thibo-deaux, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and Karen Price, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

Defendant, Calvin Minix, was charged by a bill of information with the crime of driving while intoxicated, third offense, in violation of LSA-R.S. 14:98(D). A jury found the defendant guilty and the trial judge sentenced defendant to serve one year in the Calcasieu Parish jail and pay a fine of $750.00. The defendant was also ordered to pay court costs or, in default thereof, to serve an additional three months in the Calcasieu Parish jail.

Defendant moved for an appeal and timely filed written assignments of error. Since this appeal was lodged it has not been pursued by either the defendant or his attorney.

A party’s failure to file a brief in this court results in the loss of the non-filing party’s right to oral argument. Uniform Rules, Courts of Appeal, Rule 2 § 12.12. Further, this court may consider as abandoned any assignment of error which has not been briefed. Uniform Rules, Courts of Appeal, Rule 2 § 12.4. Pursuant to the above rules and, in line with many years of jurisprudence from our Louisiana Supreme Court, we consider the assignments of error raised on defendant’s behalf as being abandoned.

Though the errors specified by defendant’s counsel in his assignments of error are considered abandoned this does not end our review of this case. An error which is discoverable upon a mere inspection of the pleadings and proceedings must be considered by the court on appeal. LSA-C.Cr.P. art. 920(2). Our review of the instant record has revealed such an error. However, as discussed below, the error patent which exists in this record is not a reversible error and the decision of the trial court shall be affirmed.

Defendant was charged with violation of LSA-R.S. 14:98(D). The specific charge reads as follows: “Operating a vehicle while intoxicated, 3d offense.” For the State to successfully prosecute a defendant for this offense it must necessarily prove two prior, valid convictions of operating a vehicle while intoxicated. The Bill of Information presented by the district attorney attempted to enumerate the defendant’s two previous convictions. As originally prepared, the bill contained the following statement:

“[Tjhat the said CALVIN MINIX is a third offender since he has been convicted in the following instances for the commission of operating a vehicle while intoxicated, to-wit: On the 5th day of March, 1979, in the City Court of Lake Charles, Parish of Calcasieu, State of Louisiana, he was convicted for operating a vehicle while intoxicated, in violation of LSA-R.S. 14:98, and on the 16th day of December, 1980, in the 81st Judicial District Court, Parish of Jefferson Davis, State of Louisiana, he was convicted for operating a vehicle while intoxicated, in violation of LSA-R.S. 14:98.”

At the trial of this matter, on January 4, 1983, the district attorney’s office moved to amend the original Bill of Information to reflect that the defendant’s March 1979, conviction in Lake Charles’ City Court was for a violation of a Lake Charles city ordinance, Lake Charles Ordinance 20:17, rather than for a violation of the Louisiana State Statute, LSA-R.S. 14:98. Over defendant’s objection, the amendment was so ordered. The “error which is discoverable by a mere inspection of the pleadings and proceedings” was made as a result of the amendment. When the Bill of Information was amended to reflect that the March 1979, conviction was a violation of a Lake Charles city ordinance, an over-zealous typist also changed the specified violation for the December 1980, conviction. Thus, the Bill of Information, after amendment, read in part:

“[a]nd on the 16th day of December, 1980, in the 31st Judicial District Court, Parish of Jefferson Davis, State of Louisiana, he was convicted for operating a vehicle while intoxicated in violation of Lake Charles Ordinance 20:17.”

Obviously, a conviction in the Thirty-First Judicial District Court for the Parish of Jefferson Davis cannot be based on the violation of a Lake Charles city ordinance. Lake Charles is located in Cal-casieu Parish and the Jefferson Davis Parish Court would have no jurisdiction over a violation of the Lake Charles ordinance; further, any conduct which took place in Jefferson Davis Parish could not be a violation of a Lake Charles ordinance. Therefore, as the Bill of Information currently reads, there exists an error on its face. A clerical error, however, does not necessarily warrant reversal of a conviction. State v. Hamilton, 297 So.2d 419 (La.1974).

In State v. Johnson, 404 So.2d 239 (La.1981), the Supreme Court of this state faced a similar question arising from an amended answer to a request for a bill of information. There, the court stated:

“[I]f an indictment states the essential facts of an offense charged, an error or omission in the statutory citation does not require reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. LSA-C.Cr.P. art. 464. The trial court allowed the State to amend its answer to defendants’ bill of particulars to show that the correct statute is LSA-R.S. 40:967. Defendants were not misled by the erroneous citation and the fact that they were charged under the wrong statute is not ground for reversal of their convictions. State v. James, 305 So.2d 514 (La.1974).”

Similarly, in State v. White, 404 So.2d 1202 (La.1981), addressing an argument for remand to the trial court for compliance with the rule requiring a twenty-four hour delay between conviction and sentencing, the high court stated:

“A remand would only serve to lengthen unnecessarily the already substantial delays involved in this case and would in no way further the goal of achieving a fair and just decision on either verdict or sentence. It is illogical for this court to remand for the reimposition of sentence merely because there is an ‘error’ in the minutes’ lack of an affirmative waiver of the 24-hour delay. Just as non-prejudicial violations of the accused’s statutory rights do not mandate reversal, an error in procedure which does not affect the fundamental fairness of the process does not necessarily require reversal and remand, unless prejudice is shown. C.Cr.P. Art. 921. In fact, C.Cr.P. art. 921 mandates that this court not reverse a judgment because of an ‘error, defect, irregularity or variance which does not affect substantial rights of the accused’. (Emphasis in the original.)
“We accordingly hold that there is no need to equate errors discoverable on the face of the pleadings and proceedings with reversible error. Whether a patent error, like other statutory error, requires reversal must be evaluated in light of the potential impact on the fairness of the proceedings.” (Emphasis added.)

Here, the error patent did not exist prior to trial, the time when an error in a bill of information may cause prejudice to a defendant in the preparation of a defense. The error, by virtue of a clerical mistake, occurred in the retyping of the bill of information. The defendant was informed of the charge against him prior to trial and during the time any defense was being prepared. The defendant was not harmed by the error. The conviction of the defendant, Calvin Minix, for violation of LSA-R.S. 14:98(D) and his sentence are affirmed.

For these reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . State v. Johnson, supra, was tried with a companion case, State v. Kelly, 404 So.2d 239 (La.1981). Defendant Kelly sought writs to the United States Supreme Court which were denied at Kelly v. Louisiana, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982).


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Johnny Charles BROWN, Defendant-Appellant.
    No. CR83-165.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    D. Michael Mooney, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.

      Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

The defendant, Johnny Charles Brown, was charged by bill of information with the crime of aggravated burglary. He entered a plea of not guilty and not guilty by reason of insanity. The defendant was tried, found guilty as charged, and sentenced to serve fifteen years at hard labor.

The defendant filed two assignments of error pursuant to LSA-C.Cr.P. Art. 844. By the first assignment, the defendant asserted that the failure of the trial court to grant a new trial was error because the record supported the defendant’s plea of not guilty and not guilty by reason of insanity. Secondly, the defendant asserted that the sentence imposed by the trial court is excessive.

The assignments of error filed by the defendant were neither briefed nor argued, and thus are considered abandoned. State v. Perry, 420 So.2d 139 (La.1982).

Because we do not consider the assignments of error filed by the defendant, our review of this matter 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. Elvis J. LANE, Defendant-Appellant.
    No. CR83-172.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Jan. 6,1984.

      Philip G. Hunter and John E. Morton, Führer, Flournoy & Hunter, Alexandria, for defendant-appellant.
    Joseph P. Beck, II, Dist. Atty., Colfax, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

Defendant was charged by bill of information with two counts of simple burglary, violations of LSA-R.S. 14:62. He pleaded guilty to one count of simple burglary, reserving his right to appeal the trial court’s denial of his motion to suppress, and was sentenced to five years at hard labor with the Louisiana Department of Corrections. The sentence was suspended; defendant was placed on five years supervised probation. Defendant appeals his conviction and presents five assignments of error.

FACTS

On the evening of November 4, 1981, the Grant Parish Sheriff’s Department was notified that the Summerfield Baptist Church and a house belonging to a Mr. Paige had been burglarized. The crime scenes were located approximately one mile from each other on Summerfield Road in Colfax, Louisiana. Investigating deputies were informed by residents of Summerfield Road that two men in a van had been seen “patrolling” the area earlier that day and twice had stopped to ask for directions to the residence of Carroll Yercher. The men were described as a tall, black male and a shorter white male with a dark complexion. The white male appeared to be of Spanish descent and was attired in a blue T-shirt emblazoned with the logo “Dixie Gas.”

Around 8:00 P.M. that evening, the officers pulled over a van on Summerfield Road that matched the description of the one sighted earlier that day. As the driver, Ms. Estelle Granier, stepped out of the vehicle, a man’s wallet fell to the ground. The officers inspected its contents and discovered identification belonging to a Nep Lewis of Gonzales, Louisiana. Lewis fit the description of the black male sighted earlier driving a van. Accordingly, they requested Ms. Granier to accompany them to the Grant Parish courthouse for questioning.

Upon learning that Ms. Granier was from Gonzales, Louisiana, the deputies telephoned the Gonzales Police Department for additional information. They learned that Nep Lewis was an employee of Ms. Granier and that the white male suspect fit the description of Elvis Lane who had not reported to work at the Dixie Gas Company that day.

Suspecting that Ms. Granier’s van was indeed the same vehicle observed patrolling the Summerfield Road, the officers requested permission to search it. Ms. Granier acquiesced by signing a written consent to search form. Inside the van the officers discovered furniture taken from the Paige residence.

The next “break” in the case occurred a few hours later at approximately midnight. Mr. Paige called the deputies and told them that he had just seen a tall, black male in the company of a short, white male walking near his home on Summerfield Road. He identified the men as the two strangers in the van who had asked for directions earlier that day. The officers proceeded immediately to Summerfield Road, where they arrested Nep Lewis and defendant without incident. Defendant was wearing a blue T-shirt sporting the logo “Dixie Gas.”

ASSIGNMENT OF ERROR NUMBER 1

By this assignment defendant contends that the trial court erred in finding probable cause for his arrest, as there was no direct evidence linking him with criminal activity.

LSA-C.Cr.P. art. 213 provides, in pertinent part:

“A peace officer may, without a warrant, arrest a person when:
* * * * * *
(S) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.

Reasonable cause has been equated with the probable cause concept and exists when the facts and circumstances, known to the arresting officer and of which he has reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing that a person to be arrested has committed a crime. State v. Arceneaux, 425 So.2d 740 (La.1983). Probable cause for arrest is to be judged by probabilities and practical considerations of everyday life on which average men, particularly average police officers, can be expected to act.

In the instant case, the arresting deputies had in their possession information connecting defendant with at least one Summerfield Road burglary. Defendant had been observed by local residents, patrolling the area in a van that resembled the vehicle owned by Ms. Granier, which had earlier been discovered to contain items stolen from the Paige house. Additionally, the black male traveling with defendant was known at the time of defendant’s arrest to be Nep Lewis, an employee of Ms. Granier. Finally, the deputies had learned from interrogating Ms. Granier that she had been in the company that day of a white male fitting defendant’s description. Under these circumstances the arresting deputies clearly had probable cause to believe that defendant was involved in the Summerfield Road burglaries. This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBERS 2, 3, and 4

(2) The trial court erred in finding that, what purported to be Elvis Lane’s confession, was given freely and voluntarily;
(3) The trial court erred in finding that the State made the showing required by LSA-R.S. 15:451;
(4) The trial court erred in disallowing defendant’s testimony as to what defendant thought would be best for him to do after the conversation with the Gonzales City Police Department.

Immediately after his arrest, defendant was taken to the Sheriff’s Department for booking and interrogation. Before any questioning occurred, however, the deputies placed a telephone call to the Gonzales Police Department. The purpose of this call was to receive any available information concerning the defendant who worked in Gonzales. They subsequently informed defendant that a Gonzales Police official wished to speak with him. Deputy Hata-way, who had called the Gonzales Police Department, said he did not know the name of the officer who requested to speak to the defendant, nor did he know either the purpose of the request or what was said. At the hearing defendant testified that the officer was Clarence “Bimbo” Brock. Upon the conclusion of his talk with Brock, the defendant was read his Miranda rights. He indicated that he understood those rights and signed a written waiver. Only then did the Grant Parish deputies initiate their interrogation, and the defendant gave a written statement which implicated him in the two burglaries at issue.

At the hearing on the motion to suppress, the defendant attempted to state what he had been told in the telephone conversation with the officer. The trial judge sustained the State’s objection on the grounds of inadmissible hearsay (LSA-R.S. 15:4m). This is of no moment, however, as the defendant subsequently testified as follows:

“Q. And did your conversation with this man on the telephone change your mind what you felt your rights were?
A. Yes, sir. From what he had told me [he] said that it would be better for me to answer the questions they had asked.”

Defendant does not contend that the arresting deputies, in any manner, forced or induced him to provide the statement he did. The record clearly indicates that he was informed of his Miranda rights and chose to waive those rights prior to incriminating himself. His sole basis in seeking to have suppressed his written and signed in-culpatory statement is Brock’s conversation with defendant, wherein the latter was allegedly told that it would be “better” to answer the questions asked of him. Defendant does not allege that any promises, threats or inducements were made by Brock.

The facts of this case are similar to those in State v. Petterway, 403 So.2d 1157 (La.1981), where an officer admitted that he had told defendant “that things would go easier for him if he cooperated.” In addressing that remark, the court stated as follows:

“[Statements of this type, rather than being promises or inducements designed to extract a confession, are more likely musings not much beyond what this defendant might well have concluded for himself. ”

Also, see State v. Dison, 396 So.2d 1254 (La.1981); State v. Hall, 434 So.2d 517 (La.App. 2nd Cir.1983).

Viewing the circumstances surrounding the defendant’s confession, we cannot find that he was subjected to any undue influence, and we agree with the lower court’s ruling that the statement was freely and voluntarily given. For these reasons, these assignments have no merit.

ASSIGNMENT OF ERROR NUMBER 5

Defendant argues that the search warrant issued for the search of the U-Haul truck was defective and, therefore, the evidence seized pursuant thereto should have been suppressed. In his written confession, defendant mentioned that items taken from the Summerfield Baptist Church were stashed in a U-Haul truck, which the deputies later learned through interrogation of defendant and Nep Lewis, was parked at a site near Fort Buhlow Lake in Rapides Parish. Acting on this information one of the deputies obtained a search warrant. The record reflects that Deputy Hataway appeared before Judge Robert P. Jackson of the Ninth Judicial District Court and, in a written and signed affidavit, set forth facts which established probable cause to search the U-Haul truck.

Armed with the warrant, the deputies searched the truck and discovered furniture and other items taken from the Summer-field Baptist Church. Defense counsel argues that “[T]he testimony of Deputy Hata-way indicates that although there was an affidavit prepared in connection with the search of the U-Haul truck, Deputy Hata-way, as the affiant, was never placed under oath” and for this reason the search warrant is rendered defective and the fruits of its execution are inadmissible against defendant. We disagree.

Article I, § 5 of the Louisiana Constitution of 1974 and Article 612 of the Code of Criminal Procedure require that search warrants, in addition to particularly describing the place to be searched and the object of the search, must be supported by a showing of probable cause established to the satisfaction of a judge by the affidavit of a credible person. And, in State v. Case, 363 So.2d 486 (La.1978), our Supreme Court held that the affidavit cannot be oral, but must be written.

The record before us indicates that both constitutional and legislative requirements were met when the search warrant challenged was issued. The affidavit in question clearly indicates that Deputy Hataway executed the affidavit before District Judge Robert P. Jackson, setting forth certain facts which established probable cause for the warrant’s issuance.

Both Hataway and Judge Jackson signed the affidavit, the latter attesting that it had been sworn to before him. The affidavit reflects that the requisite formalities were met. Accordingly, this assignment is without merit.

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

AFFIRMED.

      . This ruling was in error. The policeman’s alleged remarks were not sought to be introduced because of the truth of their content, but they were to indicate the defendant’s state of mind after hearing what was said. See e.g., State v. Turner, 392 So.2d 436 (La.1980).

      . After the defendant gave this answer, the district attorney objected. The trial judge sustained the objection and ordered the answer stricken. The answer appears in the record and, since the ruling of the trial court was erroneous, we shall consider the answer to the question.

      .The defendant never sought a subpoena to have Brock testify as to what he in fact said to defendant. LSA-C.Cr.P. art. 731. The arresting officers and the State were unaware of Brock’s identity.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Gregory CORMIER, and Michael Owen, Defendants-Appellants.
    No. K83-179.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Dec. 16,1983.

      Jim Ortego, Lloyd Keith Milam, Lake Charles, for defendants-appellants.
    Robert R. Bryant, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Defendants, Gregory Cormier and Michael Owen, were jointly and formally charged by grand jury indictment with attempted second degree murder, aggravated crime against nature and armed robbery. LSA-R.S. 14:27, R.S. 14:30.1, R.S. 14:89.1(2) and R.S. 14:64. Both defendants entered a plea of not guilty to all charges and filed a motion to suppress tangible evidence obtained in the course of an alleged unconstitutional search. The trial court denied the motion and the defendants sought writs to this court seeking a reversal of the trial court ruling. We denied the writ. Subsequently, the Supreme Court, 435 So.2d 454, granted writs setting aside the ruling of this court and remanded the case to this court for briefing, argument and an opinion. After a thorough review we conclude that the trial court ruling was correct. Hence, defendants’ writ is denied.

FACTS

At approximately 1:30 a.m. on October 14, 1982, Lt. McCann of the Sulphur Police Department received a call that a woman had been beaten, stabbed, sexually assaulted and robbed by two men. Speaking through her son at the hospital, the victim identified one of her assailants as the “Owens boy”. The son told Lt. McCann that at one time Owens resided with Carl Evans in a trailer on North Crocker Street in Sul-phur. Acting on this information, the lieutenant sent Officer Johnson and his partner to Evans’ trailer to ascertain whether Evans knew where Owens could be found. At approximately 2:30 a.m. the officers arrived at the trailer and immediately noticed someone peering out of a window. Officer Johnson knocked on the front door and beckoned in a loud voice for the occupants to answer, but got no reply. Lt. Carroll knocked on the trailer door, identified himself as a police officer, but was equally unsuccessful in rousing the occupants. Lt. Carroll returned to Lt. McCann after instructing Officer Johnson and his partner to watch the trailer’s two doors and allow no one to leave the premises. McCann sent him back to the trailer with instructions to enter if no one responded to his knocking. Lt. Carroll was unable to get a response and at approximately 3:00 a.m. he and the other officers made a warrantless entry into the trailer.

What transpired next is the subject of conflicting testimony. The state maintains that the officers awakened the occupants from their slumber and in the process discovered the presence of the two suspects, defendants Owen and Cormier. They contend that no searches or arrests were made until after Carl Evans signed a consent form to search the premises, approximately 45 minutes after the entry. Everyone in the trailer was arrested after a search yielded a small amount of marijuana and several items missing from the victim’s residence.

Defendants’ version of the incident is somewhat different. They contend that after the police entered the trailer and discovered their presence, everyone inside was arrested including the owner Evans. They assert that the police conducted a limited search of their persons and the immediate area before Evans signed the consent form 45 minutes later at 3:45 a.m.

The defendants’ assignment of error presents two (2) issues for our determination:

(1) Whether the defendants were adversely affected within the meaning of our constitution and have standing to challenge the constitutionality of the search and seizure, and;
(2) Whether the warrantless entry into Carl Evans’ trailer and subsequent search and seizure was in violation of defendants’ United States Fourth Amendment and Louisiana Article I, sec. 5, constitutional rights?

ISSUE # 1

The threshold inquiry with any constitutional challenge to a search and seizure is whether the accused enjoyed a Fourth Amendment/Art. I, § 5 interest. For without such, he has no standing to object. To demonstrate this interest, defendant must show that he had a reasonable expectation of privacy which society deems worthy of protection and that he was adversely affected by the search and seizure. State v. Ragsdale, 381 So.2d 492 (La.1980); LSA-Const. art. I, § 5 (1974).

In determining whether defendants Owen and Cormier had a Fourth Amendment/Art. I, § 5 interest, we note the following facts:

The search and seizure occurred inside the private residence of a third party, Carl Evans. It resulted from a purely investigatory effort by the police to locate the defendant, Owens. The police had good cause to make inquiry with Carl Evans concerning the whereabouts of Owens, since Owens reportedly resided with Evans “at one time”. Carl Evans could have refused to cooperate with the police when approached, but instead consented to a search of his home to absolve himself from suspicion of the police. The search revealed the presence of the defendants and the incriminating tangible evidence which the defendants seek to suppress.

The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable. State v. Ragsdale, supra. In this instance, we find that neither of the defendants have shown, nor is there evidence which tends to show that they possessed a reasonable expectation of privacy which society deems worthy of protecting. The defendants did not have a protectable privacy interest while transiently at the home of Carl Evans, a third party, to the extent that they have standing to object to reasonable inquiries made by the police upon the owner of the trailer. Within the meaning of Article I, sec. 5 of our constitution, the defendants are without standing to challenge the constitutionality of the search and seizure since they are not “adversely affected”. It was the trailer owner’s constitutional rights that were allegedly infringed upon, rather than defendants’. Should defendants have standing in this case they would effectively be allowed to complain of an alleged unreasonable search upon a third party. We will not allow defendants to assert alleged unconstitutional acts committed upon third parties in order that they might suppress otherwise competent evidence.

In State v. Barrett, 408 So.2d 903 (La.1981), the Louisiana Supreme Court was presented with a case placing at issue the proper construction of the term “adversely affected” in Article I, sec. 5 of our constitution. In Barrett, supra, the police arrested the subject of an arrest warrant in the house of a third party without having obtained a search warrant to search the third party’s home. The defendant objected to the warrantless entry and moved to suppress evidence obtained against him. In denying the motion to suppress, the court held:

“Therefore, the narrow issue presented for our determination is whether, within the meaning and purpose of our constitutional provision, the subject of an arrest warrant in the house of a third person where entry was accomplished without a search warrant or exigent circumstances or consent, was ‘adversely affected’ so as to require suppression of evidence seized incidental to his lawful arrest. We think not.”

Despite the fact that an accused may be prejudiced by illegally obtained evidence, he may not have standing to object unless he is “adversely affected” within the meaning of the fourth amendment of the United States Constitution and Article I, section 5 of the Constitution of Louisiana. Since there is no evidence tending to show that defendants had a proprietary or pos-sessory interest in the premises searched, or a reasonable expectation of privacy which society deems worthy of protection, we conclude that the defendants were not adversely affected. For this reason they are without standing to challenge the constitutionality of the search and seizure.

ISSUE # 2

Essentially, the defendants argue that the state failed to prove that the warrant-less entry and search of the trailer was either freely and voluntarily consented to or secured through a recognized exception to the rule requiring that a warrant be obtained before entry and search of a dwelling house.

The United States and Louisiana Constitutions afford a person protection against unreasonable searches and seizures by requiring that the police obtain a warrant supported by probable cause before they conduct a search or seizure. U.S. Const.Amend. IV; La. Const. art. I, § 5 (1974); State v. Keller, 403 So.2d 693 (La.1981). Probable cause exists when facts within the officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a reasonable man in the belief that the place to be searched will contain the object of the search (a suspect or contraband). Ragsdale, supra at 495.

Once the accused has demonstrated that he was subjected to a warrantless search or seizure, the state bears the burden of justifying the intrusion as one of the narrowly defined exceptions to the warrant requirement. State v. Cunningham, 412 So.2d 1329 (La.1982). The exceptions include where the police are in “hot pursuit” of a suspect, or where there is a danger of destruction of evidence. State v. Hathaway, 411 So.2d 1074 (La.1982). These exceptions, also known as exigent circumstances, will justify a warrantless search and seizure only if the police had probable cause and if obtaining a warrant was truly impractical. Cunningham, supra at 1331; Hathaway, supra at 1079.

The constitutional right to be secure against Fourth Amendment/Art. I § 5 intrusions may be waived. When an individual consents to a search, this constitutes one of the well recognized exceptions to the warrant requirement, as well as, the requirement of probable cause. Ragsdale, supra at 497. Any person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected can authorize a search of those premises. State v. Bodley, 394 So.2d 584 (La.1981). A consent to search made after an illegal entry is valid only if the circumstances indicate that it was free and voluntary and not an exploitation of the illegality. Ragsdale, supra at 497. In resolving this issue we consider whether the officers informed the defendant of his right to refuse permission to search; the temporal proximity between the initial intrusion and the consent; the presence of intervening circumstances; and the purpose and fla-graney of the official misconduct. Rags-dale, supra at 497. A valid consent will effectively waive not only the “consenter’s” rights against unreasonable search and seizures but also the rights of any other person^) who might have been adversely affected. Through retrospective application, the waiver can validate searches or seizures that occurred before the consent was granted. As the Supreme Court noted in State v. Williams, 353 So.2d 1299 (La.1977) at 1305:

“The consent ... is not only a consent to future searches and seizures, but it amounts to a waiver of the warrant requirement with respect to the search previously conducted.”

The facts in Williams, supra, indicate that the police searched the defendant’s home and impounded his automobile without a warrant. Defendant was arrested and taken to the stationhouse where he signed a consent form authorizing the police to search his home and car. The court held in Williams, supra at 1305:

“... [E]ven if the initial entry into defendant’s house and impoundment of his automobile resulted in a warrantless search or seizure, the subsequent voluntary, written consent to search a second time amounted to a waiver of the warrant requirement rendering both the first and second search and seizures valid.”

Fourth Amendment/Art. I, § 5 violations are abrogated by invocation of the “exclusionary rule” which mandates that evidence obtained pursuant to an unreasonable search and seizure cannot be used at trial. State v. Davis, 375 So.2d 69 (La.1979).

Defendants have presented a very persuasive argument that the search and seizures conducted in the Evans trailer cannot be justified under any theory of “exigent circumstances.” The record does not support the state’s contention that the officers had probable cause to believe defendants were inside the trailer, nor does the record reflect that obtaining a search warrant was impractical because there was a danger of destruction of evidence. On the contrary, the testimony of the police officers indicates that they did not believe that the defendants were actually inside the trailer when they decided to enter. Their only motive appears to have been to locate and question Carl Evans about the defendants’ whereabouts. Lt. McCann initially testified that there was no probable cause to believe defendants were inside the trailer but then recanted on re-direct examination and stated that he suspected Michael Owen was inside. The only basis for such belief, however, appears to be the information that he received from the victim’s son.

More persuasive is the state’s assertion that the entry and subsequent search was justified by a valid consent. The record indicates that at 3:45 a.m., Carl Evans, the owner of the trailer, signed a consent form authorizing the police to search the trailer. The form was signed inside the trailer, approximately 45 minutes after the entry. The officers testified that Evans was not under arrest at the time he consented nor was he subjected to any threats or promises. Their testimony reveals that Evans was warned at least on one occasion that he was under no obligation to consent.

It is important to note that the police entry into the Evans trailer was not intended as a fishing expedition for evidence of general criminal áctivity. On the contrary, they were investigating a particularly brutal crime and had been led to believe that Carl Evans could help resolve the case. The officers testified that they conducted no searches and made no arrests until after the consent form was signed.

There is nothing in the record to support defendants’ assertion that the consent was the product of coercion. All factors considered, the record indicates that Carl Evans freely and voluntarily consented to the search of his trailer. Therefore, in light of the Williams decision, supra, it can be said that the consent validated the search and seizures which followed and the warrantless entry and any search of the premises that occurred prior thereto.

The consent justified the officers’ presence inside the trailer. Therefore, upon observing the defendants, the officers acted properly in arresting them without an arrest warrant. State v. Wichers, 392 So.2d 419 (La.1981). A search of defendants’ persons was valid as a search incident to an arrest. It is of no consequence that the defendants may not have been technically under arrest at the time the personal searches were conducted for as the Supreme Court stated in State v. Melton, 412 So.2d 1065 (La.1982):

“If an arrest is justified before the search, it is not unreasonable for the search to be made before instead of after the arrest ... When there is probable cause but no formal arrest, a limited search to preserve evidence is justified.”

We conclude that Issue # 2 is resolved in favor of the state since defendants’ assignment of error lacks merit.

For the reasons stated above, we find that the trial court ruling on the motion to suppress was proper. Therefore, defendants’ writ is denied.

WRIT DENIED.

      . United States Constitution, Amendment IV and Louisiana Constitution Article I, Section 5, respectively.

      . United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) was overruled by Salvucci. Standing depends on legitimate proprietary and/or possessory interest, or an expectation of privacy in the invaded place. Also see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Albert STONER, Defendant-Appellant.
    No. CR83-200.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      John M. Crochet, Rogers, St. Romain & Oubre, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

The defendant-appellant, Albert Stoner, was convicted of three counts of forgery in violation of LSA-R.S. 14:72. The trial judge imposed a sentence of six years on each count, with the sentences to run consecutively. The defendant appeals asserting that (1) the sentence is unconstitutionally excessive; and, (2) the trial judge failed to adequately state the reasons for imposing sentence as required by LSA-C.Cr.P. Art. 894.1.

FACTS

In April of 1982, defendant was employed by Joseph Fisher to assist in painting the house of William E. Geer. On April 13, 1982, Mr. Geer, while examining his checking account statement discovered two checks payable to Albert Stoner, which had been written on his account, bearing his forged signature. One check, dated April 7, 1982, was in the amount of $750.00; the other, dated April 8, 1982, was in the amount of $625.00. On July 8, 1982, the defendant attempted to cash a check drawn on the account of McNeil’s Sound of Music made payable to Billy C. Kibodeaux, signed George McNeil, which had been reported stolen. The defendant admitted that he had found the check and altered it in his attempt to cash it.

The defendant is presently 42 years old and married, but has been separated, legally or in fact, for the past four years. He has no children and was employed at the time of the sentencing hearing. He admitted at the sentencing hearing to having two prior felony convictions for theft for which he served time at hard labor, the last of which was in 1962. The defendant’s criminal record also shows several other arrests.

ARGUMENTS ON ASSIGNMENTS OF ERROR

The defendant contends that the sentence of six years on each of the three counts to run consecutively for a total of eighteen years constitutes excessive punishment in violation of Article 1, § 20 of the 1974 Louisiana Constitution. The defendant submits that considering his background and the nature of the crime, the length of sentence imposed was grossly disproportionate to the nature of the offense. The defendant further contends that the court failed to state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

It is well settled that the imposition of a sentence, although within the statutory limits, may violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Washington, 414 So.2d 313 (1982); State v. Duhon, 431 So.2d 120 (La.App. 3rd Cir.1983). In determining whether the penalty is grossly disproportionate, the court 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. Bonanno, 384 So.2d 355, 358 (La.1980). In reviewing a claim of excessive sentencing, the trial judge is to be-afforded wide discretion in the imposition of the sentences within statutory limits, and the sentence imposed should not be set aside in the absence of a manifest abuse of his discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982).

The maximum penalty for forgery is ten years imprisonment at hard labor and a $5,000.00 fine. Thus, defendant was exposed to a penalty of not more than fifteen thousand dollars in fines and thirty years at hard labor. Defendant’s sentences for a total of 18 years is well within the statutory limits. Defendant’s claim of excessive sentence appears to be based on the argument that the court afforded too much weight to the two 20 year old felony convictions for theft.

LSA-C.Cr.P. Art. 894.1 must be considered by the trial judge before imposing sentence. In State v. Sepulvado, supra, at 7, the Supreme Court stated in reference to this article that it provides:

“... appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of length or because it specifies confinement rather than less onerous sentencing alternatives.”

The purpose of this article is to provide the trial court with standards so that it may individualize the sentence to fit the particular defendant, considering his background and the offense he committed. While the trial court need not articulate every aggravating and mitigating circumstance, the record must reflect that it has adequately considered these guidelines in particularizing the sentence to defendant. State v. Duncan, 420 So.2d 1105 (La.1982).

At the sentencing hearing, the trial judge expressly referred to the guidelines of LSA-C.Cr.P. Art. 894.1. He found that there is an undue risk that during the period of any suspended sentence or probation, that the defendant would commit another crime. He based this finding on defendant’s own admissions that he has two prior felony convictions for which he was sentenced, and for which he served time in Angola. Although noting that the last sentence was in 1962, he concluded that the defendant has apparently failed to learn from his previous errors no matter how ancient. The trial judge further found that the defendant is in need of correctional treatment in a custodial environment by commitment to an institution based on defendant’s conduct and admission of guilt. Relying in particular on defendant’s prior criminal record, the trial judge concluded that a lesser sentence would deprecate the seriousness of the defendant’s crime.

In imposing sentence the judge further considered, based on the evidence, that: (1) the defendant’s conduct had caused serious harm in that his victims had suffered unre-covered financial loss which harm was contemplated by the defendant as evidenced by his admissions; (2) that the defendant had not compensated his victims for the damages sustained; (3) that his criminal conduct was unprovoked and uninduced; (4) that the character and attitude of the defendant indicated that he is likely to commit other crimes as evidenced by his failure to learn from his past mistakes; and, (5) that the imprisonment of the defendant would not entail any hardship to himself and his dependents since he has no children and is separated from his wife.

In particularizing the sentence to the defendant, the trial judge adequately considered the defendant’s background and the nature of the crime in light of the standards, set forth in LSA-C.Cr.P. Art. 894.1. We find that the trial judge adequately complied with the provisions of LSA-C.Cr.P. Art. 894.1.

Accordingly, we conclude that the sentence imposed is not so disproportionate to the crime committed as to shock our sense of justice or to constitute a manifest abuse of the trial judge’s discretion. We find the sentence to be reasonable and just.

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

AFFIRMED.


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Daryl SYLVESTER, Defendant-Appellant.
    No. CR83-214.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Thomas L. Lorenzi, Nick Pizzolatto, Jr., Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and Charles W. Richard, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   STOKER, Judge.

Defendant, Daryl Sylvester, was convicted of second degree murder in violation of LSA-R.S. 14:30.1 in connection with the death of his girlfriend, Katherine Barker. He was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

FACTS

Defendant, Daryl Sylvester, had been living with Katherine Barker, the victim, for ten or eleven months. During this time, the couple had separated six or seven times because of frequent disagreements. On the day of the incident, February 28, 1980, the defendant was living at Chennault Palms Apartments in Lake Charles, Louisiana. Ms. Barker had moved out of the apartment about two weeks earlier as a result of their most recent disagreement.

On February 28, 1980, at approximately 6:15 PM, defendant returned to the apartment with an acquaintance, Kenneth Bu-channan. The two had been fishing. Defendant was armed with a 9 mm automatic pistol. He used it during the fishing trip to shoot snakes. They, together with David Buchannan, a neighbor, entered defendant’s apartment and found a note Ms. Barker had left on the kitchen table advising defendant to get out of the apartment and not to do any damage or she would kill him. Ms. Barker was not present in the apartment.

The three went to a convenience store to purchase some beer and, upon returning, saw Ms. Barker’s car parked in front of the apartment complex. Defendant waited for Ms. Barker at the front of the building in an apparent attempt to speak to her. As she returned to her car, the defendant approached her. He was still armed with the 9 mm pistol. Defendant approached the driver’s side of the car. Ms. Barker entered her car and partially rolled down the window on the driver’s side so they could talk. Defendant testified that Katherine Barker threatened to kill him, turned to the right, picked up a gun and pointed it at him. Defendant drew his pistol and fired twice through the window, fatally striking Ms. Barker. Katherine Barker got out of the passenger side of the car, collapsed and died. The defendant was held by the apartment complex security guard until taken into custody by the Sheriff’s Department.

Defendant has never denied shooting Katherine Barker. His sole contention is that he was justified in killing her in self-defense. He has appealed from his conviction and sentence and has perfected three assignments of error. For the reasons assigned below, we affirm.

ASSIGNMENT OF ERROR NO. 1

This assignment of error deals with the trial court’s refusal to allow evidence of prior specific threats by the victim against the defendant. Defendant sought to testify that on a prior occasion the victim had attempted to kill him by trying to run over him with a car. The State’s objection to this testimony was sustained. The defendant claims this evidence was admissible in accordance with LSA-R.S. 15:482, infra.

Evidence of the victim’s dangerous character or threats against the accused supports a plea of self-defense because it is relevant to show that defendant’s apprehension of danger was reasonable and to show the victim was the aggressor. State v. Edwards, 420 So.2d 663 (La.1982). The foundation for the admissibility of such evidence is found in LSA-R.S. 15:482:

“In the absence 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 the accused is not admissible.”

The issue is whether or not defendant satisfied this foundation requirement by producing evidence that the victim had made a hostile demonstration or overt act against defendant at the time of the incident. Such a showing was a prerequisite to introducing evidence of the victim’s dangerous character or of her threats against the defendant.

The term “overt act” means any act of the victim which manifests to the mind of a reasonable person a present intention to kill or do serious bodily harm to the defendant at the time the principal offense occurred. State v. Edwards, supra. The test to be met is whether there was “appreciable evidence of an overt act or hostile demonstration.” State v. Lee, 331 So.2d 455 (La.1975).

In State v. Lee, supra, the Louisiana Supreme Court found that testimony from two defense eyewitnesses who saw the victim drop a knife after defendant shot him was sufficient to meet the “appreciable evidence” test. In State v. Edwards, supra, the Louisiana Supreme Court found that physical evidence which supported defendant’s own testimony was sufficient to meet the “appreciable evidence” test.

In the instant case, the “overt act” or “hostile demonstration” alleged by the defendant is his claim that as he was talking with the victim, who was seated in her car, she told him that she was going to kill him, then turned and picked up a gun and pointed it at him. The sole evidence to support this version is defendant’s own testimony. There were no eyewitnesses who could corroborate this, and the physical evidence conflicts with defendant’s testimony as well. The defendant has failed to meet the “appreciable evidence” test. The trial court properly refused to allow defendant’s testimony concerning prior specific threats by the victim against the defendant. This-assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

This assignment urges that the trial judge gave the appearance of commenting unfavorably upon defense evidence in the presence of the jury. The defendant alleges that various rulings of the trial court taken together gave the appearance that something was “wrong” with the testimony of several defense witnesses, including defendant himself, that his evidence was not “good” evidence, and that the judge did not believe the jury should hear it. The defense feels this led the jury to view suspiciously his most important evidence, thus denying defendant a fair and impartial trial.

In order to prove self-defense, defense counsel sought to adduce testimony from the defendant and several defense witnesses concerning the violent and hostile nature of the victim. (See State v. Lee, supra, for the relevance of this evidence.) During defendant’s testimony-in-chief, counsel attempted to elicit information concerning defendant’s prior knowledge of the victim’s attempts to kill her ex-husband and to kill a police officer. A hearsay objection by the State resulted in a bench conference. The question objected to was: “Did Katherine Barker ever talk to you about her ex-husband?” The jury remained in the courtroom. The objection was sustained, and defense counsel abandoned this line of questioning.

Carlton Barker, Sr., ex-husband of the victim, was the next defense witness called. Defendant tried to have Mr. Barker testify concerning the victim’s past attempts to kill him. The State objected, and the court immediately ordered the jury removed. The ground for the objection was that the testimony concerned specific acts of violence not admissible as evidence of general reputation under LSA-R.S. 15:479. After an extended argument, the objection was sustained.

The jury was brought back into the courtroom. As decided in the bench conference, Mr. Barker was excused as a witness and defendant was recalled for the limited purpose of laying a foundation. His testimony, which again concerned his prior knowledge of the victim’s attempts to kill her ex-husband and to kill a police officer, was now received without objection. The form of the question asked to elicit this testimony differed from the question previously directed to defendant. The record reflects the trial judge’s concern with protecting the defendant’s right to present a defense. Mr. Barker was recalled and continued his testimony. The other defense witnesses were similarly permitted to testify. Through this sequence of events, defendant contends that the trial judge erred by giving the appearance of commenting unfavorably upon his evidence in the presence of the jury.

LSA-C.Cr.P. art. 772 provides:
“The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

Although C.Cr.P. art. 772 prohibits any comment upon the evidence by the judge in the jury’s presence, a ruling on the admissibility of evidence and the remarks by a trial judge giving reasons for his rulings on objections are not objectionable as comments on the case unless such remarks are unfair or prejudicial. State v. Toomer, 395 So.2d 1320 (La.1981). After the State’s hearsay objection to defendant’s testimony, the record indicates that the trial judge’s sole comment was, “It depends on what the next question is, I believe. I’ll let that question go by, or that answer.” After this comment, defense counsel asked to approach the bench. A bench conference took place after which defense counsel pursued a different line of questioning. This remark clearly cannot be construed as an unfair or prejudicial comment on the evidence, and is controlled by State v. Toomer, supra. When the State objected to Mr. Barker’s testimony concerning the victim’s acts of violence against him, the record indicates that the trial judge made no comments whatsoever. In fact, after the objection was made, the trial judge immediately ordered that the jury be removed. The jury’s removal was clearly an indication of substantial safeguards taken by the trial judge to protect the defendant. Standing alone, neither of these two occurrences violated C.Cr.P. art. 772.

After the jury returned to the courtroom, the defendant was recalled to lay a foundation for Mr. Barker’s testimony. Defendant did so without objection. Then Mr. Barker was recalled and continued his testimony. Defendant seemingly tries to tie all of these events together, contending that when viewed as whole they amount to unfavorable comment upon the evidence. The thrust of his argument seems to go to the subject matter of the evidence sought to be introduced. In each instance, defense counsel attempted to introduce evidence of the defendant’s prior knowledge of violent acts of the victim towards others. Defendant asserts that the trial judge gave the appearance of commenting unfavorably upon the evidence by first sustaining two objections to its admission, then having the defendant and then Mr. Barker recalled to testify concerning these same matters, and thereafter permitting the testimony to come into evidence. The contention that the jury would view these rulings by the trial court as an unfavorable comment upon defendant’s evidence is without merit, especially in view of the fact that this evidence did come in.

ASSIGNMENT OF ERROR NO. 3

In this assignment, defendant contends that the jury’s verdict, finding him guilty of second degree murder in violation of LSA-R.S. 14:30.1, is in error. The basis for this contention is that the State’s evidence was insufficient to establish that the killing was not committed in self-defense and that defendant was not the aggressor. A defendant in a homicide prosecution who asserts that he acted in self-defense does not have the burden of proof on that issue because the State bears the burden' of establishing beyond a reasonable doubt that the homicide was not perpetrated in self-defense. State v. Brown, 414 So.2d 726 (La.1982).

In order to afford a criminal defendant due process, the relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact would have found beyond a reasonable doubt that the homicide was not committed in self-defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), State v. Brown, supra.

Since defendant freely admits to killing the victim by shooting her, the focus of our inquiry is on the sufficiency of the evidence to negate self-defense and that defendant was the aggressor.

LSA-R.S. 14:20 reads in pertinent part as follows:

“A homicide is justifiable:

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

LSA-R.S. 14:21 provides:

“A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.”

Although we have previously stated the facts, we find it necessary at this point to provide a more detailed statement for review of this assignment. No room for doubt exists regarding the victim’s capacity for violence. Several witnesses testified that she attempted to kill or seriously injure them. Defendant testified that he knew of at least some of these incidents prior to the day of the shooting. There is also evidence of the victim’s prior threats against defendant. Defendant testified that a few days before the shooting, the victim showed him a gun she had purchased and threatened to kill him. On the day of the shooting, defendant found a note left by the victim in which she threatened to kill him if he damaged her property. It is evident that the couple had a stormy relationship with frequent disagreements resulting in several separations. Finally, investigators discovered a pistol partially protruding from under and between the front seats of the victim’s car when it was searched shortly after the shooting.

On the other hand, there is evidence indicating that defendant himself was capable of violent acts. The victim’s sister testified that on one occasion the defendant had apparently broken a television set and injured the victim’s arm after having had an argument with the victim. It also seems that defendant took some rings belonging to the victim just prior to their most recent separation. These rings were mentioned in the note left by the victim. Viewed as a whole, the evidence clearly indicates that defendant and the victim could not get along.

With the relationship broken off and while staying with her sister, the victim returned to the apartment to remove some clothing. She left a note telling defendant to leave her alone, to get out of her life, and not to damage any of her property or she would kill him. The defendant read this note upon returning to the apartment after a fishing trip. He testified that he went fishing during the middle of February and carried a gun so he could shoot snakes.

After reading the note, he went to a Fas-stop store with friends to get some beer. When they returned to the apartment, defendant noticed the victim’s car parked in front of the apartment building. The defendant, still armed with the pistol, waited in front of the building for Katherine Barker to return to her ear.

When Katherine Barker exited from the side of the building and approached her car, she passed a security guard who was about to enter his car. Apparently after noticing defendant in front of the building, she stopped the security guard and asked him .to wait a moment. She then proceeded toward her car with the security guard following at a distance.

The defendant had begun to approach her and indicated that he wanted to talk. She at first refused, but defendant persisted, and after she entered her car he further approached and positioned himself outside of the ear opposite the driver’s side window.

The security guard did not hear any loud talking or arguments, but immediately after defendant reached the driver’s side door the security guard heard two shots. According to defendant, she threatened to kill him, turned to the right and picked up a gun, turned back to face him and then pointed the gun at him. Defendant then pulled his gun out of his pants and fired two shots before she was able to fire even one shot.

The coroner testified that one bullet entered on the lower left side of the back in front of the chest near the mid-line. The other bullet entered at about mid-chest and traveled in the direction of the right shoulder and. exited toward the armpit. This physical evidence indicates that the victim was moving toward the right and away from defendant, and not facing him as he contends. The investigating officers’ testimony indicates that the victim’s gun was positioned under and between the front seat. The victim was right-handed. It would seem highly improbable (assuming that the victim had the gun in her hand in the first place) that she would have sought to reposition the gun under and between the front seats while she was engaged in an attempt to get away from the defendant on the right side of the vehicle. Assuming that she had already been shot, it stretches the imagination even further to consider that such a person could so position any gun.

Defendant, Daryl Sylvester, knew the victim’s reputation for violence. He knew that they were not getting along and that she did not want any contact with him. Yet, knowing this, he confronted her that night armed with a pistol and claims he acted in self-defense. The physical evidence standing alone strongly indicates that decedent never drew a gun on the defendant, and that he was the aggressor.

In viewing the evidence in the light most favorable to the prosecution, the jury had sufficient evidence to conclude beyond a reasonable doubt that the state proved the essential elements of the crime. This assignment is also without merit.

DECREE

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

AFFIRMED.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Larry James MOSS and Edward Dan Goodman, Defendants-Appellants.
    No. CR83-233.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Dec. 9,1983.

      William D. Dyess, Many, for Moss.
    Don Burkett, Self & Burkett, Many, for Goodman.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The defendants, Larry James Moss and Edward Dan Goodman, were jointly charged by bill of information with possession of marijuana with intent to distribute, a violation of LSA-R.S. 40:966 A. The defendants pleaded guilty to the charge. The trial judge imposed a sentence of five years at hard labor on each defendant. The defendants appeal claiming that the sentences imposed are excessive and the trial judge failed to apply the sentencing guidelines of LSA-C.Cr.P. Art. 894.1.

FACTS

Both ° defendants, Moss and Goodman, were stopped in a pickup truck, based on information received by Deputy John Rain-er. Goodman admitted to marijuana being in the truck and signed a consent to search. Approximately two pounds of marijuana were found in the truck. Just two hours prior to their arrests, the defendants had sold marijuana to an undercover agent.

As a result of negotiated plea bargains, the State agreed not to prosecute the defendants for the sale to the undercover agent and for a maximum sentence limitation of six years. Without this negotiated plea, the defendants were exposed to a $15,-000 fine and ten years, plus prosecution on another charge.

Rather than plea to a specific sentence, the defendants negotiated for a maximum sentence limitation of six years. This was thoroughly discussed with the defendants by the trial judge when he accepted their pleas. The defendants now complain that the sentences are excessive while they have benefited from a negotiated plea with the State for a sentence within the plea range. We will not entertain a complaint of excessiveness when the sentences fall within less than the maximum limitation bargained for and agreed upon.

We do not find the sentences to be invalid.

MOSS SENTENCE

The sentencing judge had the benefit of a presentence investigation report which he stated that he had reviewed. Moss’ attorney specifically pointed out to the court certain mitigating circumstances to include: the defendant was 21 years of age; he had no previous criminal record; and was employed.

The sentencing court also indicated it had reviewed the defendant’s presentence investigation report in light of Article 894.1 and the court felt the seriousness of the offense outweighed the mitigating circumstances. The court felt that the defendant was likely to commit another crime and that a lesser sentence would deprecate the seriousness of this offense.

GOODMAN SENTENCE

Goodman’s sentence paralleled the sentencing procedure of Moss. In addition, the sentencing judge commented that the defendant’s age of 23 did not place him at an age level of one who is just reaching adulthood and committing a crime.

ASSIGNMENTS OF ERROR

Given compliance with Article 894.1, a sentence will not be set aside as excessive absent manifest abuse of the trial judge’s sentencing discretion. State v. Sepulvado, 367 So.2d 762 (La.1979). While not controlling, we consider that the plea bargain should be considered as a factor in determining whether the sentence imposed in accordance therewith is excessive. State v. Smack, 425 So.2d 737 (La.1983).

We find that the sentencing judge complied with Article 894.1. The mitigating circumstances were well considered by the judge. It is within his sentencing discretion to determine whether the aggravating circumstances outweigh the mitigating circumstances. The sentencing judge is not required to recite and list every factor in the statute governing sentencing guidelines. State v. Kline, 427 So.2d 1298 (La.App. 2nd Cir.1983). The record provides this court with an adequate basis for review and constitutes adequate compliance with Article 894.1. Where the record clearly shows an adequate factual basis for the sentence imposed, a remand to require the trial court to restate for the record matters which are already apparent from the record is unnecessary. State v. Day, 391 So.2d 1147 (La.1980); State v. Johnson, 411 So.2d 439 (La.1982).

The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980). We do not find the sentence imposed so disproportionate to the crimes committed as to shock our sense of justice.

We therefore find these assignments of error are without merit.

DECREE

The conviction and sentence of the defendants are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Roy Lee WILLIAMS, Defendant-Appellant.
    No. CR83-260.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    James S. Gravel, Gravel & Van Dyke, Alexandria, for defendant-appellant.
    R. Greg Fowler, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Defendant, Roy Lee Williams, was convicted of possession of a firearm by a felon and possession of a bomb in violation of LSA-R.S. 14:95.1 and LSA-R.S. 14:54s. Defendant was sentenced to imprisonment at hard labor without benefit of probation, parole or suspension of sentence for five (5) years for possession of a firearm by a felon and for three (3) years for possession of a bomb. These sentences are to run concurrently. Defendant appeals. We affirm.

Since defendant has neither set forth assignments of error nor has he filed a brief in this matter, our review normally would be limited to a mere inspection of the pleadings and proceedings for patent errors. State v. Dewey, 408 So.2d 1255 (La.1982); LSA-C.Cr.P. art. 920(2). However, upon review of the record, we find that counsel for defendant stated the following:

“Yes, your Honor, at this time we notify ... I notify the court of our intention to appeal and do appeal to the Third Circuit Court of Appeal and/or to the Supreme Court of the State of Louisiana. We will designate the entire record ... that we would desire the entire record as it is the defendant’s contention that an essential element of the crime ... of each crime has not been proven.”

Therefore, since it has been brought to our attention that an essential element of each crime has not been proven, we feel compelled to review the case for this alleged error. See State v. Raymo, 419 So.2d 858, at 861 (La.1982).

We do not hold that insufficiency of evidence is an error patent which should be checked in every case. But, if the error comes to the attention of the Court, the Court should recognize it, because no one should be put in prison if he has been convicted on insufficient evidence. State ex rel. Womack v. Blackburn, 393 So.2d 1216 (La.1981); id., 1220 (Lemmon, J. concurring).

On February 20, 1981, the Louisiana State Police were issued a warrant to search the residence of defendant, Roy Lee Williams. The next morning, the State Police, led by Trooper David Rushing, executed the warrant at 3111 Martin Street in Alexandria.

Trooper Rushing and his colleagues gained admittance to the residence when defendant responded to their knocking on the front door. After serving defendant with the search warrant, Trooper Rushing proceeded to search the premises.

As Trooper Rushing entered one of the bedrooms, he immediately noticed two weapons. The first, a fully loaded Smith & Wesson .357 magnum revolver, was lying on the bed about an inch from the pillow. The second, a loaded 12 guage double barreled shotgun, was standing in the corner of the room 6-9 inches from the bed. A further search of the bedroom yielded an unloaded .32 caliber revolver found in a brown bag on the dresser and a hand grenade simulator found in the closet of the bedroom.

Defendant was placed under arrest and was subsequently convicted of possession of a firearm by a felon and possession of a bomb.

On a review of sufficiency of evidence, we must determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

After reviewing the evidence and testimony in a light most favorable to the prosecution, we conclude that the essential elements of the crimes in which defendant was convicted were proven beyond a reasonable doubt.

For the foregoing reasons, the conviction and sentence of defendant, Roy Lee Williams, is affirmed.

AFFIRMED.

      . Defendant had previously plead guilty on June 16, 1980, to possession of marijuana with intent to distribute.

      . A hand grenade simulator is an explosive device manufactured by the United States Army designed to simulate an actual grenade exploding.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Howard DAVIS, Defendant-Appellant.
    No. CR83-276.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Andre Buisson, Jennings, for defendant-appellant.
    W. Gregory Arnette, Jr., Dist. Atty., W.J. Riley, and Jacquelyne Heinen, Asst. Dist. Attys., Jennings, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

A jury found the defendant, Howard Davis, Jr., guilty of two counts of distribution of marijuana, a violation of LSA-R.S. 40-.966A, and one count of distribution of cocaine, a violation of LSA-R.S. 40:967 A. The trial judge sentenced the defendant to the Louisiana Department of Corrections for a term of three years at hard labor on each count of distribution of marijuana, and five years at hard labor on his conviction of distribution of cocaine, the sentences to run consecutively. It is from these convictions and sentences that the defendant has perfected three assignments of error:

1. The trial court erred in allowing introduction of testimony tending to establish the offense of distribution of cocaine varying from the information provided by the State in response to defendant’s motion for bill of particulars.
2. The trial court erred by allowing introduction of State Exhibits 4 and 5, each being separate certificates from the Southwest Louisiana Criminalis-tics Laboratory, contrary to LSA-R.S. 15:499, et seq.
3.The trial court erred by imposing an excessive sentence in violation of Article I, Sec. 20 of the Constitution of the State of Louisiana, and in violation of the United States Constitution prohibiting cruel and unusual punishment.

For the following reasons we affirm defendant’s convictions and sentences.

FACTS

During the summer of 1981 a confidential informant introduced an undercover narcotics agent for the Louisiana State Police to the defendant. At the first meeting on June 25, 1981, the defendant sold two cellophane bags of a greenish vegetable-like matter to the undercover agent for $30 each. The Acadiana Regional Crime Lab analyzed the greenish vegetable-like material and determined that the substance was marijuana. The undercover agent went to the defendant’s residence on July 29, 1981, and purchased another cellophane bag of greenish vegetable-like material for $35. On July 31, 1981, while the undercover agent was at the defendant’s residence, the defendant assured the agent he could obtain some cocaine for $100 in New Orleans the next day. The agent gave the defendant $100 and was instructed to pick it up when the defendant returned. On August 1, 1981, the agent returned to the defendant’s residence and picked up a small brown bottle containing a white powdery substance.

The agent delivered the greenish vegetable-like material and the white powdery substance to the Southwest Louisiana Crim-inalistics Laboratory in Lake Charles where it was determined that the greenish vegetable-like material was marijuana and the white powdery substance was cocaine.

ASSIGNMENT OF ERROR ONE

The defendant contends that the trial court erred in allowing the State to introduce testimony which varied from the information previously furnished in the State’s answer to the defendant’s motion for a bill of particulars.

The article at issue requested: “At what time of day is it contended that defendant committed the offenses charged?” The State responded that the distribution of cocaine occurred on July 31, 1981, at approximately 9:20 p.m.

During trial, the agent responded that the defendant was given the money for the cocaine purchase on July 31, 1981, at approximately 7:30 p.m. Before he could explain that the defendant delivered the cocaine to him at approximately 9:00 p.m. on August 1, 1981, the defendant objected and requested the court to limit the agent’s response to the date of July 31, 1981, provided in the State’s answer to the motion for a bill of particulars. After removing the jury from the courtroom, the trial judge overruled the defendant’s objection and permitted the agent to testify to the related occurrences of August 1, 1981.

The indictment charged the defendant with distribution of cocaine on August 1, 1981, and the State’s answer to the bill of particulars stated July 31, 1981. This offense occurred over a two day period, i.e., the agent gave the money to the defendant to obtain the cocaine on July 31 and the defendant gave the cocaine to the agent on August 1. This was fully set out for the defendant in excess of two months before trial in the State’s motion for discovery and inspection, as follows:

“On July 31, 1981, at approximately 7:35 p.m. defendant received the money to purchase cocaine. Defendant was at his residence located at 903 S. Cutting Avenue, Jennings, Louisiana. On August 1, 1981, at approximately 9:00 p.m., defendant handed the cocaine over. The exchange occurred at defendant’s residence located at 903 S. Cutting Avenue, Jennings, La.”

We find that the defendant was neither surprised nor prejudiced by the agent’s testimony concerning the event of August 1, especially since a complete disclosure of the circumstances was provided by the State in its motion for discovery and inspection.

This assignment of error is without merit.

ASSIGNMENT OP ERROR TWO

The defendant alleges that the trial court erred in allowing the State to admit into evidence two certified lab reports which concluded that the evidence purchased from him was marijuana and cocaine. He argues that the State failed to provide him with proper notice required by LSA-R.S. 15:499 et seq.

The State gave notice to defendant of its intent to introduce a certificate from the Southwest Louisiana Criminalistics Laboratory analyzing and certifying the chemical content of the green plant material to be marijuana and the white powder to be cocaine. Two laboratory certificates were attached to the notice; one identifying and certifying the green plant material as marijuana, and the other identifying and certifying the white powder as cocaine. The defendant argues that the terminology of “a certificate” used by the State in its written notice should be strictly construed; therefore, the two separate lab certificates are improper evidence.

We do not find that the defendant was prejudiced in any manner by the State attaching two certificates rather than one certificate, simply because the District Attorney’s letter stated it was attaching “a certificate”. LSA-R.S. 15:501 specifically requires a letter by the party seeking to introduce a certificate, not less than ten days prior to the commencement of trial giving written notice of intent to offer proof by a certificate which is attached. The certificate shall be received in evidence as prima facie proof of its content and of proper chain of custody of the evidence. LSA-R.S. 15:500. This procedure relieves the party of the burden of having to produce the person who performed any tests on the evidence but allows the opposing party to subpoena under cross-examination the person performing the tests. LSA-R.S. 15:500.

The defendant was prosecuted for two counts of distribution of marijuana and one count of distribution of cocaine. The certificates are actually certified laboratory reports of the marijuana and cocaine that formed the basis of the prosecution. The State’s letter with the attached certificates is dated May 21,1982; the defendant’s trial was on December 1,1982. The information contained in the certificates could only have been helpful in preparing an adequate defense. We find that the defendant was neither confused nor surprised.

This assignment of error is without merit.

ASSIGNMENT OF ERROR THREE

In his third assignment of error the defendant alleges that the trial court failed to comply with LSA-C.Cr.P. Art. 894.1 and that the sentence imposed was excessive. The defendant was ordered to serve three years at hard labor on each of the two convictions for distribution of marijuana and five years at hard labor for his conviction for distribution of cocaine with the sentences to run consecutively.

The record reflects a presentence investigation was ordered on the defendant. At sentencing, the trial judge made the following observations: the defendant did not have a prior criminal record; he (trial judge) presided at the defendant’s trial and heard all of the evidence, and was aware that the jury returned a guilty verdict on all three counts; the three sales of drugs by the defendant to the undercover agent were done blatantly; and, the judge felt the defendant’s involvement in illegal drug sales was one of society’s worst crimes. The trial judge then particularized article 894.1A to the defendant.

The record reflects that the defendant sold marijuana and cocaine to the undercover agent within a period of two months. There was substantial evidence that marijuana was used regularly at defendant’s home and that the defendant’s home was being used to supply illegal drugs to various members of the community. The defendant was unemployed and the likelihood that he would commit another crime was great.

On the two counts of distribution of marijuana, the defendant was subject to a possible ten years at hard labor and a $15,000 fine on each count. LSA-R.S. 40:966 B(2). The sentencing judge sentenced him to three years on each count. On the distribution of cocaine, the defendant was subject to a minimum of five years at hard labor and a maximum of not more than thirty years, and a fine of $15,000. LSA-R.S. 40:967 B(l). The sentencing judge sentenced the defendant to five years. The sentences imposed were consecutive. The defendant was sentenced to serve a total of eleven years out of a possible fifty years.

The defendant’s sentence is not apparently severe and falls within the lower range. Where a sentence imposed is not apparently severe and is in the lower range of the sentencing scale, a remand is not necessary for compliance with Article 894.1 governing a judge’s reasons for sentence. State v. Jones, 412 So.2d 1051 (La.1982).

We find the record fully supports the sentence imposed. Where the record clearly shows an adequate factual basis for the sentence imposed, a remand to require the trial court to restate for the record matters which are already apparent from the record is unnecessary. State v. Day, 391 So.2d 1147 (La.1980).

A sentence will not be set aside as excessive absent manifest abuse of the trial judge’s sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

We do not find the sentence imposed so disproportionate to the crime committed as to shock our sense of justice.

This assignment of error is without merit.

DECREE

The conviction and sentence of the defendant are affirmed.

AFFIRMED.