author: LANIER, Judge.

text:
    STATE of Louisiana v. Earl SMITH.
    Nos. 83 KA 0887, 83 KA 0975 and 83 KA 0976.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Ossie Brown, Dist. Atty., District Attorney’s Office, Baton Rouge, by Glen Petersen, Asst. Dist. Atty., for plaintiff-appellee.
    David Price, Appellate Co-Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

The defendant, Earl James Smith, was charged with two counts of felony theft in violation of La.R.S. 14:67 and one count of forgery in violation of La.R.S. 14:72. Smith moved to quash these prosecutions alleging that the state failed to commence his trials within two years from the dates that the prosecutions were instituted. The trial court denied these motions. Smith pled guilty to the charges and reserved the right to appellate review of the trial court's ruling on the motion to quash. State v. Crosby, 338 So.2d 584 (La.1976). On the two theft charges, Smith was sentenced to serve seven years and two years at hard labor in the custody of the Louisiana Department of Corrections. On the forgery charge, he was sentenced to serve seven years at hard labor in the custody of the Louisiana Department of Corrections. The trial court directed that all three sentences would run concurrently with each other. This appeal followed.

FACTS

On November 8, 1979, the state filed two bills of information against Smith alleging that he committed theft of cash of $1,500 on June 20, 1979 (cash theft), and theft of two tires valued at $162 on September 14, 1979 (tire theft). On January 9, 1980, bench warrants were issued for the arrest of Smith, and his bonds were forfeited in these two matters when he failed to appear for arraignment.

On February 22, 1980, the state filed a bill of information against Smith alleging that he committed forgery of a check on the account of Jean Bonin on August 6, 1979. On May 7, 1980, a bench warrant was issued for Smith’s arrest in this matter when he failed to appear for arraignment.

On April 12, 1982, Smith was brought to court, and the bench warrants and bond forfeitures previously issued were recalled and set aside. Smith was arraigned on all three charges and pled not guilty.

On April 28, 1982, Smith filed motions for preliminary examination, bail reduction and discovery in the tire theft case. On May 13, 1982, Smith filed motions for preliminary examination, bail reduction and discovery in the cash theft and forgery cases.

On June 16, 1982, in the tire theft case, the trial court reassigned the preliminary examination for hearing on June 18, 1982, and heard arguments on the motion for discovery. Smith withdrew his motion for bail reduction, reserving the right to refile it at a later date. On June 18, 1982, the trial court held the preliminary examination on the tire theft case and determined that there was probable cause to hold Smith. The court also ruled that the motion for discovery had been complied with.

On July 26, 1982, the trial court considered the motions for preliminary examination, bail reduction and discovery in the cash theft case. Evidence was taken on the preliminary examination, and the court determined that there was probable cause to hold Smith. The court also ruled that the discovery motion had been complied with. Smith withdrew his motion for bail reduction.

On August 2, 1982, Smith filed a motion to quash the cash and tire theft charges alleging that the state failed to commence his trials within two years from the date of institution of the prosecutions as required by La.C.Cr.P. art. 578(2).

On September 14, 1982, the trial court considered the motions for preliminary examination, bail reduction and discovery in the forgery case. Evidence was taken on the preliminary examination, and the court held that there, was probable cause to hold Smith. The court also denied the motion for bail reduction and ruled that the motion for discovery had been complied with.

On October 7, 1982, Smith withdrew the motion to quash filed in the two theft charges and filed a new motion to quash on the same grounds in all three charges. The trial of this motion was held on October 8, 1982. The only witness to testify at this hearing was Smith. Smith testified that his local address was 2050 Williamson Street, Baton Rouge, Louisiana. Smith went to California in December of 1979 and returned to Louisiana in 1980 to go to court. Smith was in jail in Ascension Parish for twenty-six months commencing February 19, 1980. In April of 1982, he was brought from the Ascension Parish Jail to the East Baton Rouge Parish Jail where he remained until he was transferred to the Hunt Correctional Institute (Hunt) in June of 1982. Smith was incarcerated in Hunt under the name of James Earl Jackson. Smith had been continuously in jail since February 19, 1980, except for two days when he had escaped from the Ascension Parish Jail. Smith was not asked nor did he give the dates of his escape and recapture. Smith testified that a hold had been put on him by the Nineteenth Judicial District Court while he was in jail in Ascension Parish. After receiving Smith’s testimony, the court ordered briefs and took the motion to quash under advisement.

On November 24, 1982, the court held a second hearing on the motion to quash. Counsel for Smith was given an opportunity by the court to orally respond to the state’s brief. During the course of this response, counsel for Smith advised the court that there was no evidence in the record to support the statement made in the state’s brief that Smith was recaptured from his escape from the Ascension Parish Jail on June 6, 1980. After additional argument on this point, the state attempted to offer Smith’s “rap sheet” into evidence to substantiate the June 6, 1980 date. Counsel for Smith objected to the introduction and use of the “rap sheet.” Thereafter, the following exchange took place:

The Court: Counsel, is there any — Ms. Wilemon, is there any dispute on your part that the defendant did in fact escape from the Ascension Parish Jail during 1980?
Ms. Wilemon: That’s probably true. I don’t have any idea.
The Court: Well, it’s included in his testimony in response to Mr. Petersen’s questions in the Motion to Quash.
Ms. Wilemon: Yes, sir, I know that he escaped. I don’t even — I don’t think there was even a year though.
The Court: Pardon me?
Ms. Wilemon: I don’t even think that there was a year attached to this time of escape according to my recollection of the testimony.
The Court: What’s your understanding of the date of the escape approximately, Mr. Petersen?
Mr. Petersen: June 6th of 1980.
The Court: or thereabouts.
Mr. Petersen: That’s the date of his — I put it this way. On June 6th of 1980 he was arrested for that escape which had occurred two days prior to that.
The Court: I’m going to — I’m going to accept that as being a matter proved to the Court, and I’m going to interpret the statutes in line with the State’s interpretation of what affect the defendant’s pretrial motions would have with respect to the running of time, and I’m going to deny the defendant’s Motion to Quash.
Ms. Wilemon: Your Honor, we would object and ask for Writs on that ruling and ask for dates to have them returnable from the Appellate Court.

On June 1, 1983, the defendant changed his pleas from not guilty to guilty, reserved his right to appellate review of the trial court’s ruling on the motion to quash and was sentenced.

PRESCRIPTION

Smith contends that the state failed to commence his trial within the time period established by law, that the state has failed to properly prove an interruption of the prescriptive period and that the ruling of the trial court denying his motion to quash was error.

Charges of felony theft and forgery are prescribed if no trial is commenced within two years from the date of the institution of such prosecutions. La.C.Cr.P. art. 578(2). The cash and tire theft prosecutions were instituted on November 8, 1979, and the forgery prosecution was instituted on February 22, 1980. These prosecutions would have prescribed on November 8, 1981, and February 22, 1982, unless the prescriptive periods were interrupted or suspended. La.C.Cr.P. arts. 579 and 580.

When a prisoner escapes from custody, the period of limitation established by Article 578 is interrupted and commences to run anew from the date he is recaptured. La.C.Cr.P. art. 579; State v. Howard, 325 So.2d 812 (La.1976); State v. Montgomery, 257 La. 461, 242 So.2d 818 (1970). The state contends that the time limitation of Article 578 was interrupted when Smith escaped from the Ascension Parish Jail and commenced to run anew when he was recaptured on June 6, 1980. The state further contends that the various pretrial motions filed by Smith suspended the time limitation and that it had one year after the last ruling to commence the trials. La.C. Cr.P. art. 580.

When the time limitation of Article 578 has apparently accrued, the burden shifts to the state to show an interruption or suspension of the prescriptive period. State v. Walgamotte, 415 So.2d 205 (La.1982); State v. Guidry, 395 So.2d 764 (La.1981).

Although Smith admitted that he escaped from the Ascension Parish Jail, he was not questioned about the date of the escape or the date of recapture. Although the state made reference to Smith’s “rap sheet” at the hearing held on November 24, 1982, that document was not filed of record. Counsel for Smith strongly objected to the use of the “rap sheet” to show the date of recapture. The state has attached a copy of the “rap sheet” to its brief for our consideration. This court has no authority to receive or review evidence not contained in the trial court record. Title Research Corporation v. Rausch, 433 So.2d 1105 (La.App. 1st Cir.1983). In any event, the “rap sheet” attached to the state’s brief is not certified as a record of the Louisiana Bureau of Criminal Identification and Information pursuant to La.R.S. 15:585, and the state has not laid the proper foundation to show that this document falls into the business records exception of the hearsay rule. State v. Phagans, 412 So.2d 580 (La.1982); State v. Perniciaro, 374 So.2d 1244 (La.1979); State v. Martin, 356 So.2d 1370 (La.1978). The ruling of the trial court accepting the date of June 6, 1980, as the date of recapture after Smith’s escape is in error.

When an error has occurred in an evidentiary ruling during a hearing on a pretrial motion, the motion should be remanded to the trial court for a reopened hearing to correct the error with competent evidence, if possible. Cf. State v. Jackson, 424 So.2d 997 (La.1982); State v. Edwards, 375 So.2d 1365 (La.1979). On the remand, the state has the burden to proceed and may only present competent evidence on the issues of interruption and suspension.

DECREE

Because of the erroneous evidentiary ruling of the trial court, we believe that the interest of justice requires that this case be remanded for a reopened hearing on the motion to quash. If the trial court finds that the motion to quash should be granted, the state may seek a supervisory writ to this court for our review of such adverse ruling and, in the absence of such, this appeal will be mooted; however, if the trial court reinstates its denial of the motion to quash, it is ordered to transmit to this court its ruling and the record of the reopened hearing on the motion to suppress, so this court may complete its review of the issue under the assignment of error previously made and any further ones made as a result of the ruling at the reopened hearing. The motion to quash is remanded to the trial court for further proceedings in accordance with the views and directions expressed by this opinion. In accordance with and subject to the directions expressed by this opinion, this court otherwise retains jurisdiction of this appeal.

REMANDED.

      . The record indicates that on January 17, 1983, the defendant filed a motion in proper person for preliminary examinations in all three charges. The record does not reflect that this motion was ever acted upon in the trial court. The court minutes indicate that Smith filed motions for bail reduction in proper person in all three cases, however, the record does not contain these motions or indicate the dates they were filed. The minutes reflect that the motions were denied in the cash theft and forgery cases on March 3, 1983. The minutes in the tire theft case do not reflect a disposition.

      . The record does not reflect why the state failed to secure the appropriate witnesses and/or documents to meet its burden of proving the dates of the escape and recapture.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Fred Gary HEATH.
    No. 83 KA 0928.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied April 13, 1984.
    See also, 427 So.2d 496.

      Aubert Talbot, Dist. Atty., Napoleonville, for State.
    Michael J. Matthews, Gonzales, for Fred Gary Heath, appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, Fred Gary Heath, was indicted for the second degree murder of his roommate, John Wilson, on January 6, 1981, in violation of LSA-R.S. 14:30.1 . Defendant entered a plea of not guilty and not guilty by reason of insanity. After a trial by jury, defendant was found guilty of manslaughter. Defendant was sentenced to serve twenty-one years imprisonment at hard labor. He appeals his conviction and sentence, alleging eight assignments of error.

FACTS:

On January 9,1981, the Ascension Parish Sheriffs Office received a missing person’s report on defendant’s roommate. Detective Alvin Stephens telephoned defendant and asked him to come down to the station to talk about the victim’s disappearance. After speaking with detectives at the station, defendant signed a waiver of search form, permitting the police to search his mobile home for clues of the whereabouts of the victim. Defendant drove his automobile out to his home with Detective E.J. Hahn riding as a passenger. During the drive, defendant admitted to Detective Hahn that he had killed his roommate.

When they arrived at the home, defendant directed police to a shed under which the victim’s body was buried. Defendant later gave police a written statement in which he admitted the killing. He stated that he and the victim had not fought, but they had emotionally upset each other and the victim had become depressed. He stated that he did not know why, but he killed the victim to put him out of his misery. After burying the body, defendant drove the victim’s car to New Orleans, left it in a parking garage, and took a bus back home.

ASSIGNMENT OF ERROR NO. ONE:

Defendant contends that the trial court erred in denying his motion to suppress his confession, inculpatory statements and other evidence because they were obtained through police interrogation without prior advice of his right against self-incrimination, his right to remain silent and his right to counsel in violation of the Fifth and Sixth Amendments to the U.S. Constitution as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as well as Article I, Sec. 13 of the 1974 Louisiana Constitution. Defendant argues that he was not given Miranda warnings before he made the oral inculpa-tory statement to Detective Hahn enroute to his home, and as a result the subsequent written confession and other evidence obtained by the State are also inadmissible and should be suppressed as this evidence flowed or resulted from the original oral inculpatory statement made to Detective Hahn, and are inadmissible under the “fruit of the poisonous tree” doctrine enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Detective Hahn, however testified that he gave defendant the Miranda warnings pri- or to any questioning, when they first left the Sheriffs office in the defendant’s car.

Before a confession can be introduced in evidence, the State has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. State v. Ordonez, 395 So.2d 778 (La.1981).

In this case, defendant does not raise the issue of the voluntariness of the confession, rather the issue is whether the oral inculpatory statement was made after defendant was informed of his Miranda rights. We find this case distinguishable from State v. Menne, 380 So.2d 14 (La.1980), U.S. cert. denied 449 U.S. 833, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980), cited by defendant. Menne involved the question of whether the defendant was in police custody at the time an inculpatory statement was made. Here, we need not resolve the question of whether defendant was in custody at the time he made the statement to Detective Hahn, because we find that the remark was made after defendant had received, apparently comprehended, and decided not to invoke his Miranda rights.

Furthermore, we find this case factually distinguishable from Menne. In Menne, the defendant was requested to come down to the police station in connection with a murder investigation. The police officers had information that a weapon which Men-ne had previously owned was used in the murder. The officers told Menne that they believed he knew more about the murders than he was telling and never informed him that he was free to leave. Further, Menne made the statement to the officers before being informed of his Miranda rights. In this case, Detective Stephens testified that when he telephoned defendant and requested that he come down to the station this case involved nothing more than a routine missing person’s report on defendant’s roommate. Detective Stephens further testified that he informed defendant that any participation on his part was purely voluntary. Detective Hahn testified that defendant made the inculpatory statement after receiving the Miranda warnings.

In reviewing a ruling of the trial court based upon a ruling of fact, great weight is placed on the determination of the court below because the trial judge had the opportunity to observe the witnesses and weigh the relative credibility of their testimony. These findings will not be disturbed unless they are not supported by the evidence. State v. Loyd, 425 So.2d 710 (La.1982).

As noted by the trial judge, the issue on the motion to suppress was whether to believe the testimony of defendant or Detective Hahn. At the hearing on the motion to suppress, defendant contradicted himself by first denying that he signed the waiver of search form, then admitting he did so. The trial judge who heard the testimony and observed the demeanor of the witnesses decided that the testimony of Detective Hahn was more credible, and held that the defendant had been advised of his Miranda rights.

In view of the great weight accorded the determination of the trial judge and our thorough review of the evidence, the trial court’s ruling should not be disturbed.

The assignment of error is without merit.

ASSIGNMENT OP ERROR NO. TWO:

In this assignment of error, defendant contends that he was denied a speedy trial.

Defendant was indicted by the grand jury on March 17, 1981, following his arrest on January 9, 1981. The case was originally set for trial on July 27, 1982. Prior to the July 27 trial date, defendant filed several pre-trial motions, including two motions for continuance, and applied to the Louisiana Supreme Court for writs on the denial of his motion to suppress. On the date set for trial, the trial judge ordered that the matter be continued. After reviewing the record and a tape of the arraignment and plea, the trial judge determined that the minutes were not accurate. The minutes indicated that defendant entered a plea of not guilty when he in fact pleaded not guilty and not guilty by reason of insanity.

On August 9, 1982, defendant filed his first motion for a speedy trial. Trial had been set for September 13, 1982. On August 19, 1982, an order for appointment of a sanity commission was signed by the trial judge. On August 26, 1982, the trial judge signed an amended order annulling the previous order setting the trial for September 13, 1982, reasoning that the order was unclear because it failed to state the nature of the fixing. On August 23, 1982, defendant filed a motion to vacate the order appointing a sanity commission. On October 14, 1982, the trial judge rendered judgment finding a sufficient basis for appointing a sanity commission. Subsequently, defendant applied for writs on this issue to this court. On November 8, 1982, the writ was granted in part and denied in part.

On December 1, 1982, defendant filed his second motion for a speedy trial. The trial date was set for March 1, 1983 and defendant was ordered to report for a mental examination on February 14, 1983. The trial began on March 1, 1983.

The trial in this case was held within two years of the date of indictment. Therefore, there was no violation of LSA-C.Cr.P. Article 578 which requires trial of non-capital felony cases within two years from the date of institution of the prosecution.

The right to a speedy trial is guaranteed by both the state and federal constitutions and attaches when an individual becomes an accused, either by formal indictment or bill of information or arrest and actual restraint. State v. Bodley, 394 So.2d 584 (La.1981). Louisiana has adopted the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the conduct of both the prosecution and defendant are weighed. The four factors to be considered are (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. State v. James, 394 So.2d 1197 (La.1981).

In this case, there was a twenty-six (26) month delay between arrest and trial of defendant. However, there was only a three month delay between defendant’s second motion for a speedy trial and the commencement of the trial.

In examining the reason for the delay, we note that defendant’s application for writs on the denial of his motion to suppress accounted for part of the eighteen (18) month delay between defendant’s arrest and the first trial date. During the next eight month period, defendant delayed the trial by his opposition to the appointment of a sanity commission and his application for writs on this issue.

Defendant filed two motions for a speedy trial, thus asserting his right. However, the first motion was not filed until seven months before trial.

Finally, defendant has failed to show how any delay, not attributable to him, caused him anxiety and impaired his defense, thus prejudicing him.

Further, we find no violation of LSA-C.Cr.P. Article 701, which provides that trial of a defendant charged with a felony and not in custody shall commence within one hundred eighty days unless just cause is shown. Here, trial was commenced within the time period after the second motion and there was just cause for the delay after the filing of the first motion.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. THREE:

In this assignment of error, defendant contends that there was not sufficient evidence to support the jury’s finding him sane at the time of the offense. The jury rejected the verdict of not guilty by reason of insanity and returned a responsive verdict of guilty of manslaughter.

A legal presumption exists that a defendant is sane and responsible for his actions. LSA-R.S. 15:432. The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence. LSA-C. Cr.P. Article 652. If the circumstances indicate that because of a mental disease or mental defect the defendant was incapable of distinguishing between right and wrong with reference to the conduct in question, the defendant shall be exempt from criminal responsibility. LSA-R.S. 14:14.

The standard of review applicable when a defendant pleads the affirmative defense of insanity and claims that there is insufficient evidence to support a finding of guilty beyond a reasonable doubt is whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. State v. Roy, 395 So.2d 664 (La.1981); State v. Claibon, 395 So.2d 770 (La.1981).

In Louisiana, it is left to the factual determination of the jury to determine whether the defendant was capable of knowing right from wrong with regard to the conduct complained of, without specifying as a matter of law whether the defendant must know it to be “morally” or “legally” wrong. See: State v. Abercrombie, 375 So.2d 1170 (La.1979), U.S. cert. denied 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980). All of the evidence, including both expert and lay testimony and conduct and action of the defendant, should be considered by the jury in determining sanity. State v. Liner, 397 So.2d 506 (La.1981).

In support of his insanity plea, defendant presented the testimony of Mrs. Nancy Rumage, a psychologist, and Drs. George Burke and Kenneth Ritter, both psychiatrists.

Mrs. Rumage testified that she examined defendant on four occasions, the first being February 5, 1981, less than a month after the offense. She testified that she performed psychological tests on defendant and the results showed that defendant was suffering from paranoid schizophrenia and was a strong suicide risk. It was her opinion that if defendant were having an episode he would not have known right from wrong at the time of the offense.

Dr. Burke testified that he saw defendant in May of 1978, over two years before the offense. He testified that his diagnosis was that defendant was suffering from depression and related physical disorders. He testified that while defendant exhibited some thinking disorders, he observed no evidence of paranoid schizophrenia or psychosis. Dr. Burke was of the opinion that defendant could distinguish right from wrong at the time of his examination.

Dr. Ritter testified that he saw defendant a total of ten times, the first being February 18, 1981. He testified that he observed psychosis in his examination of defendant and his diagnosis was that defendant was suffering from paranoid schizophrenia. It was Dr. Ritter’s opinion that defendant did not know right from wrong at the time of the offense.

In rebuttal, the state presented the testimony of two psychiatrists, Drs. Therisita Jiminez and Dennis Franklin.

Dr. Jiminez testified that she examined defendant only one time, on February 16, 1983. She testified that she found defendant to be very much in contact with reality and observed no psychosis in her examination. She testified that she disagreed with Dr. Ritter’s diagnosis of paranoid schizophrenia. Dr. Jiminez was unable to render an opinion as to whether defendant knew right from wrong at the time of the offense.

Because he never examined defendant, Dr. Franklin could not render an opinion on whether defendant knew right from wrong. However, he did testify that he disagreed with the criteria used by Dr. Ritter for diagnosing paranoid schizophrenia and further stated that a person could suffer from psychosis and still know right from wrong.

Defendant also presented lay testimony in support of his insanity plea. His father and sister testified that although defendant did well in school while pursuing a degree in nursing, he changed schools five times over a four year period and finally dropped out one semester short of earning a degree. Testimony also showed that following a breakup with his fiancee in 1975, defendant attempted suicide by taking an overdose of pills.

The detectives who investigated the case testified that they observed no abnormal behavior by defendant, although Detective Hahn testified that defendant began to cry when he made the inculpatory statement. The victim’s father, Thomas Wilson, testified that before filing the missing person’s report on his son, he and his wife went to the mobile home where defendant and his son were residing. He testified that defendant appeared to be extremely nervous and told them that their son had left in the early morning hours a few days earlier taking his car and all of his belongings. Mr. Wilson also testified that when his wife went inside the trailer, defendant stood in the hallway between her and the victim’s bedroom.

The record shows that defendant took several steps to conceal the crime including burying the victim’s body, disposing of the victim’s belongings, and driving the victim’s car to New Orleans and leaving it in a parking garage. While Dr. Ritter testified that these actions were not inconsistent with his diagnosis, Dr. Jiminiz testified that they were inconsistent with the degree of psychosis described by Dr. Ritter.

As we noted, the jury is free to consider all of the evidence in determining a defendant’s sanity. While Dr. Ritter testified categorically that defendant did not know right from wrong at the time of the offense, his testimony was refuted to a large degree by Drs. Jiminez and Franklin. Further, the jury could have concluded that the actions of defendant following the offense showed that he knew that his conduct was wrong.

We have reviewed all of the evidence, and viewing it in the light most favorable to the prosecution, we conclude that a rational trier of fact could have concluded that defendant failed to prove his insanity by a preponderance of the evidence.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. FOUR:

In this assignment of error, defendant contends that the trial court erred by continuing defendant’s trial on its own motion.

On the date originally set for trial, it was discovered that the State was not aware of defendant’s plea of not guilty and not guilty by reason of insanity. Although the minutes indicated that defendant pleaded not guilty, a tape of the arraignment verified that defendant had in fact entered a plea of not guilty and not guilty by reason of insanity. After discussing the matter in chambers with the District Attorney and defense counsel, the court ordered the trial continued. It appears that the court ordered the matter continued in order to appoint a sanity commission to examine defendant.

Matters pertaining to the conduct of trial are within the sound discretion of the trial court. LSA-C.Cr.P., Article 17; State v. Mack, 435 So.2d 557 (La.App. 1st Cir.1983). We do not find that the trial court abused its discretion in granting the continuance of trial.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 6:

Defendant contends that the trial court erred in denying his motion for a new trial on the basis that there was insufficient evidence to find him guilty of manslaughter. Defendant was charged with second degree murder, and the jury returned a responsive verdict of manslaughter. He contends that there was no evidence of the “passion” element of manslaughter. At trial, no objection was made by defense counsel to the jury instruction which included manslaughter as a responsive verdict. Further, in his requested special jury instructions submitted to the trial court, defendant requested an instruction on the responsive verdict of manslaughter.

Since defendant did not object to the jury instruction, which informed the jury that it could return a verdict of manslaughter, defendant cannot now complain that the evidence which would have supported a conviction of the offense charged did not support the lesser verdict chosen by the jury. See: State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982); U.S. cert. denied, — U.S. -, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983).

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8:

In these assignments of error, defendant contends that the trial court erred in imposing an excessive sentence not supported by the pre-sentence investigation report and in utilizing improper criteria in the sentencing.

The trial judge provided thorough reasons for sentence in which he considered in detail all of the factors enumerated in LSA-C.Cr.P. Article 894.1. As the trial judge noted, defendant is a first offender. However, the record shows that the killing was committed without provocation. The actions of defendant in shooting the victim in the head with a shotgun while he slept can only be described as cruel and senseless. While the evidence does show that defendant suffers from emotional problems, his plea of insanity was rejected by the jury.

Although the jury returned a verdict of manslaughter, the trial judge considered that the evidence supported a verdict of second degree murder and we agree. There is no merit to defendant’s contention that it was error for the trial court to consider the possibility of a conviction for the charge of second degree murder. See: State v. Roberts, 440 So.2d 816 (La.App. 1st Cir.1983).

Despite defendant’s lack of a prior record, we do not consider the sentence imposed so grossly disproportionate to the crime as to shock our sense of justice. Therefore, we do not find the sentence excessive.

These assignments of error are without merit.

CONCLUSION:

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

AFFIRMED.

      . The indictment form does not cite the statute which defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. LSA-C.Cr.P. art. 464.
      Defendant does not allege, nor do we find that he was prejudiced by the omission in the indictment of the citation of the statute violated. Therefore, although we find this to be error patent on the face of the record, it does not warrant reversal of the conviction.

      . It is clear from the record that defendant was advised of his Miranda rights at the time he was placed under arrest at the site of his mobile home after he had made the statement to Detective Hahn, and prior to his written statement.

      . Institution of prosecution means the finding of an indictment, or the filing of an information, or affidavit, which is designed to serve as to basis of a trial. LSA-C.Cr.P. art. 934(7).

      . Defendant maintained he and the victim had not argued nor was he angry with the victim. Detective Hahn testified that defendant stated he was upset with the victim, and they had an argument when defendant discovered the victim planned to move. The shooting, however, took place later that night while the victim was asleep.


author: PONDER, Judge.

text:
    Floyd L. COX, Jr. v. Peggy S. COX.
    No. 83 CA 0968.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Fred H. Belcher, Jr., Baton Rouge, for plaintiff-appellant Floyd L. Cox, Jr.
    C. John Naquin, Jr., Baton Rouge, for defendant-appellee Peggy S. Cox.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed from that portion of the judgment granting the defendant alimony and child support and requiring plaintiff to pay the mortgages on the family home.

The issues on appeal are 1) the jurisdiction of the court to order plaintiff to pay the home mortgage and 2) the amount of child support and alimony.

Plaintiff originally filed suit for separation and defendant reconvened for a divorce. At trial, the parties stipulated the grounds for divorce and further stipulated that defendant was not at fault, would retain custody of the minor child and would have exclusive use of the family home.

Defendant testified that the monthly expenses incurred by her and her minor son totaled $1,505.00 and that her net monthly income was approximately $537.00. She worked as a part-time salesperson for a department store.

Plaintiff submitted an expense sheet indicating that his monthly expenses totaled $1200.00 and his gross monthly income from an insurance agency which he owns and operates was $1500.00.

The trial judge awarded defendant the exclusive use of the family home, $250.00 per month alimony and $300.00 per month child support. He ordered plaintiff to maintain the first and second mortgages on the family home and explained in oral reasons that the mortgage payment was neither alimony nor child support, but the ordered payment of a community debt.

Plaintiff first argues that by ordering plaintiff to maintain the home mortgages and specifically stating that such payment does not constitute alimony or child support, the trial judge went beyond his statutory jurisdiction described in La.R.S. l&HOli?). We disagree.

The word alimony refers to the nourishment, lodging, and support of the person who claims it. La.C.C. art. 230. By ordering plaintiff to maintain the mortgages on the home, the trial judge was providing living accommodations for defendant and her minor child. We find that the furnishing of the family home without payment by Mrs. Cox is a part of the support for plaintiff’s wife and child. The order to pay the mortgages was a means of assuring the continued availability of that family home. As a matter of fact, counsel for appellant informed the court at the beginning of the trial it would have to decide who would be required to pay the house notes. We find no error.

Plaintiff next argues that $250.00 in alimony, $300.00 in child support, and $290.00 for the home mortgage and insurance were excessive in view of plaintiffs gross income of $1500.00 per month.

The trial judge, in oral reasons, noted that there was some evidence that plaintiff was able to pay from an unknown source bills in excess of his salary since plaintiffs testimony indicated he was covering expenses for his major and minor children, including their automobile notes, gas and insurance, and that the bills he was paying exceeded his salary by a considerable amount. Plaintiff explained that he had to borrow money from his parents. A canceled check from his father in the amount of $2500.00 was introduced, but plaintiffs testimony indicated that the money was used for business purposes and not to cover family bills. Plaintiff’s parents were not called to verify the loans.

The testimony also showed that plaintiff was only able to afford an apartment for six months and currently lives with his parents.

The granting of the occupancy of the family home is considered in awarding alimony and child support. La.R.S. 9:308. Therefore, the fact that plaintiff has been ordered to maintain the mortgage on the family home must also be considered in meeting the wife’s and child’s needs.

When $250.00 monthly alimony is added to defendant’s income, she would have a total of $787.00 coming in each month. Her testimony indicated that once the cost of the home mortgage and insurance was paid, her monthly needs were $686.00 per month.

While defendant’s income would then exceed her needs, we must also consider that the needs of the minor child, once the cost of lodging and his car note are deducted, total $376.00 monthly or $76.00 more than he is receiving in child support. Therefore, defendant will be contributing to her son’s support to make up the difference.

Although the $250.00 alimony may be high in light of the fact that defendant’s lodging is paid for, the trial judge is given great discretion in such areas. We conclude that while defendant is receiving an amount in excess of what her shown individual needs are, that excess will be used to help provide for her minor son. We find no error.

We also find that the child support award is appropriate. Since the defendant has few skills, makes a small salary, her health prevents her from working full time and she is furnishing some parental care, we find that she is entitled to receive a little more than three-fourths of the amount needed for the child. The end result, when the joint needs of the wife and child are considered, is equitable.

For these reasons, the trial court’s judgment is affirmed. Costs are to be assessed to the plaintiff.

AFFIRMED.

      .La.R.S. 13:1401(7) provides:
      “There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:

      (7) All actions for divorce, separation from bed and board, annulment of marriages, establishment or disavowal of the paternity of children, alimony and support, custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees to the wife in judgments of divorce and separation, the cumulation of and rendering executory of alimony, the issuance of writs of fieri facias and garnishment under judgments of the court for alimony and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge. The Nineteenth Judicial District Court for the parish of East Baton Rouge however, shall retain jurisdiction of all proceedings involving liquidation and partition of the community after a judgment of divorce or separation from bed and board.”

      . The home’s second mortgage was a result of it being used as collateral for a loan for plaintiff’s insurance agency. The insurance agency was responsible for the payment of the note and therefore we do not consider it as coming from the plaintiff’s salary.

      . Mr. Cox is ordered to pay the mortgage notes only until the partition of the community. The payments he is making will result in the increase of the equity of the community in the property and will inure to his benefit upon partition of the community. See Clesi v. Clesi, 340 So.2d 419 (La.App. 4th Cir.1976).


author: GUIDRY, Judge. DOMENGEAUX, J.,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Ronald JAMES a/k/a James Gregg, Defendant-Appellant.
    No. CR83-390.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      L. Paul Gianfala, Lafayette, for defendant-appellant.
    Glenn B. Foreman and Robert T. Cline, Asst. Dist. Attys., Crowley, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

On April 15, 1983, the defendant, Ronald James, also known as James Gregg, was convicted of armed robbery, a violation of LSA-R.S. 14:64. On August 6, 1982, defendant was sentenced, to serve seventy-five years at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals his conviction and sentence on the basis of five assignments of error.

FACTS

On November 9, 1981, the defendant was canvassing West Hutchinson Street, Crowley, Louisiana, attempting to sell magazine subscriptions. For this purpose, he and a fellow worker entered the home of Ella Monroe, at approximately 8:00 p.m. The two remained inside the house close to a half-hour, during which time Ms. Monroe purchased a subscription to T.V. Guide magazine. The defendant later returned to the Monroe home, ostensibly to record an address on her copy of the receipt. After the victim was unable to locate her receipt, the defendant left momentarily. He then re-entered the home, grabbed Ms. Monroe and held a knife to her throat, threatening to cut her throat. The victim testified that defendant took seventy-five dollars from her at that time.

On appeal, the defendant asserts that the trial court erred in:

(1) allowing Captain Gilford Richard to remain in court after the rule of sequestration was invoked by defense counsel;

(2) allowing the state to read the oral inculpatory statement made by defendant to the jury;

(3) allowing Captain Gilford Richard to testify in the capacity of a fingerprint expert;

(4) considering past criminal charges and accusations of other crimes set out in the pre-sentence report when the sentence was rendered; and,

(5) imposing an excessive sentence in violation of Article 1, Sec. 20 of the Louisiana Constitution.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, the defendant alleges that the trial court erred when it allowed Captain Gilford Richard to remain in court after the rule of sequestration was invoked by defense counsel.

LSA-C.Cr.P. Art. 764 provides the rule for sequestration of witnesses:

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

An order of sequestration is intended to assure that a witness will testify concerning his own knowledge of the case without being influenced by the testimony of prior witnesses and to strengthen the role of cross-examination in developing facts. State v. Kimble, 407 So.2d 693 (La.1981).

Essentially, the defendant argues that Captain Richard was arbitrarily excluded from the rule of sequestration, thus allowing him to remain in the courtroom to hear the testimony of other witnesses, and to be recalled as needed by the defense. Therefore, the defendant argues, this placed the defendant at a great disadvantage and the trial judge’s action in allowing Captain Richard to remain in the courtroom was an abuse of his discretion. We find no merit to this contention.

Before the voir dire examination of the prospective jurors the trial judge, of his own volition, inquired as to whether there were any witnesses in the courtroom. After a bench conference, the judge requested that the witnesses wait in the jury deliberation room during the voir dire examination. . At that time, the assistant district attorney instructed Captain Richard to stay. The defense attorney did not offer any objection or protestation to Captain Richard’s remaining in the courtroom during voir dire. Therefore, under LSA-C. Cr.P. Art. 841, the defendant has waived his right to assert as error the failure of the trial court to exclude Captain Richard from the courtroom during such procedure.

After the trial commenced, neither the defense nor the state made a formal motion to sequester the witnesses. Captain Richard was the first witness to testify. Subsequently, two other witnesses, Stephanie Berrian and Harold Hebert, were called. Captain Richard was then recalled to testify. It was during his subsequent testimony that the defense counsel moved for the sequestration of the witnesses. Following the sequestration of the witnesses, Captain Richard completed his testimony, and was not recalled to testify thereafter.

The foregoing facts make it clear that there was no violation of the trial court’s sequestration order. The witnesses were properly instructed and excluded from the courtroom following the defendant’s motion to sequester. The defendant may not assert as error the presence of Captain Richard during the testimony of Berrian and Hebert, as the sequestration of witnesses had neither been ordered nor requested at that time. This assignment of error is therefore without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment, the defendant asserts that the trial court erred in allowing the state to read the defendant’s oral inculpato-ry statement to the jury. He claims that the statement was highly prejudicial because he was instructed to initial the statement after he expressed his desire to end the statement and to consult an attorney, and that the presence of his initials on the statement may have appeared to the jury to buttress the conclusion that the statement was free, voluntary and knowingly made. He argues that the jury was not informed that the presence of the initials actually signified the defendant’s wish to end the statement. The defendant also contends that the introduction of the statement into evidence was reversible error because the statement was written down by Captain Richard and did not reflect the defendant’s statement verbatim.

Whenever the state seeks to introduce into evidence an inculpatory statement, it has the burden of proving beyond a reasonable doubt that the statement was made freely and voluntarily, and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; State v. Jackson, 414 So.2d 310 (La.1982). More specifically, the state must demonstrate that the accused was advised of his Miranda rights and that he knowingly and intelligently waived these rights. Moreover, if he indicates in any manner and at any stage in the process that he wishes to consult with an attorney, the interrogation must cease. State v. Carter, 412 So.2d 540 (La.1982). The admissibility of an inculpatory statement is in the first instance a question for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the statement will not be overturned unless they are not supported by the evidence. Jackson, supra at 312.

To be admissible, a confession need not be a verbatim record of the defendant’s oral version. State v. Johnson, 327 So.2d 384 (La.1976). State v. Simmons, 328 So.2d 149 (La.1976), appeal after remand 340 So.2d 1357. In Johnson, the defendant gave an oral statement during which a detective took notes. These notes were then typed by a secretary, and the typed confession was presented to defendant for his signature. Though the defendant signed the confession, the officers were unsure whether he read it. In ruling on the defendant’s objection to this procedure, the Court noted that the defendant was given ample opportunity to read it and object to any part he considered inaccurate and that the defendant, who made no allegation that he was illiterate or that coercion was used to obtain his signature, signed it.

In Simmons, the defendant was illiterate and by assignment complained of the manner in which the confession had been reduced to writing. In ruling on this question, the Court stated: “The objection goes merely to the weight to be given the evidence. Nor is the statement, if otherwise admissible, to be excluded because the interrogation of an illiterate accused is reduced to typewritten material by the interrogating officer.” See also State v. Lefevre, 419 So.2d 862, 867 (La.1982).

In the instant case, the testimony of Captain Richard reflects that he read the defendant his Miranda rights twice and that the defendant read the form once, and informed the officers that he understood his rights. Based upon this testimony, the trial judge ruled that the inculpatory statement was voluntary and thus admissible into evidence. Therefore, the defendant’s objection as to his statement being written down by Richard goes to the weight of the evidence rather than to its admissibility. Simmons, supra. It is noted that the defense attorney on cross-examination of Captain Richard amply demonstrated to the jury that the statement was written by Captain Richard and not by the defendant. This assertion of error lacks merit.

Similarly defendant’s assertion that the statement should be held inadmissible because of the testimony relating to his initials is also without merit. Defendant argues that the testimony reflecting his initials on the statement may have appeared to reflect to the jury that his statement was free, voluntary and knowingly made, rather than the actual fact that it only signified his desire to end the statement. As stated earlier, the admissibility of a confession is in the first instance a question for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the statement will not be overturned unless they are not supported by the evidence. Jackson, supra. In this case, the trial judge had already determined the vol-untariness of the defendant’s statement. While on the stand, Captain Richard read the statement, including the sentence “Stopped at this point and wanted a lawyer. R.J.” There was no attempt made to interpret any portion of the defendant’s statement, but rather, it was read and allowed to stand on its own merit before the jury. In his closing argument, the prosecuting attorney re-read the statement and illustrated some discrepancies between its contents and the testimonies presented by other witnesses. Despite defendant’s allegation in his brief that “the State made quite a point (in his closing argument) that the defendant initialed the statement freely and voluntarily”, the transcript does not support this claim. Furthermore, during the cross-examination of Captain Richard, the defendant did not attempt to clarify any confusion which he might have perceived to be within the minds of the jury concerning the defendant’s initialling the statement. Inasmuch as the defendant has failed to show that he has suffered any prejudice from this alleged error, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment of error the defendant contends that the trial court erred in allowing Captain Richard to testify in the capacity of a fingerprint expert. More particularly, he alleges that the prosecuting attorney asked the witness several questions which called for an opinion, that the witness was not testifying as to facts within his personal knowledge, but rather as to his impressions or opinion, and that the testimony was elicited without a proper foundation being laid for such evidence.

The Supreme Court has consistently held that, with rare exception, a witness can testify only as to facts within his knowledge. He may not testify, unless properly qualified as an expert, as to any impression or opinion he may have. Nevertheless, as to subjects about which any person of experience might make an inference, a witness has not been prohibited from testifying as to natural inferences drawn from the facts he has personally observed. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Haarala, 398 So.2d 1093 (La.1981).

During cross-examination of Captain Richard, defense counsel questioned him concerning the report by the crime lab which indicated no fingerprints were found on the alleged weapon used by the defendant. On redirect examination, the prosecuting attorney asked the defendant, “Does it surprise you that there are no fingerprints on that knife.” The defense counsel objected stating, “I would object to this questioning. He’s on direct examination.” By this statement, it would appear that the basis for the defendant’s objection was that the prosecutor was asking leading questions to his own witness. The basis for the objection was not that the question called for an opinion; thus, the defendant appears to be raising a new basis for this objection in his brief. A new basis for an objection cannot be raised for the first time on appeal. LSA-C.Cr.P. Art. 841; State v. Feeback, 414 So.2d 1229 (La.1982).

The next allegedly improper questioning arose when the prosecuting attorney asked the witness “What percentage of time do you find prints on a weapon?” The defendant objected to this question stating that it called for an expert opinion. The trial judge overruled the objection, allowing the witness to testify based upon his own knowledge of cases. This ruling appears to be correct. The witness responded that in fourteen years, only three cases had been made with fingerprints. As this answer appears to have been from the witness’s personal knowledge, it is not objectionable as opinion evidence.

The remaining two sets of questions which the defendant claims sought answers which were inadmissible opinion testimony are as follows:

“MR. CLINE:
Q. In fact, any piece of paper or any rag or cloth or anything would prevent fingerprints, wouldn’t it?
A. Yes, sir.
Q. Any wiping would prevent fingerprints?
A. That’s usually the case.
Q. And even without that, you don’t have a guaranty if you don’t have wiping and you don’t have paper, you don’t have anything to cover, you still don’t have a guaranty that you are going to get a print do you?
A. That’s correct, sir.
MR. CLINE:
Q. Why is it so dusty?
A. This is fingerprint dusting latent powder that was put on the telephone.
Q. Okay. Did you find any prints on it?
A. No prints.
Q. Does that surprise you?
A. Doesn’t surprise me.”

We entertain serious doubt as to whether the foregoing constitutes opinion testimony. It appears to us that the testimony merely contains facts within the knowledge of Captain Richard, gained through his years of experience in police work. In any event, the defendant offered no objection to either of these series of questions as is required by LSA-C.Cr.P. Art. 841. Fulfillment of this requirement allows the trial court the opportunity to rule on the objection and to avoid or cure any errors, and thus the failure of the defendant to object waives any alleged error. State v. Vanderhoff, 415 So.2d 190 (La.1982).

In light of the foregoing, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment, the defendant contends that the trial court erred in considering past criminal charges and accusations of other crimes set out in the pre-sentence report when the sentence was rendered. This assignment is not meritorious.

The sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Douglas, 389 So.2d 1263 (La.1980). Prior criminal activity is one of the factors under LSA-C.Cr.P. Art. 894.1 to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Brown, 410 So.2d 1043 (La.1982); State v. Washington, 414 So.2d 313 (La.1982). In Washington, the trial judge took into consideration the confession of defendant’s co-conspirators as evidence of prior criminal activity. In State v. Williams, 412 So.2d 1327 (La.1982), the Supreme Court held that the trial judge did not err when he took into consideration the defendant’s prior record of numerous arrests, even though he had never been prosecuted for those arrests and only had one prior conviction in 1967 for the crime of illegal carrying of weapons. Finding that the trial judge carefully articulated the basis for the sentence after considering appropriate factors, including the defendant’s history of criminal activity, the court noted in its footnote:

“Both arrests and convictions may be considered in imposing sentence, as long as defendant, as here, is given notice of the derogatory information and is afforded a chance to speak in mitigation. In some cases it may be preferable to ascertain the factual basis for an arrest from such sources as police reports or presentence investigation reports. The sources of information upon which trial judges may draw in determining an appropriate sentence must be wide and varied, and not subject to the normal restrictions imposed in the guilt determination phase of proceedings. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).” footnote 1, p. 1328.

In this case, the defendant was furnished with a copy of the presentence investigation report, reviewed it with his attorney, and was offered an opportunity to speak in his behalf before the trial judge sentenced him. Therefore, it appears that the defendant was given notice of any derogatory information and was offered a chance to speak in mitigation. Williams, supra. In light of this fact, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment, the defendant contends that the trial court imposed an excessive sentence in violation of Art. 1, Sec. 20 of the Louisiana Constitution. The defendant was sentenced to serve seventy-five years at hard labor without benefit of probation, parole or suspension of sentence.

A sentence is excessive if the penalty is grossly disproportionate to the crime. State v. Pearson, 425 So.2d 704 (La.1982); State v. Goode, 380 So.2d 1361 (La.1980). In determining whether the penalty is grossly disproportionate to the offense, the appellate court must “consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” State v. Pearson, supra; State v. Bonanno, 384 So.2d 355 (La.1980); State v. Beavers, 382 So.2d 943 (La.1980). The trial judge has wide discretion in imposing sentences within statutory limits. Absent a manifest abuse of that discretion, the sentence imposed by the trial court will not be set aside as excessive. State v. Forshee, 395 So.2d 742 (La.1981); State v. Napoli, 428 So.2d 957 (La.App. 1st Cir.1983), writ granted on other grounds, 437 So.2d 868 (La.1983).

The pre-sentence investigation report made a part of the record shows that the defendant has a long history of serious criminal activity. Between 1977 and 1981, the defendant was arrested for and charged with numerous offenses, including two rapes, an armed robbery, two counts of simple burglary, possession of a deadly weapon, aggravated battery, possession of stolen property, attempted escape and possession of marijuana with intent to distribute. The report also reveals that the defendant stands charged with the aggravated rape of Ms. Monroe, which allegedly occurred during the armed robbery here under consideration.

In light of the defendant’s history of criminal activity, and in particular his record of serious crimes against the person, we find no abuse of the trial court’s discretion in the imposition of a seventy-five year sentence. This assignment lacks merit.

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

AFFIRMED.

DOMENGEAUX, J.,

concurs. See concurring opinions in cases at State v. Goodman, 427 So.2d 529 (La.App.1983); State v. Vallare, 430 So.2d 1336 (La.App.1983); and State v. Shelby, 438 So.2d 1166 (La.App.1983).

      . It is observed that the judge’s request for the witnesses to leave the courtroom does not appear to be an invocation of the rule of sequestration. There is no notation in the minutes to show that the rule of sequestration was invoked. Furthermore, the record does not show that all the witnesses were present at that time, nor does it show that the witnesses were instructed concerning the rule of sequestration.


author: GUIDRY, Judge.

text:
    Alton J. KNIGHT, Individually and as Administrator of the Estate of the Minor, Amy D. Knight, Plaintiff-Appellant, v. Laura G. SAMUEL, et al., Defendants-Appellees.
    No. 83-473.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ Denied April 23, 1984.

      Smith, Ford & Clark, Chris Smith, III, Leesville, for plaintiff-appellant.
    Gachassin & Capretz, Susan Severance, Lafayette, and Laura G. Samuels, in pro. per., for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

This suit was consolidated for appeal with the case of Knight v. St Paul Fire and Marine Insurance Company, 447 So.2d 594 (La.App. 3rd Cir.1984). The two suits arise out of a single automobile accident. The trial court rendered judgment in both suits on April 25, 1983. Since the consolidated suits arise as a result of the same factual circumstances, we will consider and discuss the issues presented in both suits in this opinion but we will render a separate opinion in the case which bears our docket number 83-474.

The automobile accident in question occurred on the afternoon of March 7, 1980, on Louisiana Highway 28, a two-lane highway in Vernon Parish. Shirley H. Knight, driving a 1976 Chevrolet, was proceeding in a westerly direction on Highway 28. Her daughter, Amy D. Knight, was a passenger in the vehicle. Just prior to the accident, a 1965 Rambler, being operated by Laura G. Samuel, was parked on the north, or westbound, shoulder of the highway, some distance ahead of the Knight vehicle. As the Knight vehicle topped the crest of a small hill, the Samuel vehicle suddenly pulled out from the shoulder into the westbound lane of travel. To avoid a collision with the Samuel vehicle, Mrs. Knight swerved her vehicle to the left, crossing the center line and the south, or eastbound, lane of travel, and on to the south shoulder of the highway.

As Mrs. Knight was swerving to avoid colliding with the Samuel vehicle, a line of several cars approached from the opposite direction, travelling eastward. The first of these vehicles, being operated by Suzanne Dubois, swerved to the right, onto the south shoulder of the road. The Knight vehicle and the Dubois vehicle collided head-on on the south shoulder of the road. As a result of the collision, Shirley Knight was killed and Amy Knight was seriously injured.

Alton J. Knight filed the first of these related suits on March 6, 1981. In that suit (number 83-473), he sought to recover on behalf of his daughter, Amy, for the injuries which she suffered in the accident. Made defendants were Laura G. Samuel and St. Paul Fire and Marine Insurance Company, the insurer of the Knight vehicle. The policy issued by St. Paul limited liability for bodily injury to $5,000.00 for any one person and $10,000.00 per accident. The uninsured motorist provisions of the St. Paul policy also provided coverage for bodily injury in the amount of $5,000.00 for any one person and $10,000.00 per accident. The Samuel vehicle was uninsured. In this suit, the plaintiff alleged that the accident resulted from the joint and concurrent negligence of Shirley Knight and Laura Samuel, and sought recovery under both the liability and uninsured motorist provisions of the policy. This suit was tried on September 3, 1982. At the close of evidence, the trial judge indicated that, according to his impression of the testimony, he felt that the accident was caused solely by the negligence of Laura Samuel.

On the same day that the first suit was tried, September 3, 1982, the plaintiff filed the second suit (number 83-474). In the second suit, the plaintiff seeks damages, for himself and on behalf of Amy, for the wrongful death of Shirley Knight. The defendants in the second suit are the same as in the first, Laura Samuel and St. Paul. As against St. Paul, recovery is sought pursuant to the uninsured motorist provisions of the policy issued on the Knight vehicle. In response to the second suit, St. Paul filed an exception of prescription urging that the wrongful death suit was filed more than two years following the accident in question.

On February 3, 1983, the trial court rendered reasons for judgment in both suits. In the suit for Amy’s personal injuries (number 83-473), the trial court rendered judgment in favor of the plaintiff, Alton J. Knight, and against the defendants, Laura Samuel and St. Paul, in the sum of $25,-000.00. St. Paul’s liability was limited to $5,000.00, the policy limits under the uninsured motorist provisions of the policy. Plaintiff’s suit against St. Paul seeking recovery under the liability provisions of the policy for the negligence of Shirley was ordered dismissed with prejudice. In the wrongful death action (number 83-474), the trial court sustained the exception of prescription and dismissed the plaintiff’s suit against St. Paul. Plaintiff lodged devolu-tive appeals in both suits.

On appeal, the plaintiff contends that the trial court erred in failing to find negligence on the part of Shirley Knight in number 83-473. Should the judgment in number 83-473 be affirmed, plaintiff argues in the alternative that the trial court erred in sustaining the exception of prescription in number 83-474.

REVIEW OF FACTUAL DETERMINATION

The trial court found that the accident was caused solely by the negligence of Laura Samuel, and that there was no negligence on the part of Shirley Knight. Plaintiff was therefore denied recovery for Amy’s injuries under the liability provisions of the policy covering the Knight vehicle. For the reasons which follow, we affirm the judgment of the trial court in this regard.

Several witnesses testified as to how the accident occurred. Thomas G. Allen was driving his car in the eastbound lane of Highway 28 in the line of vehicles following the Dubois vehicle. He stated that the Samuel vehicle, which was parked on the westbound shoulder prior to the accident, pulled out into the westbound traffic lane into the path of the Knight vehicle. He further stated that it was necessary for the Knight vehicle to swerve to avoid hitting the Samuel vehicle. According to Allen, Shirley Knight did everything possible to avoid a collision.

E.L. Harville witnessed the accident from his home approximately one hundred yards from the point of collision. His testimony is in accord with that of Allen. He stated that when the collision occurred, the Samuel vehicle was in the westbound lane of traffic, and that the Knight vehicle would have struck the Samuel vehicle had it not swerved to avoid the collision. Both Allen and Harville testified that the Samuel vehicle darted back onto the shoulder after pulling into the traffic lane.

Laura Samuel testified that she never drove her vehicle into the traffic lane, but rather pulled up to the edge of the pavement before being warned by her daughter of the approaching Knight vehicle. She stated that there was adequate room for Mrs. Knight’s vehicle to pass in the westbound lane without crossing the road. Jackie Wesson, the daughter of Laura Samuel and a passenger in the car at the time of the accident, testified that her mother did in fact partially enter the road before being warned that a car was approaching from behind. At that point, she immediately returned to the shoulder of the road.

After hearing the evidence taken at trial, the trial judge concluded that the Samuel vehicle encroached upon the lane of travel occupied by the Knight vehicle necessitating some evasive action on the part of Mrs. Knight. We find no clear error in this factual determination. Furthermore, we agree with the trial judge that the conduct of Mrs. Knight was in no way negligent. The record makes clear that Mrs. Knight was forced to swerve her vehicle in order to avoid a collision with the Samuel vehicle. As she swerved to the left to avoid the collision, she was faced with a line of several cars approaching in the eastbound lane. Faced with this danger, she continued to veer to the left in order to seek safety on the southern, or eastbound, shoulder of the highway. In our view, this may have been the most prudent choice Mrs. Knight could make in her attempt to avoid a collision with another vehicle and injury to herself and Amy. Unfortunately, Dubois also sought safety on the same shoulder, and the collision resulted.

However, assuming, arguendo, that the evasive action taken by Mrs. Knight was not the safest or most prudent maneuver under the circumstances, her conduct was clearly justified in light of the sudden emergency doctrine. As stated in Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972):

“One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.”

The emergency in the instant case was clearly not brought on by Mrs. Knight, but rather by the negligent conduct of Laura Samuel. Mrs. Knight’s attempt to avoid a collision by crossing the highway and driving onto the south shoulder was not negligent, despite the fact that, with the aid of hindsight, one might determine that a safer course of action was available. We find no error in the trial court’s finding that Mrs. Knight was free of negligence. For these reasons, we affirm the trial court’s judgment in the appeal which bears our docket number 83-473.

EXCEPTION OF PRESCRIPTION

We next turn to the plaintiff’s second and alternative assignment of error. He asserts that the trial court erred in sustaining the exception of prescription filed by St. Paul in the wrongful death action, which results in the dismissal of St. Paul from that suit.

The plaintiff’s wrongful death claim against St. Paul is grounded in the uninsured motorist provisions of the policy issued on the Knight vehicle. The plaintiff alleges that the tortfeasor, Samuel, was uninsured, and that he is entitled to recover wrongful death damages, on his own behalf and on behalf of his daughter, from St. Paul pursuant to the uninsured motorist provisions of the policy.

LSA-R.S. 9:5629 provides:

“Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.”

The wrongful death action against St. Paul was filed on September 3, 1982, more than two years after the accident in question, which occurred on March 7, 1980. Therefore, absent an interruption or suspension of prescription, the second suit, seeking damages for the wrongful death of Shirley Knight under the uninsured motorists provisions of the St. Paul policy, has prescribed. The plaintiff contends that the filing of the first of these related suits, in which he sought damages for Amy’s personal injuries, interrupted prescription of the wrongful death action.

The first suit, seeking damages for Amy’s personal injuries, was filed on March 6, 1981. The second suit, seeking damages for the wrongful death of Shirley Knight, was filed on September 3, 1982. The exception of prescription filed by St. Paul in response to the wrongful death action was filed on September 9, 1982. At these relevant times, LSA-R.S. 9:5801 pro-' vided in pertinent part:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue.. .”.

The relevant inquiry in the instant case thus becomes whether the first suit, for Amy’s personal injuries, and the second suit, for the wrongful death of Mrs. Knight, state a single cause of action. If the two suits involve a single cause of action, the filing of the first suit interrupts prescription on the second, and the interruption continues through the pendency of the first suit. LSA-R.S. 9:5801; also see Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983); Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979). Conversely, if the two suits involve separate and distinct causes of action, the filing of the first does not interrupt prescription on the second suit. Guidry v. Theriot, 377 So.2d 319 (La.1979).

For the reasons which follow, we hold that the two suits filed by the plaintiff state different causes of action. Accordingly, the filing of the personal injury suit did not interrupt prescription on the wrongful death action, and therefore, the latter suit has prescribed.

In Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975), the Louisiana Supreme Court defined a cause of action as “... an act by a defendant which gives a plaintiff a right to invoke judicial interference on his behalf. A cause of action in tort has no identity independent from the defendant upon whose fault it is based.” (emphasis by court, citation omitted). The Trahan court also cited, with apparent approval, the following definition of a cause of action given in Hope v. Madison, 192 La. 593, 188 So. 711 (1939):

“A cause of action is an act on the part of a defendant which gives rise to a plaintiffs cause of complaint; ‘the existence of those facts which give a party a right to judicial interference in his behalf; ‘the situation or state of facts which entitles a party to sustain an action’.
“ ‘When used with reference to the pleadings by which the cause of action is alleged, the phrase signifies the facts upon which the plaintiff’s right to sue is based, and upon which the defendant’s duty has arisen, coupled with the facts which constitute the latter’s wrong.’ Quotations from 2 Words & Phrases, First Series, Cause of Action, p. 1017.” (Emphasis provided)

The most recent definition given to “cause of action” is found in Louviere v. Shell Oil Co., supra, where the Supreme Court stated:

“A cause of action consists of the material facts which form the basis of the right claimed by the party bringing the action.” 440 So.2d at page 95.

Although the two suits filed by the plaintiff herein involve the same defendants and arise out of the same accident, an examination of the material facts which form the basis of the plaintiff’s right in each suit makes it clear that a separate and distinct cause of action is asserted in each suit.

In the first suit, wherein the plaintiff seeks damages for Amy’s personal injuries, the plaintiff asserts that the accident occurred as a result of joint and concurrent negligence on the parts of Mrs. Samuel and Mrs. Knight. A finding of negligence on the part of Mrs. Knight was necessary to the plaintiff’s recovery under the liability provisions of the policy issued by St. Paul. The petition in the first suit failed to make allegations sufficient to state a cause of action for the wrongful death of Mrs. Knight. An examination of the petition reveals that it did not even state that Mrs. Knight died in the accident. The petition not only failed to state a cause of action for the wrongful death of Mrs. Knight, but more importantly, it alleged material facts which would preclude the recovery of damages for the wrongful death of Mrs. Knight, since at the time of the accident, contributory negligence on the part of a decedent precluded the recovery of wrongful death damages by his beneficiaries. Thus, in the instant case, the causes of action asserted in each suit are not only separate, but are, according to their factual allegations, mutually exclusive of one another.

The plaintiff asserts that, because the two claims arise out of a single accident, the causes of action are the same. We disagree. While the foregoing definitions of a cause of action focus on the acts of the defendant, they should not be understood to mean that all claims arising from a single tort constitute a single cause of action. In Guidry v. Theriot, supra, the Supreme Court considered the question of whether a timely filed survival action interrupted prescription on a wrongful death claim. As in the instant case, the issue turned on whether there was a single cause of action, in which case the filing of the survival action would have interrupted prescription on the wrongful death claim. Both claims arose out of the same conduct by the defendant, alleged medical malpractice. The Supreme Court stated:

“We conclude that each of these actions is a separate and distinct cause of action. Although both actions arise from a common tort they are, nevertheless, separate and distinct because each arises at a different time. The survival actions comes into existence simultaneously with the commission of the tort and is transmitted to the beneficiaries upon the victim’s death. The wrongful death action does not arise until the victim dies. Each right addresses itself to the recovery of damages for totally different injuries and losses. The survival action permits recovery only of the damages suffered by the victim from the time of injury to the moment of death. The wrongful death action is intended to compensate the beneficiaries for compensable injuries suffered from the moment of death and thereafter.
If the actions are deemed but one cause of action giving rise to recovery by different individuals it would follow that in the event the victim compromised his claim and then died the wrongful death action would be lost to the beneficiary. We do not believe the legislature intended such a result.
To put the issue at rest, we conclude and hold that the rights arising in instances of this nature are not a single right of action but two separate and distinct actions.”

As in Guidry, the actions in the instant case arise at different times. The action for Amy’s personal injuries arose at the time the accident occurred. The wrongful death action arose upon Mrs. Knight’s death. This distinction exists despite the fact that, in this case, the two triggering events happen to have occurred at nearly the same time.

The two actions not only arise at different times, but exist to compensate the plaintiff for different injuries. The personal injury suit serves to compensate a tort victim for those losses and injuries which are peculiar, or personal, to that victim, while the wrongful death action serves to compensate a legislatively created class of persons for the loss occasioned by the wrongful killing of the decedent. We conclude that the two suits state different causes of action. Therefore, prescription was not interrupted, and the plaintiffs wrongful death action has prescribed.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.

      . It should be noted that LSA-C.C. Art. 2315 establishes a prescriptive period for wrongful death actions of one year, reckoning from the date of death. We need not consider the possible conflicts between Art. 2315 and R.S. 9:5629 since, under the particular facts of the instant case, the wrongful death action would be prescribed under either statute, unless some event served to interrupt prescription.

      . LSA-R.S. 9:5801 was repealed by Act No. 274 of 1982, effective January 1, 1983. The repeal was recommended by the Louisiana State Law Institute because the substance of the statute was included in LSA-C.C. Art. 3462, enacted by Act No. 187 of 1982, effective January 1, 1983, which provides:
      "Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.”

        Comment (a) to this article states:
      "(a) This provision is new. It is based on Article 3518 of the Louisiana Civil Code of 1870 and on R.S. 9:5801. It does not change the law. Accordingly, Louisiana decisions interpreting the source provisions continue to be relevant, and R.S. 9:5801 is repealed.”

      . This long standing rule has undergone no apparent change, although the reason for the rule was reconsidered in Callais v. Allstate Insurance Co., 334 So.2d 692 (La.1976). In that case, the Supreme Court held that a parent has no general duty to protect a child against the parent’s own death, thereby denying wrongful death damages to a child for the death of her father, whose death was caused solely by his own negligence. Thus, the court phrased the problem in terms of duty-risk rather than imputing the negligence of the decedent to an innocent plaintiff. For a complete discussion, see Professor Johnson’s excellent article, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L.Rev. 1 (1976).
      It should also be noted that the accident occurred on March 7, 1980. Act No. 431 of 1979, rewriting LSA-C.C. Art. 2323 and introducing the concept of comparative negligence, did not become effective until August 1, 1980, and has no application to claims arising before that date. Therefore, any change in the stated rule which might be occasioned by the introduction of comparative negligence has no bearing on this case.


text:
    Alton J. KNIGHT, Individually and as Administrator of the Estate of the Minor, Amy D. Knight, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Defendant-Appellee.
    No. 83-474.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ. Denied April 23, 1984.
    Smith, Ford & Clark, Chris Smith, III, Leesville, for plaintiff-appellant.
    Gachassin & Capretz, Susan Severance, Lafayette, and Laura G. Samuels, in pro per., for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Knight v. Samuel, et al., 447 So.2d 587 (La.App. 3rd Cir.1984), the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.