author: SAVOIE, Judge. COLE, Judge,

text:
    Carl BUNCH v. Raymond HECK.
    No. 83 CA 0229.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.
    Leslie D. Ligón, Jr., George H. Ware, Jr., Clinton, for plaintiff-appellee.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant-lessee appeals his eviction from the leased property for breach of contract.

Plaintiff leased defendant certain property to conduct operations necessary for the mining and removing of marketable gravel, sand and sand-clay-gravel from the premises. This lease expressly prohibited defendant from using the leased premises for the transportation of any products from any land other than the leased property. Further, it provided that plaintiff could terminate the contract without previous putting in default if defendant failed to comply with the terms and conditions of the lease.

Subsequently, plaintiff notified defendant, by registered letter, that the lease was terminated due to defendant’s breach of certain lease provisions. Thereafter, a notice to vacate the premises was given to defendant. Defendant failed to comply therewith, and this lawsuit ensued.

The trial court determined that the defendant breached his contract in several respects, to-wit: (1) by dumping construction debris on the leased premises; (2) by non-payment of royalty payments; and (3) for providing insufficient accounting records to plaintiff. Accordingly, the trial court held that the lease was terminated thereby and granted plaintiff’s rule for eviction.

Defendant appeals, claiming the trial court erred in finding that the contract was breached for any of the aforementioned reasons. Further, he complains that the trial court failed to construe the lease provisions against the lessor as required by law.

LEASE CONSTRUCTION

It is well settled in Louisiana that any ambiguity in a. contract of lease will be construed against the lessor, since he had the power of stipulating in his own favor and neglected to do so. Martin v. Martin, 181 So. 63 (La.App. 1st Cir.1938); see also Tullier v. Tanson Enterprises, Inc., 367 So.2d 773 (La.1979). Therefore, any ambiguities in this lease should be interpreted against the plaintiff-lessor.

We note that the questioned ambiguity deals with the lease provision concerning royalty payments. However, we pretermit any discussions of whether the contract was breached for nonpayment of royalty payments or for insufficient accounting records. We do this because we agree with the trial court’s conclusion that defendant breached the lease by dumping construction debris on the leased premises.

BREACH OF CONTRACT

Defendant contends the trial court erred in concluding the contract was breached by his placing construction materials on the leased premises when there was no showing of any loss to plaintiff resulting therefrom.

An established law in Louisiana is that a lessee may not use the leased premises for a purpose inconsistent with that contemplated by the parties at the time they confected the lease. Tullier, supra; and Planiol, Civil Law Treatise, Vol. 2, No. 1691 (LSLA Translation, 1959).

The instant lease was confected for the operation of mining and removing marketable gravel, sand and sand-elay-gravel from the leased premises. Further, it prohibited the use of the leased premises for the transportation of any product from any land other than said premises.

It is undisputed that the defendant transported construction debris from other land onto the leased property and dumped it there. We agree with the trial court that this conduct resulted in a breach of the lease provisions.

The lessor and lessee have the right to contractually provide for dissolution of the lease in the event either party violates the terms thereof. La.C.C. art. 2729. Unlike the right to dissolve a lease for use of the premises for an unintended purpose under La.C.C. art. 2711, art. 2729 does not require a showing of actual damage. Accordingly, our courts have fully enforced the lessor’s right to dissolve the lease for actions prohibited by the contract of lease. Illinois Central Gulf Railroad Company v. International Harvester Company, 368 So.2d 1009 (La.1979), rehearing denied, April 9, 1979.

For the foregoing reasons, the judgment of the trial court is affirmed. Defendant is to pay all costs.

AFFIRMED.

COLE, Judge,

dissenting.

It was established by a clear preponderance of the evidence appellant, due to a bookkeeping error, overpaid appellee $12,-292.39 in lease royalties from June of 1981 to June of 1982. Appellee never contested this fact, leaving no real dispute as to the existence of the debt or its amount. Compensation took place as a matter of law extinguishing the lease payments due for the months of July and August, 1982. La. Civ.Code arts. 2207 et seq. Accordingly, appellant was not in default as regards timely payment of lease royalties.

Appellant contends:

“Frankly, the overpayment, is the fly in the ointment. Had B & B Gravel Company, Inc. and Raymond Heck never mentioned an overpayment, there would never have been a complaint inasmuch as all of the other complaints are totally irrelevant and unsubstantial in nature.”

The evidence validates this contention and, therefore, I respectfully dissent from the majority opinion.

      . The pertinent language of the lease is as follows:

      “The lessee, its agents, employees and assigns shall not use the leased premises for the transportation of any products of any kind from any land other than the leased premises described herein.”

      . The pertinent language of the lease is as follows:

      “That if during the term of this lease lessee should become bankrupt or cause any unreasonable delay, neglect or fail in any way to follow the terms and conditions of saidlease [sic] or to comply with any part thereof, then the lessor shall have the right and power, without any previous putting in default, to enter upon and take possession of the premises and may at once terminate this contract.”

      . Plaintiffs letter stated that defendant breached the lease in the following particulars:
      “1. The lease to you Was non-assignable and it has come to Mr. Bunch’s attention that a company known as B & B Gravel, Inc. is operating on his property;
      “2. You have operated under the lease in such a manner so as to damage existing fences and have operated illegally within the bounds of the campsite;
      “3. Mr. Bunch believes that you have failed to keep proper records in accordance with the rules and regulations of the severance tax division and otherwise have failed to comply with the severance tax laws;
      “4. Mr. Bunch was not paid for the months of July, August, and September nor was any type of accounting or itemization of the number of yards of sand and gravel provided to Mr. Bunch;
      “5. You have transported and deposited on Mr. Bunch’s land, refuse, debris and/or garbage;
      “6. You have failed to supply originals or copies of trip tickets on sand and gravel shipments.”

      . Id., footnote 1.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Daniel R. WINTERROWD, Plaintiff-Appellee, v. The TRAVELERS INDEMNITY COMPANY, et al., Defendants-Appellants.
    No. 15969-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 11, 1983.

      Gold, Little, Simon, Weems & Briser by Edward E. Rundell, Alexandria, for defendants-appellants.
    Hargrove, Guyton, Ramey & Barlow by Billy R. Pesnell and Joseph L. Shea, Jr., Shreveport, for plaintiff-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   MARVIN, Judge.

In deciding this motion to dismiss, as untimely, a suspensive appeal by one of the defendants from a judgment in a personal injury action, we consider the effect of a motion for JNOV on the delays for appeal. CCP Art. 1810.1, now 1811.

Such a motion to dismiss questions the jurisdiction of the appellate court and may be raised at any time, whether by the appellee or by the appellate court on its own motion. Anderson v. City of Baton Rouge, 381 So.2d 842 (La.App. 1st Cir.1980). See also Peters v. Life General Security Insurance Co., 392 So.2d 1054 (La.1981).

After a jury verdict, a judgment for $400,000 was signed in favor of plaintiff and against Rheem Manufacturing Co., Burl M. Boswell, and Travelers Indemnity Company, in solido, on May 13. Boswell and Travelers timely perfected a suspensive appeal. On May 20, Rheem moved for JNOV and alternatively for a new trial. The minutes of the district court state that the motion for new trial was denied on May 31. A judgment which was signed on June 1 states that the motion for new trial and the motion for JNOV were denied.

On July 1, 1983, Rheem filed with the clerk of the district court a motion for a suspensive appeal and a suspensive appeal bond for $960,000 in proper form and by a surety whose solvency and competency are not questioned. The order granting the appeal was not signed by a judge, however, until July 5, 1983.

If we determine that the 30-day delay for suspensive appeal began to run on the first day after May 31, the day the court heard the post judgment motions and denied the motion for new trial, the last day for filing a suspensive appeal would have been June 30, the day before Rheem filed its motion for appeal. If we determine that the delay began to run on the first day after June 1 when the judgment denying both motions was signed, we must then determine whether the rule of CCP Art. 2161 and Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La.1981) extends to the circumstances of this case. Traigle held that the filing of a motion for devolutive appeal with the clerk effected a timely appeal even though the order granting the appeal was untimely signed.

CCP Art. 2123, which sets forth the delays for appealing, expressly provides for the effect of the filing of a motion for new trial on the delays. The Legislature did not make similar provisions for the effect of a motion for JNOV. It has been consistently held that a pronouncement or verbal ruling by the trial court denying a motion for new trial triggers the delays for appeal. The entry or signing of an order or judgment to that effect is not necessary. Boyd v. Fourchon, Inc., 408 So.2d 380 (La.App. 1st Cir.1981); Reed’s Elec. Co. v. Royal Furniture Co., etc., 401 So.2d 416 (La.App. 1st Cir.1981) and cases cited therein. In this respect the appellee argues that a motion for JNOV affects appeals only if the motion is granted and that it is immaterial whether the motion for JNOV was denied on May 31 or on June 1 because the delays were triggered by the trial court’s denial of the motion for new trial on May 31.

At this juncture we observe that the Federal Rules of Civil Procedure provide for the effect of the filing of a motion for JNOV on the delays for appeals in the federal courts. FRCP Rule 59(b), FRAP Rule 4(a)(4). Notwithstanding the Louisiana legislature’s apparent oversight, we shall not further add to the incongruity presented by adopting appellee’s position. That position would require either or both of the parties seeking or opposing a motion for JNOV to perfect an appeal while the motion was yet pending to avoid the expiration of the delays for appeal. Such a situation would pose serious questions because of the limitations on the jurisdiction of the trial court to rule on a JNOV after perfection of an appeal and as to whether the denial of JNOV would be an “appealable” judgment. See CCP Arts. 1841, 2083, 2088.

Because the legislature has pronounced a policy that favors the right to appeal and has provided that an appeal should not be dismissed unless deficiencies in perfecting the appeal are imputable to the appellant, we shall equate, at least with respect to the effect on the delay for appealing, the motion for JNOV with the motion for a new trial.

The record before us does not contain a transcript of the hearing on the motion for JNOV and the motion for new trial which was held on May 31. The trial court’s minutes of that date show only that the court denied the motion for new trial, even though Rheem’s motion sought a new trial in the alternative to JNOV. The first record disposition of the motion for JNOV before us is the signed judgment of June 1. Under these circumstances, we shall hold that the delay for suspensive appeal did not begin running until the day after the judgment was signed and did not expire until July 1. See Pepitone v. State Farm Mut. Auto. Ins., 365 So.2d 1195 (La.App. 4th Cir.1979). We need not decide whether a signed judgment denying a motion for JNOV is necessary in all cases because here the signed judgment is the only disposition of the motion.

This holding does not answer whether or not the filing of the motion and the bond for suspensive appeal effected a timely appeal. In Traigle, supra, fn. 18, at p. 186, the court was quick to limit its holding to devol-utive appeals because the motion for an appeal alone is not sufficient for the perfection of a suspensive appeal. When the judgment is for a sum of money, the amount of the bond for suspensive appeal is fixed by law. CCP Art. 2124. Here the suspensive appeal bond in proper form and amount was filed along with the motion for appeal with the clerk of court on July 1. The trial court did not have discretion in determining the amount of the bond. We see no reason why the Traigle ruling should not extend to these circumstances. As in the case of a devolutive appeal in Traigle, the clerk of court is responsible for receiving these pleadings and obtaining the judge’s signature on the order for the appeal. CCP Art. 253. The delay in obtaining the signature on the order should not be imputable to the appellant. CCP Art. 2161. Traigle, supra.

At mover’s cost, the motion to dismiss Rheem’s suspensive appeal is denied.


author: AUGUSTINE, Judge.

text:
    James L. JEFFERS, Jr. v. Victoria P. HANSEN and Bonaparte's Retreat, Inc.
    No. CA-0355.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 18, 1983.
    See also, 441 So.2d 283.
    Bruce C. Waltzer, Fine, Waltzer & Bag-neris, James E. Swayngim, New Orleans, for petitioners-appellants.
    Anthony J. Milazzo, Jr., Kenner, James P. Screen, New Orleans, for defendants-appel-lees.
    Before AUGUSTINE, WARD and WILLIAMS, JJ.
   AUGUSTINE, Judge.

By formal motion to this court, Victoria P. Hansen and Bonaparte’s Retreat Inc. seek dismissal of an appeal filed against them by James L. Jeffers, Jr. The specific allegation is that appellant Jeffers waived his right of appeal by accepting from mov-ants the sum of $3,096.48 in satisfaction of judgment rendered by the trial court. We remanded the case for an evidentiary hearing to determine the circumstances under which appellant accepted payment, and whether appellant evinced an intent to abandon his appeal.

The trial court found that on December 27, 1982, appellant Jeffers telephoned Mr. James P. Screen, attorney for the appellees, and requested delivery of the money awarded to him by a trial court judgment of February 28, 1980. Later, when Jeffers arrived at Screen’s office to receive the money, the attorney asked him whether he was still represented by an attorney in the appeal now under consideration. Jeffers answered that he was not, whereupon Screen presented the requested checks and asked Jeffers to sign a motion to dismiss this appeal. Appellant refused to sign the dismissal, explaining in testimony at the evidentiary hearing that he tendered the dismissal back to Screen, saying that he “wasn’t going to sign (his) rights away”. Shortly afterward, Screen handed Jeffers photostatic copies of the trial court’s judgments of February 25, 1980 and February 28, 1980 (which amended the first). Upon these judgments were written: “Judgment Satisfied. Checks Received”. Jeffers signed the documents and left Screen’s office with the checks.

Screen had explained to Jeffers that acceptance of the checks would amount to a “satisfaction of judgment.” The full significance of that phrase, however, was not brought home to Jeffers, either by Screen or by another attorney who witnessed Jef-fers’ signing of the papers. Jeffers testified at the hearing that he did not know that by accepting the checks and signing the satisfaction of judgment, he would thereby abandon his appeal.

Article 2085 of the Louisiana Code of Civil Procedure provides:

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” (Emphasis added).

With respect to the above article, we think it is important to note that, although the trial court rejected the plaintiff’s claim for damage arising from the defendants’ alleged trespass and wrongful eviction, the court nevertheless granted plaintiff recovery of certain monies deposited with the defendants in connection with a contract for employment. Thus, it cannot be said that judgment was rendered wholly against the plaintiff. In such instances, it has been held that where a plaintiff is awarded judgment of money in an amount less than the sum originally prayed for, his acceptance of the full amount of the judgment from the party cast does not necessarily imply acquiescence in that part of the judgment which rejects the balance of the sum sued for. Glasper v. Wright Root Beer Co., Inc. 216 So.2d 586 (La.App. 1st Cir.1968); Foster & Glassel Co. v. Harrison, 173 La. 550, 138 So. 99 (1931); Succ. of Franz, 238 La. 608, 116 So.2d 267 (1959).

Moreover, appeals are favored in law. Acquiescence in a judgment is never presumed, and a motion to dismiss an appeal on these grounds can succeed only when the movant clearly demonstrates that the appellant intended to abandon litigation. Koerner & Lambert v. Allstate Insurance Co., 363 So.2d 546 (La.App. 4th Cir.1978); Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (1956).

The trial court found that Jeffers clearly did not intend to dismiss his appeal by signing the satisfaction of judgment and by accepting the tendered checks. With that finding we cannot argue. In light of plaintiff’s express refusal to sign the motion to dismiss only moments before, his testimony that he did not understand the legal implication of the words “judgment satisfied” must be accorded special Credibility-

Considering the foregoing, the appellee’s motion to dismiss the appeal is hereby denied.

MOTION DENIED.

      . Plaintiff-appellant is a former manager of the New Orleans bar known as Bonaparte’s Retreat, which is operated by the defendant-ap-pellee Bonaparte’s Retreat, Inc. Defendant-ap-pellee Victoria P. Hansen is the corporation’s secretary-treasurer.
      Plaintiffs suit arose out of Hansen’s seizing the bar and locking its doors to prevent continued management by Jeffers. It was Jeffers’ contention at trial, and now on appeal, that his contract for employment as manager of Bonaparte’s was in reality a lease of the premises occupied by the bar, and that Hansen’s seizure of the business therefore constituted trespass and wrongful eviction. The trial court awarded Jeffers the sum of $2,642.20, which represents the amounts plaintiff deposited with the defendant corporation pursuant to his managerial contract. Although the trial judge did not assign reasons for judgment, it is apparent to us that he rejected Jeffers’ claims of trespass and eviction, finding no lease, and that Jeffers’ recovery of the deposit money was allowed in order to return the parties to the positions they held prior to the making of their contract.


author: PER CURIAM.

text:
    STATE of Louisiana, Appellee, v. Jerry DILLEY, Appellant.
    No. 15215-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Patrick L. Durusau, Jena, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Don C. Burns, Dist. Atty., Columbia, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   PER CURIAM.

The defendant pled guilty to the charge of possession of marijuana with intent to distribute, a violation of LSA-R.S. 40:967 A(l), while reserving his right to appeal from the trial court’s adverse ruling previously rendered on his motion to suppress. He was sentenced to three years at hard labor, the execution of that sentence was suspended, and he was placed on five years supervised probation. As special conditions of his probation, the defendant was required to serve one year at the Ouachita Area Multi-Parish Prison, complying with all rules and regulations of that facility during his stay, to submit to drug screenings at intervals to be specified by his probation officer, and to enroll in a substance abuse program either while incarcerated, if possible, or, if not, upon his discharge from the Ouachita facility. After sentencing the defendant filed a motion for an appeal “... to appeal the denial by the trial court of his Motion to Suppress ... and to review his sentence. ... ” An appeal was granted.

The defendant perfected no assignments of error and no brief has been filed on behalf of the defendant. Even if the grounds stated in the motion for appeal were to be considered as assignments of error, they were not briefed or argued in this court and are considered abandoned. State v. Domingue, 298 So.2d 723 (La.1974); State v. Williams, 338 So.2d 672 (La.1976).

Consequently, this court’s review of this case is confined to an examination of the pleadings and proceedings for discoverable errors. LSA-C.Cr.P. Art. 920(2); State v. Oliveaux, 312 So.2d 337 (La.1975). Our examination of the record for discoverable errors in accordance with the considerations expressed in State v. Oliveaux, supra, reveals none. In particular, given the date of the commission of this offense, the bill of information filed in this case properly charges the defendant with an offense involving a Schedule II controlled dangerous substance. See Acts 1978, No. 725, §§ 2 and 3 and Acts 1981, No. 800, §§ 1 and 4, effective August 2, 1981. The defendant was afforded a full hearing on his motion to suppress. The court minutes reflect that the defendant was present in open court for arraignment and pled guilty after being properly “Boykinized.” A transcript of the sentencing hearing discloses full compliance by the trial court with LSA-C.Cr.P. Art. 894.1.

The defendant’s conviction and sentence are affirmed.

Affirmed.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Robert C. BROADWAY and Marvin Ray Douglas, Defendants.
    No. 15323-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      John S. Stephens, Coushatta, for defendants.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, William R. Jones, Dist. Atty., Cous-hatta, for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr., and NORRIS, JJ.
   JASPER E. JONES, Judge.

Robert Broadway and Marvin Douglas were indicted for aggravated rape. They were tried by a jury and found guilty as charged. They were sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La.R.S. 14:42. On appeal, defendants rely on five assignments of error for reversal of their convictions and sentences.

Assignment of Error # 1

Defendants contend the trial court erroneously allowed testimony of other crimes into evidence. The testimony to which they refer is the rape victim’s description of the events leading to her rape.

The rape victim, who was 14 years old at the time of these events, testified she was at home with her mother on the evening of February 18, 1982. At about dark, there was a knock on the door of their mobile home. It was Marvin Douglas, who worked for the victim’s stepfather on a farm. Douglas asked the mother for a ride home. She agreed and left to take him home in her pickup.

A short while later a vehicle pulled up to the trailer and there was a knock at the door. The victim, who was dressing for bed, was clad only in a T-shirt and panties. She looked out the window and saw it was her mother’s pickup that pulled up. Knowing the door was locked, she went to let her mother in. When she opened the door Douglas was standing there. She tried to slam the door but Douglas pushed his way in.

After Douglas pushed his way in, he pushed the victim to the floor, pulled off her panties, and started playing with her vagina. At this point, Broadway, who also worked for the victim’s stepfather, entered the trailer. He was intent on. burglarizing the trailer and managed to get Douglas to stop molesting the victim. Broadway then gagged the victim with socks and tied her hands with speaker wire from her stereo. The defendants then proceeded to burglarize the trailer. While this was going on, Broadway grabbed a steak knife and threatened to scalp the victim if she did not tell him where any money was. After the defendants took all they wanted, Douglas forced the victim, still wearing only a T-shirt, into the truck and she was driven to the rape site where the crime charged occurred.

Defendants argue that the portion of this testimony describing the events which occurred between the time Douglas pushed his way into the trailer and the time they arrived at the rape site is fraught with other crimes evidence and should not have been admitted. These events are part of the res gestae and the testimony was properly admitted.

The general rule is that the prosecution cannot introduce evidence of other criminal acts by the accused. This prohibition does not bar the admission of evidence of other criminal acts, which are an inseparable part of the whole deed. State v. Haarala, 398 So.2d 1093 (La.1981); State v. Belgard, 410 So.2d 720 (La.1982). Such acts are denominated as part of the res gestae and are admissible under the authority of La.R.S. 15:447 — 18. Admissible res gestae events are related to the charged offense to such an extent that the state could not accurately present its case without reference to them. State v. Haarala, supra.

The criminal acts included in the events leading to the rape were part of a continuous chain of events culminating in the rape. These events were inseparable from the rape itself and the state could not accurately present its case without reference to them.

This assignment of error lacks merit.

Assignment of Error # 2

Defendants contend the confessions given by each of them were not free and voluntary and should have been suppressed.

The defendants were captured in Natchi-toches Parish at about 7:30 a.m. on the morning following the rape. After a short stop in Coushatta, where defendants were booked by the Red River Parish Sheriff’s Office, they were taken to the Caddo Parish Sheriffs Office in Shreveport. While there, they each individually gave oral confessions to Investigator Ron Ashby. Ashby tape recorded the confessions. Broadway gave his confession at 10:28 a.m. and Douglas gave his at 11:15 a.m.

Defendants did not request a suppression hearing prior to trial. The trial judge held a suppression hearing during trial out of the presence of the jury. The tapes were played for the jury after the judge determined the confessions were freely and voluntarily given.

Defendants make several allegations to support their claim that the confessions were not free and voluntary. They allege they had not eaten or slept since the day previous to giving their confessions. They also contend they were intimidated by Ash-by’s holstered revolver, which he wore during their interrogation. They claim Ashby subjected them to threats and other verbal abuse. They further assert that each asked for the assistance of counsel before giving any statements and Ashby refused to honor their requests.

Before a confession can be introduced into evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, menaces, threats, inducements or promises. La.R.S. 15:451; La.C.Cr.P. 703. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Taylor, 422 So.2d 109 (La.1982); State v. Perry, 420 So.2d 139 (La.1982); State v. Sonnier, 379 So.2d 1336 (La.1979).

There is sufficient evidence in the record to support the trial court’s findings that defendants were not intimidated or coerced into making their statements and defendants did not request the assistance of counsel before making their statements. Each defendant signed a waiver of rights form. Ashby testified he in no way threatened or intimidated defendants and they did not request counsel. His testimony is supported by the taped confessions. Before allowing defendants to tell their story,-Ash-by asked them if he threatened, coerced or promised them anything. They answered no.

We find defendants’ allegation that they were intimidated into making their confessions because of Ashby’s holstered revolver is without merit. The fact the officer who took the confessions was armed does not render the otherwise free and voluntary confessions inadmissible. There was affirmative proof adduced that no threats were made against defendants and Ashby did not intimidate them in any other manner. See State v. Kennedy, 232 La. 755, 95 So.2d 301 (1957); State v. Holmes, 205 La. 730, 18 So.2d 40 (1944).

Defendants are apparently trying to set up a claim of duress by their contention they had not slept or eaten. We find any duress arising from these facts is not attributable to the law enforcement officers and cannot be used to invalidate the confessions. Defendants had only been in custody some 3-4 hours before they confessed. A good portion of that time was spent in transporting them to Coushatta and Shreveport. There was no testimony that Ashby was aware the defendants had not slept or eaten or that he took advantage of their hunger or lack of sleep in taking the confessions. We attribute defendants’ hunger and lack of sleep to their own voluntary actions in trying to elude the police the previous night. The defendants had committed the rape and became fugitives less than twelve hours before they were arrested. This self-imposed lack of food and sleep during this relatively short period of time cannot cause otherwise voluntary confessions to become involuntary.

This assignment of error lacks merit.

Assignment of Error # 3

Defendants contend that the trial court erred in denying their attorney’s motion to withdraw as counsel. The motion was not made until after the trial began. The grounds were that defendants did not trust and were dissatisfied with their appointed attorney. There were no allegations the attorney was incompetent or unprepared or that defendants were prejudiced by his legal service.

The federal and state constitutions provide the accused has the right to counsel of his own choosing to defend him on a criminal charge. U.S. Const.Amend. VI; La. Const. Art. 1, § 13. This right must be exercised at a reasonable time and cannot be manipulated to obstruct the orderly procedure in our courts or interfere with the fair administration of justice. State v. Lee, 364 So.2d 1024 (La.1978); State v. Lawson, 393 So.2d 1260 (La.1981). There is no constitutional right to make a new choice of counsel on the very day a criminal trial is to begin. State v. Leggett, 363 So.2d 434 (La.1978).

In this case the defendants did not state any particular reasons for wanting their attorney to withdraw. They merely alleged their general dissatisfaction with his services. Their motion was no more than a delaying tactic and the trial court committed no abuse of discretion by denying it.

This assignment of error has no merit.

Assignment of Error # 4

Defendants contend the trial court erred in denying their challenge for cause of prospective juror James Ivey. The court’s ruling forced them to use a peremptory challenge to keep Ivey off the jury panel. Defendants exhausted their peremptory challenges before completion of the panel and are therefore permitted to complain of the court’s action. La.C.Cr.P. 800.

It is well settled that the trial court has broad discretion in ruling on challenges for cause and his ruling will not be disturbed on appeal unless it is arbitrary or unreasonable. State v. Webb, 364 So.2d 984 (La.1978); State v. McIntyre, 381 So.2d 408 (La.1980), cert. denied 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90. Furthermore, a prospective juror can be rehabilitated if the court is satisfied he can render an impartial verdict according to the evidence and the instructions given by the court. See La.C.Cr.P. 797; State v. Webb, supra; State v. McIntyre, supra.

During voir dire, while being questioned by defendants’ counsel, Ivey indicated he would like to hear both sides of the story. He also indicated if the case was close he might be influenced by the fact that defendants’ counsel presented no evidence at all or made no argument on behalf of his clients. However, upon further interrogation by the court, Ivey stated he understood the presumption of innocence and he would follow the law as instructed by the court. He advised the trial judge he would follow his obligation as a juror to be fair and impartial even if the defendants presented no evidence.

This issue is controlled by State v. Shea, 421 So.2d 200 (La.1982) and State v. Frazier, 283 So.2d 261 (La.1973).

In She a the prospective juror indicated that he would expect the defendant to produce some evidence on his own behalf in order to find him not guilty. It was found that the trial court did not abuse its broad discretion in overruling the challenge for cause because the prospective juror told the court he could and would apply the law according to the court’s instructions although, “it would be kinda hard.” 421 So.2d at 205.

In Frazier the prospective juror stated his opinion would be affected by the defendants’ refusal to testify. It was held that the challenge for cause was properly refused because the prospective juror told the court he could render a fair and impartial verdict based on the evidence.

This assignment of error lacks merit.

Assignment of Error # 5

Defendants contend the trial court committed reversible error by refusing to grant their motion for mistrial during voir dire. While voir dire was being conducted there were four uniformed officers present in the courtroom stationed in close proximity to defendants. Defendants argue that the presence of the officers caused prejudice in the minds of the selected and prospective jurors by creating the implication that defendants were violent criminals.

The trial court is required to grant a mistrial and dismiss the jury, upon motion of the defendant, when prejudicial conduct in or outside of the courtroom makes it impossible for the defendant to obtain a fair trial. La.C.Cr.P. 775. A mistrial, however, is a drastic remedy warranted only when trial error results in substantial prejudice to the defendant, sufficient to deprive him of a fair trial. State v. Goods, 403 So.2d 1205 (La.1981); State v. Harris, 383 So.2d 1 (La.1980).

An accused may insist that he be brought into court with the appearance, dignity and self-respect of a free and innocent man. State v. Kinchen, 290 So.2d 860 (La.1974). He should not be brought before the court in any manner destructive of the presumption of innocence and of the dignity and impartiality of the judicial proceedings. State v. Wilkerson, 403 So.2d 652 (La.1981); State v. Clark, 340 So.2d 208 (La.1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782. The use of guards or other restraints inside the courtroom are matters within the sound discretion of the trial judge. State v. Tennant, 262 La. 941, 265 So.2d 230 (1972); State v. Burnette, 337 So.2d 1096 (La.1976). His ruling will not be disturbed on appeal absent a clear abuse of his discretion resulting in prejudice to the defendants. State v. Wilkerson, supra; State v. Tennant, supra.

The defendants were charged with a violent crime requiring a severe penalty upon conviction, which defendants ultimately received. There was no evidence defendants were handcuffed, shackled or in any other way restrained. Under these circumstances four guards were not too many to have in the courtroom to provide security during the trial of the two defendants.

We find no abuse of discretion by the trial judge in refusing to grant defendants’ motion. There was no prejudice to defendants. All of the jurors selected for trial indicated that they understood the presumption of innocence and could and would be fair and impartial.

This assignment of error has no merit.

The conviction and sentence of defendants Robert Broadway and Marvin Douglas are affirmed.

      . The rape occurred in Red River Parish. The victim was abducted in Caddo.

      . Defendants do not argue any Miranda issues other than the naked assertion that they requested counsel.

      . Defendants’ attorney did not make his objection until well into voir dire. 33 prospective jurors had already been questioned and 6 jurors had been chosen. While the trial judge refused to grant the motion, he did ask one of the officers to remove himself from inside the courtroom.


text:
    STATE of Louisiana, Appellee, v. Larry TURNER, Defendant.
    No. 15366-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.

      Caddo Parish Indigent Defender Office by William T. Giddens, Shreveport, for defendant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Howard Fish and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   JASPER E. JONES, Judge.

Defendant, Larry Turner, was charged by bill of information with attempted second degree murder in violation of La.R.S. 14:27 and 30.1. After a jury trial, the responsive verdict of guilty of attempted manslaughter was returned. La.R.S. 14:27 and 31. The defendant was then charged as an habitual offender and pled guilty. He was subsequently sentenced to 14½ years at hard labor under the provisions of the habitual offender statute, La.R.S. 15:529.1. Defendant appeals his conviction and sentence relying on two assignments of error.

Facts

On February 12, 1982 defendant was involved in a game of one-on-one basketball with Steve Robinson. During the course of the game, a fist fight occurred between the two. Defendant lost the fight. After the fight was over defendant returned home and armed himself with a pistol. He then returned to where the game was played and shot Robinson in the mouth.

Assignment of Error No. 1

This assignment of error stems from the trial court’s sustaining two objections by the state during defense counsel’s closing argument. Defendant alleges that the trial court erred in two respects. The first is that the objections were erroneously sustained.

At separate times during his closing argument defense counsel tried to show the jury placards containing language from the second degree murder statute, R.S. 14:30.1, and the manslaughter statute, R.S. 14:31. The placards quoted the statutes completely except for the penalty provisions.

The placard showing 14:30.1 contained the following language:

Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetuation or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

The placard showing 14:31 contained the following language:

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

The prosecution objected to counsel’s showing of both the placards because they contained law that was inapplicable to the case. The trial court sustained both objections.

Counsel is permitted to argue the law in closing argument. The scope of the argument, however, is limited to the law applicable to the case. See La.C.Cr.P. 774; State v. White, 399 So.2d 172 (La.1981); State v. Bretz, 394 So.2d 245 (La.1981); State v. Jenkins, 338 So.2d 276 (La.1976).

A specific intent to kill is an essential element of the crime of attempted second degree murder, and also of the responsive crime of attempted manslaughter. State v. Butler, 322 So.2d 189 (La.1975); State in the Interest of Hickerson, 411 So.2d 585 (La.App. 1st Cir.1982).

Because of the specific intent requirement 14:30.1(1) and 14:31(1) would each require substantial alterations in order for them to clearly state the specific intent to kill requirement. The portion of 14:30.1(1) which defines second degree murder as the killing of a human being when the offender has a specific intent to inflict great bodily harm would have to be eliminated. The first part of 14:31(1) which provides “A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder),” would have to be changed to read “A homicide which occurred when the defendant had the specific intent to kill.” The provisions of 14:30.1(2) and 14:31(2) are totally inapplicable to this case.

Counsel for appellant made no effort to alter the placards so they would correctly state law applicable to the case. The trial judge properly sustained the state’s objection to the statements of law on the placards in the form in which they were presented. Immediately after the objection was sustained defendant’s counsel was permitted to orally argue the applicable portions of each statute and therefore he was not denied his right to argue the applicable law to the jury.

Defendant next argues that the trial judge addressed defense counsel in a prejudicial manner when he sustained the objections. Defendant contends that the judge’s tone of voice impugned counsel’s dignity and prejudiced the jury against defendant. A tape recording of both incidents was preserved for this court to review on appeal.

In our legal system the judge holds a position of honor and esteem. Because of his position, a judge should always strive toward the highest standard of conduct. He should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Code of Judicial Conduct, Canon 2 A; State v. Wimberly, 414 So.2d 666 (La.1982). Furthermore, a judge should be patient, dignified, and courteous to the lawyers with whom he deals in his official capacity. Code of Judicial Conduct, Canon 3 A(3).

Though the judge strives to maintain these standards he is, nevertheless, still human and is subject to the entire range of human emotions and shortcomings. Even the best of judges may occasionally become aggravated during the course of a trial. The tape of the incidents about which defendant complains reveals that the trial judge became somewhat aggravated and impatient with defense counsel for attempting to show the placards to the jury. While the trial judge’s voice may have been somewhat sharp and impatient, it was neither overloud nor sarcastic. The statements made were not vindictive and cannot be construed as impolite under the circumstances in which they were made.

Even though the trial judge may have shown impatience with defense counsel, his remarks and tone of voice do not warrant reversal of defendant’s conviction. A verdict will not be set aside because of improper remarks by the judge unless the reviewing court is thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Gallow, 338 So.2d 920 (La.1976); State v. Hammler, 312 So.2d 306 (La.1975); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965).

We are far from convinced the jury was influenced by the court’s remarks or that they contributed to the verdict. Defendant was convicted for a lesser offense than the one charged even though the evidence would have supported a conviction for the greater offense. Defendant contends that he may have been acquitted altogether if it had not been for the court’s conduct. In light of the overwhelming evidence against defendant, this contention is entitled to no consideration. We find Assignment of Error No. 1 without merit.

Assignment of Error No. 2

Defendant contends his sentence is excessive. Defendant faced a maximum possible sentence of 21 years. The 14½ year sentence he actually received was substantially less than the possible maximum.

A sentence is excessive if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Guiden, 399 So.2d 194 (La.1981). The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Feeback, 414 So.2d 1229 (La.1982); State v. Howard, 414 So.2d 1210 (La.1982); State v. Bing, 410 So.2d 227 (La.1982).

The sentencing judge is provided with a list of factors to which he should accord weight when imposing a sentence. La.C.Cr.P. 894.1. When the sentencing judge considers all the 894.1 factors and states them for the record before imposing the sentence, the determinative inquiry is: did the sentencing judge commit a manifest abuse of his wide discretion in imposing the sentence on defendant. State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983), writ den. 435 So.2d 438 (La.1983).

The trial court thoroughly explored all of the 894.1 factors, both aggravating and mitigating, before imposing the sentence. Defendant’s complaint is that the court did not accord enough weight to the mitigating factors and he accorded too much weight to the aggravating factors.

We find no abuse of the trial court’s discretion in imposing the sentence; His conclusions are supported by sound reasoning with which we agree. The serious nature of the instant offense together with the fact that defendant committed the offense while on probation for another felony, far outweigh any of the mitigating factors suggested by defendant.

This assignment of error lacks merit.

Defendant’s conviction and sentence are AFFIRMED.

      . These are the remarks made by the trial judge as he sustained the objections:
      “MR. FISH: Objection, Your Honor. I believe Mr. Giddens is showing a statute with the law that is not applicable to this case.
      THE COURT: Remove that document, please. That does not state the law. Remove it this minute.
      MR. GIDDENS: I apologize.
      THE COURT: The jury is now instructed and admonished to disregard anything you may have read on the placard that Mr. Gid-dens was showing to you. That does not express the law of the State of Louisiana. I’ll instruct you on the law, ladies and gentlemen. What Mr. Giddens may argue to you is strictly his argument. I will instruct you on what the law of the state is. That’s my obligation during the course of the trial.
      MR. GIDDENS: ... Manslaughter—Excuse me. This should be attempted manslaughter. Attempted manslaughter is, again, required if one has—
      MR. FISH: Objection, Your Honor. Mr. Giddens is showing the jury law that is not applicable to this case.
      THE COURT: I’m going to, I believe, to ask the jurors to leave the room, unless, Mr. Giddens, you would agree not to use a placard that does not contain law that is applicable to this case. The State’s objection is noted and sustained. Please avoid that, Mr. Giddens. That’s two, you don’t get number three.
      MR. GIDDENS: Yes, Your Honor. The reason why the prosecutor had objected to me doing this—
      THE COURT: Excuse me, Mr. Giddens. I’ve made my ruling. It requires no further comment by counsel. I instructed the jury to disregard anything they have have (sic) read on the placard that was just demonstrated. I will instruct them on what the law is in this case that they may consider. Arguments by counsel are allowed under the law, but I’m the one that’s charged by law with instructing them with regard to the law. Please note that accordingly. Please proceed.”

      . The court’s aggravation is understandable. On the day before closing arguments were given counsel was provided with a copy of the proposed jury charges and did not object to any of the charges. He knew what law was applicable to the case before he attempted to show the placards containing inapplicable law.

      . Defendant could have received IOV2 years on just the attempted manslaughter conviction. La.R.S. 14:31 and 14:27 D(3). This sentence could be doubled to 21 years because the conviction was defendant’s second felony conviction. La.R.S. 15:529.1 A(1).


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Dennis JOHNSON, Appellant.
    No. 15471-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.

      Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Bir-dia M. Greer and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   NORRIS, Judge.

Defendant, Dennis Johnson, appeals a jury conviction of attempted simple burglary [La.R.S. 14:62;27], and a resulting sentence of five years imprisonment at hard labor assigning the following errors:

(1) The trial court erred in overruling defendant’s objection to the relevancy of testimony by Officer jerry Johnson about the details (attempt to wreck police unit and scuffle) of the chase and arrest of defendant following the commission of the alleged offense;
(2) The trial court erred in overruling defendant’s objection to the relevancy of testimony by Officer Ralph Montgomery about the details (running other vehicle off road and attempt to wreck police unit) of the chase and arrest of defendant following the commission of the alleged offense;
(3) The trial court erred in denying defendant’s motion for a mistrial which was based upon Officer Pat McGaha’s impermissible reference to other crimes;
(4) The trial court erred in sustaining the State’s objection to defendant’s attempt to question Officer Pat McGaha about the State’s failure to extradite defendant from the State of Texas; and
(5) The trial court erred in imposing an excessive sentence.

CONTEXT FACTS

At approximately 11:30 p.m. on June 26, 1980, while on regular patrol in Shreveport, two police officers in a marked unit passed the Williams Equipment Company. As they passed this business, one of the officers noticed a white van with its headlights off pulling from behind the business and turning West on Highway 80. Because the business was closed, the officers became suspicious and made a U-turn and proceeded to follow the van in a westerly direction. When the unit approached the rear of the van, its flashing lights were turned on after which the van increased its speed to 85 miles per hour. Thereafter, the siren was turned on and a high speed pursuit continued during which the van disregarded traffic signals and intersectional signs. During the chase which covered some 40 miles and continued into Texas, the van’s driver on different occasions attempted to cause the police unit to wreck either by slamming on the brakes and sliding toward the unit or by swerving into its path.

After several attempts, the officer who was the passenger in the unit was able to shoot out a van tire causing it to halt in a ditch near Scottsville, Texas. After a scuffle with the officers, the defendant was apprehended and arrested by Texas authorities. When he refused extradition from Texas, the defendant was released and later arrested in Bossier Parish for the instant offense.

The van was towed back to Shreveport and impounded. Found within it were a bolt cutter, a sledge hammer, a short crow bar and two long crow bars. When arrested, the defendant was wearing a pair of leather work gloves. All of these items were admitted into evidence.

After the pursuing officers returned from Texas, they went to Williams Equipment Company where they observed that a chain lock on a gate to the business had been cut through and replaced on the gate. When they went to the rear of the building, they observed scratch and pry marks on its rear door.

While the officers were in pursuit of the van driven by the defendant, Williams’ manager was called at home by the Shreveport Alarm Company and informed that the alarm system had been activated. He proceeded to the premises about midnight where he found the back door open. Being of the opinion that an employee had failed to secure the door, he made no examination of the door or premises but simply replaced a screwdriver in the hasp and keeper on the door and returned home. About one and one-half hours later, he was called by the police. Upon his return, he then observed the chain cut on the gate which is always kept locked and marks on the inside door facing which clearly revealed that it had been pried open.

Based on this evidence, the defendant was convicted of attempted simple burglary.

ASSIGNMENTS OF ERROR NOS. 1 and 2

In connection with this assignment of error, defendant argues that the trial court erred in overruling objections to certain aspects of the testimony of the two police officers regarding the details of the pursuit and resulting apprehension of defendant. It is noteworthy that only certain aspects of these events were objected to at trial, namely, the defendant’s attempts to wreck the police unit and the scuffle with the police incident to the actual apprehension. Defendant’s position on appeal is that the testimony sought to be excluded is irrelevant because there was no showing of a relationship between these activities and any attempted simple burglary.

To be admissible in a criminal proceeding, evidence must be relevant to a material issue. La.R.S. 15:435. Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negate the commission of the offense and the intent. La.R.S. 15:441. Furthermore the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed, on appeal in the absence of a clear showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981).

While the rule is that evidence of other criminal acts is inadmissible to show that the defendant is a bad person thereby making it more likely that he committed the instant offense [State v. Belgard, 410 So.2d 720 (La.1982)], the general prohibition does not bar admission of criminal acts which are an inseparable part of the whole deed; that is, acts which form part of the res gestae. State v. Haarala, 398 So.2d 1093 (La.1981). The purpose of such evidence is to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. State v. Haarala, supra.

It is obvious that the defendant’s actions formed one continuous transaction and as such constituted part of the res gestae of the offense charged. La.R.S. 15:448. The res gestae doctrine in Louisiana includes not only spontaneous utterances and declarations made before and after the commission of a crime but also includes testimony of police officers and witnesses pertaining to what they heard or observed before, during and after the commission of the crime if the continuous chain of events is evident under the circumstances. La.R.S. 15:447; 448; State v. Molinario, 383 So.2d 345 (La.1980). The admission of such evidence is allowed when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. State v. Haarala, supra. All of these circumstances are present in the instant case. What forms any part of the res gestae is always admissible in evidence. La.R.S. 15:447; State v. Miles, supra; State v. Matthews, 354 So.2d 552 (La.1978).

Furthermore, the defendant’s flight from the scene and his actions attendant thereto were certainly relevant to show his consciousness of guilt. Under the particular facts of this case which is based on circumstantial evidence, the probative value of this evidence outweighed any prejudicial effect. State v. Molinario, supra.

Hence, the trial judge did not err in permitting the introduction of this evidence, and this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant argues that the trial court erred in denying a motion for mistrial based upon a police officer’s impermissible reference to other crimes. The testimony complained of arose when Detective Pat Mag-aha was called to testify on behalf of the state. During his testimony, this colloquy occurred:

[BY ASSISTANT DISTRICT ATTORNEY]
Q. Officer, you’re a detective with the Shreveport Police Department?
A. Yes.
Q. Did you have occasion to become involved in the investigation of the alleged attempted simple burglary of the Williams Equipment Company?
A. Yes, sir, I did.
Q. Do you know that there was an arrest effected in that case?
A. Yes, sir, there was an arrest.
Q. And was the person identified?
A. Yes, sir, he was.
[DEFENSE COUNSEL] Your Hon- or, I have to object to this area of relevancy unless — and also on the basis of hearsay — unléss this officer was personally involved in the arrest.
[THE COURT] Sustained.
[BY ASSISTANT DISTRICT ATTORNEY]
Q. Officer, were you personally involved in the arrest of the defendant?
A. No, sir, I wasn’t, not at his first arrest.
[Bracketed material substituted.]

Thereafter, defense counsel objected and the jury was removed. The motion for mistrial followed based on the assertion that the answer implied that there was other arrests in which the witness was involved which were prejudicial to the defendant. The State responded that the answer was prompted by the earlier defense objection after which the court questioned the witness regarding the arrest to which he was referring. The witness explained that he did not participate in the original arrest of the defendant in Bossier, both arrests involving the same offense. The court found specifically that the witness was referring to the same case and denied the motion. Defense counsel was informed that he had a right to bring out this fact on cross examination. The defense did not request any admonition or explanation to the jury nor did it even cross examine this particular witness.

A direct or indirect reference to another crime committed or alleged to have been committed by the defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney or a court official during trial or in argument would require a mistrial on motion of defendant. La.C.Cr.P. Art. 770(2). However, a police officer is not a court official; therefore Article 770 does not apply. Rather, the only article which might arguably apply to the instant situation is La.C.Cr.P. Art. 771; State v. Perry, 420 So.2d 139 (La.1982); State v. Smith, 418 So.2d 515 (La.1982). Mistrial under that article is'at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. Moreover, mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result. State v. Smith, supra.

In the first place, the isolated remark of the officer regarding the arrest is not so significant or indicative of another crime that a mistrial should have been ordered even if it is considered to be an impermissible reference. Further, there is no evidence that the remark was deliberately obtained by design of the prosecutor to prejudice the rights of the defendant. State v. Lewis, 353 So.2d 703 (La.1977). Not only does the answer not necessarily lead to the assumption that another crime was referred to; in fact, it could be construed to and did relate to an arrest in connection with this particular crime. Thus, such a reference was properly admissible. Moreover, even if the reference had been improper, it would have been cured by an admonition or explanation had the defendant requested one. La.C.Cr.P. Art. 771. Finally and most importantly, had the defense been unduly concerned about the prejudice caused by the reference, the entire matter could have been cleared up on cross examination during which it would have been revealed to the jury that the arrest referred to was the initial arrest in connection with this crime. The defendant chose to not pursue this explanation.

Clearly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant next complains that it was error for the trial court to disallow testimony concerning the state’s failure to extradite the defendant from Texas. Detective McGaha was called on direct examination by the defense and asked whether he had participated in some subsequent investigation in connection with this matter. The state objected and the jury was removed. Defense counsel then explained that against the advice of counsel the defendant wished to have explored the limited area of the state’s failure to extradite the defendant from Texas in connection with this offense. The court inquired whether counsel could inform it of the relevance of this line of questioning. Counsel responded that he had no independent basis on which to inform the court of any relevancy pertaining to the guilt or innocence of the defendant. The court sustained the state’s objection.

By brief, it is now argued for the first time that this line of questioning was attempting to establish that a warrant was not issued for this defendant’s arrest in connection with the attempted burglary charge and that there was no attempt to pursue extradition from Texas. It is contended that these circumstances tend to mitigate the defendant’s guilt and should have been allowed into evidence. This is the only showing made regarding the relevance of this inquiry.

Because relevant evidence is that which tends to show the commission of the offense and the intent or that which tends to negate the commission of the offense and the intent, the trial court was correct in its ruling that the evidence sought to be admitted was irrelevant. On the showing made, there was nothing contained within this testimony which would have been relevant to guilt or innocence.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

Finally, defendant complains that the sentence of five years at hard labor is excessive. The thrust of defendant’s argument in this regard seems to be that the trial judge did not adequately consider the mitigating factors which would have weighed in favor of a lesser sentence.

Article I, § 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence is within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). In imposing sentence, a trial judge must comply with the mandatory requirements of La.C.Cr.P. Art. 894.1 and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Jones, 381 So.2d 416 (La.1980). However, this article does not require that the trial judge set forth for the record all the factors listed in the statute which were accorded weight by him in determining to impose a sentence of imprisonment. State v. Jacobs, 383 So.2d 342 (La.1980). It is sufficient that the record reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979).

The trial judge adequately complied with Article 894.1. He specifically noted that the defendant does not qualify for probation or a suspended sentence and stated that even if he did qualify he would be a poor candidate because of his extensive criminal activity. Our review of the pre-sentence reveals three previous felony convictions and numerous misdemeanor convictions as well as a juvenile record. The trial judge attached great weight to the defendant’s propensity to commit crimes. Based on the record before us we are compelled to conclude that because of the defendant’s extensive criminal activity as a juvenile, before the commission of the instant offense, immediately after the commission of the instant offense and between the commission of and the arrest for the instant offense, the trial judge did not err in the weight which it attached to this consideration. In reality, the mere fact that the defendant did not receive the maximum sentence in light of the circumstances surrounding this defendant and this offense indicates that the trial judge found some mitigating factors to be present. However, there are no mitigating factors present which weigh in favor of a lesser sentence than the one imposed.

This assignment of error is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . La.R.S. 15:441 states:
      Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
      Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

      . La.R.S. 15:448 states:
      To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

      .La.R.S. 15:447 states:
      Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.

      . La.C.Cr.P. Art. 771 states:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.


text:
    STATE of Louisiana, Appellee, v. Michael W. EDWARDS, Appellant.
    No. 15477-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Jones, Jones & Jones by Charles D. Jones, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Earl Cox, Asst. Dist. Atty., for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and PRICE, JJ.
   JASPER E. JONES, Judge.

Appellant’s probation was revoked after a revocation hearing and he was ordered to serve the two year jail term which was suspended when he was placed on probation. He appeals the lower court’s ruling on the grounds an admission he made to a probation officer about a violation of one of the conditions of his probation was improperly admitted into evidence. We affirm.

One of the conditions of appellant’s probation required him to refrain from using illegal drugs. He was also ordered to undergo periodic testing for the presence of any drugs in his system. After two of the tests revealed the presence of THC in appellant’s system, which indicated the use of marijuana, his probation officer, Edward Gray, contacted him concerning the test results. Appellant appeared at Gray’s office on October 15, 1982. Gray was busy when appellant arrived and for this reason Gray’s supervisor, Audie Edwards, discussed the matter with appellant.

Edwards questioned appellant about his drug usage without warning him of his Miranda rights. Appellant admitted he smoked marijuana before one of the tests. Appellant was then taken back to Gray’s office where he repeated his admission.

A formal motion to revoke appellant’s probation was filed by the state on November 8, 1982. The revocation hearing was held November 29, 1982. Audie Edwards testified at the hearing to the admission made by appellant without the benefit of Miranda warnings. Appellant contends that Edwards’ testimony was erroneously admitted because two of the procedural safeguards guaranteed an accused were lacking when he was questioned by Edwards.

Assignment of Error No. 1

Appellant contends a probation officer should be required to advise a probationer of his Miranda rights before questioning him about possible violations of the conditions of his probation. This contention is untenable. A probationer’s admissions to a probation officer are admissible at a.revocation hearing in spite of the absence of Miranda warnings. The Miranda rule has not been extended to probation hearings. State v. Lassai, 366 So.2d 1389 (La.1978). See also United States v. Johnson, 455 F.2d 932 (5th Cir.1972), cert. den. 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101.

Appellant, nevertheless, claims that this issue is controlled by Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1982). There it was held that statements made by the defendant to a court appointed psychiatrist during an examination to determine defendant’s future dangerousness were inadmissible at the penalty phase of defendant’s trial where the statements were made without the benefit of Miranda warnings.

We find Estelle to be inapposite to the situation presented here. In Estelle the court emphasizes that its holding is limited to psychiatric examinations ordered by the court when the examinee is in custody following the initiation of prosecution after which the defendant must be represented by counsel. The revocation of a parole or revocation of probation is not part of a criminal prosecution, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, and all rights due defendants in criminal prosecutions are not applicable to such proceedings.

This assignment of error is without merit.

Assignment of Error No. 2

Appellant contends a probationer is entitled to counsel at a conference called by a probation officer for the purpose of discussing suspected violations of the conditions of probation.

The leading U.S. Supreme Court decision on when the right to counsel attaches in criminal prosecutions is Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The rule there announced is that the right to counsel does not attach until after the initiation of adversary judicial proceedings, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417. Louisiana follows this rule. See State v. Bourgeois, 388 So.2d 359 (La.1980); State v. McDonald, 387 So.2d 1116 (La.1980).

The revocation of probation is not a criminal prosecution. Morrissey, supra; Gagnon, supra. The defendant in a probation revocation proceeding is not always entitled to counsel. His right to counsel only exists when due process requires that he be represented. Due process requires he be represented when the complexities of the issues involved in the revocation proceedings mandate assistance of counsel to assure fundamental fairness at the revocation hearing. When due process requires counsel the defendant must be advised of his right to counsel, and in the event he then requests an attorney, one must be appointed to represent him at the revocation hearing. Gagnon, supra. The appellant was represented by his employed attorney at the hearing. There is no requirement that a defendant be represented by an attorney before a determination is made to commence revocation proceedings.

This assignment of error is without merit.

For the foregoing reasons the ruling of the trial court revoking appellant’s probation and ordering him to serve the two year jail sentence from his prior conviction is AFFIRMED.

      . Appellant was convicted of possession of a controlled dangerous substance on December 16, 1981. He was sentenced to two years in jail. The sentence was suspended and appellant was placed on three years supervised probation.

      . On this occasion Miranda warnings were given to appellant. Because of our disposition of the case, we need not consider the effect the second admission with warnings had on the first admission without warnings.

      . In Estelle the defendant was convicted of murder in Texas. Texas, similar to Louisiana, requires a bifurcated trial in capítol cases. A separate trial is held for sentencing. One of the issues in the sentencing phase is defendant’s future dangerousness.


author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Carlton J. GREEN, Appellant.
    No. 15548-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Steven R. Thomas, Mansfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Gretna, for appellee.
    Before HALL, FRED W. JONES, Jr., and NORRIS, JJ.
   HALL, Judge.

The defendant, an 18-year-old first offender, appeals from the imposition of a sentence of seven years at hard labor for the commission of forgery in violation of LSA-R.S. 14:72, contending that the sentence imposed constitutes excessive punishment in contravention of Article 1, § 20 of the Louisiana Constitution and that the trial judge improperly considered the defendant’s alleged involvement in an attempted armed robbery in imposing sentence. We agree with the defendant’s contentions and remand this case for resentencing.

From August 3, 1982 to August 14, 1982, the defendant forged five checks drawn on the First National Bank, Stonewall office, in DeSoto Parish, in the amounts of $125, $100, $150, $125, and $75. He was subsequently indicted by a DeSoto Parish grand jury on five counts of forgery arising from those transactions. Pursuant to a plea bargain agreement, the defendant pled guilty to one count of forgery in exchange for the state’s promise not to prosecute him on the remaining four counts. Thereafter, the defendant was sentenced to seven years of confinement at hard labor and timely perfected this appeal.

The pre-sentence investigation report dwells extensively on the defendant’s alleged involvement in an attempted armed robbery. In imposing sentence, the trial judge stated that although it appeared the defendant would not be convicted for his involvement in the attempted robbery the court was not satisfied that the defendant was not involved, and the court considered the probation officer’s statement that the defendant was an accomplice in that crime as not being “totally erroneous.” Consideration of the defendant’s alleged involvement in the attempted robbery was plainly the primary reason why the trial court imposed a near maximum sentence for the forgery offense to which the defendant pled guilty.

The defendant’s contention that the trial judge erred in improperly considering the defendant’s alleged involvement in an attempted armed robbery in imposing sentence is correct. While the trial judge may properly consider evidence of other offenses in determining sentence, such consideration is proper only in the presence of a showing that the defendant perpetrated those other offenses. See State v. Ray, 428 So.2d 1116 (La.1982). Contrast with State v. Knapp, 378 So.2d 911 (La.1979); State v. Hatter, 338 So.2d 100 (La.1976); State v. Pierson, 296 So.2d 324 (La.1974); and State v. Roberts, 427 So.2d 1300 (La.App.2d Cir.1983), in which the consideration of other offenses in imposing sentence was properly founded upon a sufficient showing that the defendant was the perpetrator. Since no such showing exists in this case, the trial judge’s consideration of the defendant as an accomplice in the attempted armed robbery was improper.

On August 16, 1982, Andre Herrin attempted an armed robbery of the Wag-A-Bag # 1 in Mansfield. Herrin was wounded by the store owner during the confrontation and later died. Although the defendant was indicted by a DeSoto Parish grand jury in connection with the attempted armed robbery, that charge against the defendant was subsequently dismissed by the district attorney’s office due to a lack of evidence. That charge was not dismissed, as the officer who prepared the pre-sentence investigation report erroneously thought, as a part of the plea bargain agreement perfected in this case.

At most, the evidence presented at the sentencing hearing establishes only that the defendant accompanied Herrin to the Wag-A-Bag store on the night of August 16 at Herrin’s request, and that the defendant immediately left the scene upon being advised by Herrin that he planned to rob the store. A polygraph examination of the defendant conducted by a Mansfield city police officer reflected that the defendant was truthful in his account of how the incident happened. Although the defendant is alleged to have confessed to his involvement in the attempted armed robbery, no written or recorded confession by the defendant was ever produced. Furthermore, those officers alleged to have heard the defendant’s confession did not testify at the sentencing hearing. The record reflects that the lack of a confession by the defendant and the indication by the polygraph examination that the defendant was truthful in his account of the incident were the reasons for the dismissal of the attempted armed robbery charge against the defendant. The defendant denied any involvement in the attempted armed robbery and was never identified as a perpetrator of that offense.

Certainly, the fact that the defendant accompanied the perpetrator, who had a sawed-off rifle, to the store raises substantial suspicion of his involvement in that crime, but mere suspicion of implication in another offense is not sufficient to warrant consideration of the other offense as a major factor in imposing sentence for the unrelated offense to which the defendant pled guilty. Under these circumstances, the trial judge erred in considering evidence of the defendant’s alleged involvement in the attempted armed robbery in imposing sentence.

Furthermore, in the absence of the improperly considered evidence, the remaining facts of this case will not support the seven-year sentence imposed. The defendant was 17 years old at the time of the offense and 18 years old at the time of sentencing. He had no prior record of criminal activity and had a fairly stable employment history given his young age, his lack of a high school diploma, and the fragmented and transient nature of his homelife. Considering not only that forgery count to which the defendant pled guilty but also those forgery counts dismissed in accordance with the plea bargain, the amount of money involved in this case totals $575. All of the forged instruments were executed in a 12-day period as opposed to a longer time frame which would tend to indicate a more persistent and permanent course of criminal conduct by the defendant. The First National Bank indicated that they suffered no discernible loss as a result of the defendant’s actions.

Once the improper consideration of the attempted armed robbery is removed because there is no factual basis therefor, the punishment in this case becomes excessive. Consequently, it is appropriate that we remand this case to the district court so that the trial judge may exercise his informed discretion in the imposition of a more appropriate sentence, after excluding any consideration of defendant’s alleged involvement in the attempted armed robbery. Due consideration should be given to the factors enumerated in LSA-C.Cr.P. Art. 894.1, A. and B., and the court should state for the record the considerations taken into account and the factual basis therefor in imposing sentence as required by 894.1 C.

The defendant’s conviction is affirmed. However, the sentence imposed is vacated and set aside and the case is remanded to the district court for resentencing.


text:
    STATE of Louisiana, Appellee, v. Curtis A. WALTON, Appellant.
    No. 15557-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Writ Denied Jan. 6, 1984.

      Steven R. Thomas, Mansfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Gretna, for appellee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant, Curtis A. Walton, pled guilty to a charge of simple robbery in violation of La.R.S. 14:65. After a sentencing hearing, he was sentenced to serve seven years at hard labor. He appeals his sentence.

He relies on three assignments of error.

Assignment # 1

The defendant contends he should have received probation rather than a prison sentence. The defendant had several prior felony convictions and he could not have been placed on probation. C.Cr.P. art. 893, State v. Wimberly, 414 So.2d 666 (La. 1982). This assignment of error is without merit.

Assignment # 3.

In Assignment of Error # 3 the defendant contends the trial judge erroneously denied his oral motion for a continuance of the sentencing hearing which he made at the time of the hearing. He sought the continuance in order to secure the presence of Mr. Sweat, the probation officer who had prepared the pre-sentence report. This report showed that the defendant had a prior aggravated battery conviction. Defendant contends that he intended to use the testimony of Mr. Sweat to attempt to show that the defendant had no prior aggravated battery conviction. We note that the defendant does not state that Mr. Sweat would testify that the PSI report was incorrect when it stated that the defendant had a prior conviction for aggravated battery.

The record shows that a copy of the pre-sentence report was mailed to defense counsel on January 12, 1983. The letter of transmittal advised that the defendant would be sentenced on January 31,1983 and further stated:

“If you and/or the defendant in this case desire either to attempt to traverse any of the information or statements in the enclosed report; or, to present any evidence pertaining to the sentence to be imposed on the defendant in this case, you or the defendant shall have an opportunity to do so, contradictorily, with the District Attorney, on January 31, 1983.”

In addition to this letter, the defendant through his attorney was formally served on January 13, 1983 by a deputy sheriff with a notice that a copy of the pre-sen-tence report had been provided for counsel and that sentence would be imposed on January 31, 1983. This notice further advised the defendant that on this date he would be given an opportunity to traverse the PSI report and to present any other evidence he desired pertaining to his sentence.

Even though these notices were given seventeen days before the sentencing hearing was held the defendant did not subpoena Mr. Sweat to assure his presence at the hearing.

Where there is ample time to locate and subpoena a witness it is not error for the trial court to deny a party’s motion for a continuance in order to obtain the witness. State v. Bernard, 358 So.2d 1268 (La.1978). See also C.Cr.P. art. 709. The record reflects that defendant’s counsel was in contact with Mr. Sweat and had subpoenaed him for other hearings that were held on January 31, 1983 and that Mr. Sweat was present in court on this day but he wasn’t present when defendant’s case was reached.

The trial judge did not commit error when he denied defendant’s motion for continuance.

Assignment of Error # 2

On the PSI report there was included within the list of prior offenses of which the defendant had been convicted the following:

“1-30-80 Coushatta, La. 6 counts Simple Cr. Dmg to Property — 6-9-80. 2 yrs LA DOC CC with each & parole violation.
1-30-80 Coushatta, La. Agg. Battery— 6-9-80 2 yrs La Doc, CC with each other and parole violation.”

The defendant in this assignment complains the sentence was excessive because the trial judge erroneously considered the prior conviction of aggravated battery reflected in the pre-sentence report. He contends he did not have the aggravated battery conviction.

The trial judge may rely upon the report provided the defendant is not denied an opportunity to prove the report erroneous. State v. Hatter, 338 So.2d 100 (La.1976). Where there is a showing made that the pre-sentence report contains material and prejudicial false information the sentence will be vacated and the case will be remanded for resentencing. State v. Owens, 377 So.2d 316 (La.1979).

As we pointed out in our discussion of . Assignment # 3 the defendant was given a copy of the pre-sentence investigation well in advance of the sentencing hearing and had every reasonable opportunity to show that it contained false and prejudicial information.

The defendant testified at the hearing that he did not know the meaning of aggravated battery. He denied he had ever struck anyone but acknowledged that he was charged with aggravated battery. He stated “That’s just a charge they put on.”

In response to questions by the court he testified:

“The Court: Can you get to the specific facts. Did you take a sledge hammer and destroy approximately $15,000 in equipment at Tom’s Timber Company sawmill in Coushatta and throw an object at another person. Were you convicted of that.
The Defendant: I was but some of that I didn’t do.
The Court: But you were convicted and sentenced?
The Defendant: Yes sir.”

At another point in the defendant’s testimony he denied that he pled guilty to aggravated battery and stated he only pled guilty to a charge of simple damage to property.

At the time the defendant was involved in the sawmill incident referred to by the trial judge he was on parole from a prior burglary conviction and was being supervised by Probation Officer Betty Self. This lady testified at the sentencing hearing that she remembered when the sawmill incident occurred. She stated that the defendant was caught destroying sawmill machinery with a hammer. She said he advanced with a hammer upon the man who discovered his criminal act. She stated from her memory of the incident that the defendant was shot before he could hit the man with the hammer.

The trial judge stated that from the testimony he was satisfied that the PSI report on the prior aggravated battery conviction was accurate.

We conclude the trial judge could correctly find from part of defendant’s testimony that he admitted that he was charged with aggravated battery and he admitted that he pled guilty to this offense.

We note that the sentence that is shown on the PSI report for the aggravated battery is within the sentence guidelines for this offense and is in excess of a sentence that could have been imposed for aggravated assault which is only a misdemeanor.

The report advised the defendant of the date and place where the conviction occurred and it would have been relatively easy for him to obtain a copy of criminal proceedings that occurred on that date in the adjoining parish with reference to him and the sawmill incident. If there was any merit in his contention that he did not plead guilty to the aggravated battery these records could have established that fact. See State v. Owens, supra.

We conclude that the defendant failed to show that the pre-sentence report contained material and prejudicial false information in order to justify the vacation of his sentence.

The defendant makes the alternative contention that even if the PSI report be accurate the sentence of seven years, which is the maximum imprisonment which can be imposed for simple robbery, is excessive.

A trial judge is given wide discretion in sentencing within the statutory limits and his sentence should not be set aside as excessive in absence of manifest abuse of discretion. State v. Feeback, 414 So.2d 1229 (La.1982).

This 23 year old defendant, who had a juvenile record, was convicted of simple burglary in December, 1977, and sentenced to six years. He was released on parole in June, 1979. In January, 1980, he committed the six felony counts of simple criminal damage to property and the aggravated battery related to the sawmill incident which we earlier discussed. He was returned to prison in June of 1980 and was released in April, 1982. He committed this offense in August, 1982.

It is apparent that short periods of imprisonment have not in the past rehabilitated this defendant. The defendant’s extensive past criminal conduct justifies the sentence here imposed. The public is entitled to be protected from this defendant and the lengthy sentence may serve to rehabilitate him.

The trial judge did not abuse his discretion when he imposed this sentence. The alternative contention of excessive sentence is without merit.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Janet L. ARMSTRONG, Appellant.
    No. 15569-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.
    Writ Denied Jan. 16, 1984.

      Wellborn Jack, Jr., Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Bir-dia M. Greer and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before MARVIN, JASPER E. JONES, and SEXTON, JJ.
   MARVIN, Judge.

Defendant appeals her sentence to six years at hard labor for distribution of cocaine in 1982. LRS 40:967. This crime occurred only two months after the expiration of defendant’s probationary period under a sentence for distribution of cocaine in 1977. The sentence for this crime is a minimum five years and a maximum 30 years.

Although defendant’s specifications of error relate to the excessiveness of the sentence and the trial court’s failure to comply with CCrP Art. 894.1, the focus of the appeal relates to the trial court’s being unaware of its authority under LRS 15:1133 to sentence defendant to a community rehabilitation center.

In this respect, defendant’s appellate counsel argues that the trial court’s statement, “I wish there were a place where we could put ... you, where you would have complete psychiatric [attention and supervision] ...,” strongly indicates that if it had known of its § 1133 authority, the trial court would have sentenced defendant to such a place as is contemplated by the statute, that employs psychiatrists and other professional personnel. LRS 15:1134. On this premise, we are urged to set aside the sentence and remand so that the trial court will be free to sentence defendant to serve her term at a community rehabilitation center.

LRS 15:1134, in part, describes the community rehabilitation centers that are authorized under the statute. Act 441 of 1970. The statute requires that these centers be minimum security structures, without cells, barred windows, armed guards, or locked rooms containing any inmate. As we view the totality of the trial court’s comments at the limited sentencing hearing, even had it known of LRS 15:1133, the trial court would not have sentenced defendant to such a minimum security facility because of her history of criminal conduct and of her relationships to, and defiance of, parental and other authority, notwithstanding defendant’s recognized need for psychiatric treatment. This history is detailed in the comments of the trial judge at the sentencing hearing. The trial court expressly recommended that defendant receive psychiatric hélp during the period of her incarceration under the supervision of the Department of Corrections, “if there is psychiatric help available ...” The Department of Corrections may provide such help if it is available. See LRS 15:828, 830, 824.

Under the circumstances shown by this record, we shall affirm the sentence. The sentence is not excessive and CCrP Art. 894.1 guidelines were satisfied.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Ronny W. DAVIS, Appellant.
    No. 15579-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.
    N. Graves Thomas, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Dale G. Cox and Catherine Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before MARVIN, FRED W. JONES and SEXTON, JJ.
   MARVIN, Judge.

Defendant, a first offender who sold about $60,000 worth of cocaine to undercover policemen for $12,500, contends in this appeal that his sentence of five years is constitutionally excessive, essentially because it was not suspended. The sentence was the minimum under LRS 40:967 B, the maximum being 30 years.

Defendant is a 33-year-old unmarried college graduate, a former pilot in the Air Force, who owns his own cocktail lounge. The trial court stated some of defendant’s personal history and the facts of the offense during the sentencing hearing. The trial court substantially complied with the CCrP Art. 894.1 guidelines and the record clearly supports and illumines the sentencing factors, aggravating and mitigating. State v. Green, 409 So.2d 563 (La.1982).

A sentence may be found excessive if it makes no measurable contribution to acceptable goals of punishment or is grossly out of proportion to the severity of the crime. State v. Telsee, 425 So.2d 1251 (La.1983). In similar cases sentences have ranged from 6 to 21 years. See, e.g., State v. Bonanno, 384 So.2d 355 (La.1980) and State v. Cain, 382 So.2d 936 (La.1980). A trial court has considerable discretion in this area. State v. Howard, 414 So.2d 1210 (La.1982). We do not find an abuse of that discretion.

Sentence affirmed.