author: SHORTESS, Judge.

text:
    STATE of Louisiana v. William Brian EDWARDS
    No. 84 KA 0166.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      J. Kevin McNary, Asst. Dist. Atty., Cov-ington, for appellee.
    Oliver F. Johnson, Office of the Indigent Defender, Covington, for appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

William Edwards (defendant) was charged with armed robbery in violation of La.R.S. 14:64, two counts of aggravated rape in violation of La.R.S. 14:42 and aggravated crime against nature in violation of La.R.S. 14:89.1. He pled not guilty. After a jury trial, defendant was found guilty as charged on each count. He was sentenced as follows on each conviction: armed robbery (Count 1) — ninety-nine (99) years at hard labor without benefit of parole, probation or suspension of sentence; aggravated rape (Counts II and III) — life imprisonment at hard labor without benefit of parole, probation or suspension of sentence on each count; and aggravated crime against nature (Count IV) fifteen years at hard labor without benefit of parole, probation or suspension of sentence. Defendant appeals his convictions and sentences. He alleged five assignments of error but has briefed only two, to-wit:

1. The trial court erred in allowing eight (8) peremptory challenges.

2. The trial court erred when it overruled defendant’s challenges for cause as to prospective jurors Lloyd Lala and Joseph Noble.

Those assignments of error not briefed are considered abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4. State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983).

FACTS

On April 15, 1982, at approximately 4:00 a.m., a man entered the Junior Food Store on Highway 190 in Slidell, Louisiana, and proceeded into the back room where the cashier, a young woman, was working. He put his arm around her and covered her mouth with his hand to stop her screaming. He then held a knife to her neck and forced her to open the cash register. He took the money from the register and also searched the woman’s purse for more money. The woman recognized the man as someone who had come into the store earlier that morning. The victim was then forced to get into the man’s car. She was blindfolded and told to lie down on the floor. After riding for a short while, the man forced her out of the car and into a trailer. Here she was allowed to remove the blindfold. The man led her into a bedroom where he forced her to have vaginal and anal intercourse. He also had oral sex with the victim. Upon leaving the trailer, the victim was again blindfolded and put back into the car. When the car got stuck on a gravel road, the man made the victim remove her blindfold and get out to push the car. While at the rear of the auto she saw the license plate number. When the car was freed, she was told to run into the woods and not to come out until he was out of sight. She complied. Eventually she flagged down a car and was taken to the police.

Subsequently, using the license plate number, the St. Tammany Parish Sheriff’s deputies found and arrested defendant. He was positively identified by the victim in an out-of-court physical lineup later that day.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in limiting his peremptory chai1 lenges to eight. The peremptory challenges were reduced from twelve to eight in capital and hard felony cases by La.Acts 1983, No. 495, which amended La.C.Cr.P. art. 799. Defendant argues that the grant of peremptory challenges is a substantive right and that the amendment makes a substantive rather than a procedural change. He argues further that the decrease in the number of peremptory challenges affects his right to a fair trial. Finally, defendant contends that his conviction must be reversed because of the ex post facto application of the amendment.

This issue regarding decreasing the number of peremptory challenges and the same arguments raised by defendant were addressed by this court in State v. Bennett, 454 So.2d 1165 (La.App. 1st Cir.1984). Therein, we held that the applicability of Act No. 495 is determined by the time when the trial commences and not the time when the offense was committed. Although the offenses were committed prior to the effective date of Act 495, we find it was not error for the trial judge to apply the amended language of La.C.Cr.P. art. 799 in effect at the time of trial which allowed only eight peremptory challenges in this case. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the trial court erred in denying his challenge for cause of two prospective jurors.

Prior to La.Acts 1983, No. 181, in order to prove reversible error a defendant need show only two things: (1) that the trial judge erred in refusing to sustain a challenge for cause made by him, and (2) that he exhausted all his peremptory challenges. State v. Glaze, 439 So.2d 605 (La. App. 1st Cir.1983). Act 181, § 1 of the 1983 Regular Session amended La.Code Cr.P. Art. 800. This amendment removed the requirement that a defendant exhaust all peremptory challenges before he can complain of a ruling refusing to sustain a challenge for cause. The trial in this case took place after the effective date of the amendment. Thus, although defendant did exhaust all of his peremptory challenges, he need not show this in order to obtain review of the trial court’s ruling on his challenges for cause.

Both the Federal and State Constitutions provide that a defendant in a criminal prosecution has a right to a trial by an impartial jury. U.S. ConstAmend. VI; La. Const, art. I, § 16. State v. Domino, 444 So.2d 268 (La.App. 1st Cir.1983). In State v. Lewis, 391 So.2d 1156, 1158 (La.1980), the Supreme Court stated that:

the defendant is denied due process of law where circumstances affecting the juror exist which would offer a possible temptation to the average man to forget the burden of proof required to convict the defendant or which might lead hjm not to hold the balance nice, clear and true between the state and the accused.

The trial judge is vested with broad discretion in ruling on a challenge for cause, which ruling will not be disturbed on appeal absent a showing of abuse of that discretion. However, service on a criminal jury by one associated with law enforcement duties must be closely scrutinized and may justify a challenge for cause, although such association does not automatically disqualify a prospective juror. State v. Sylvester, 400 So.2d 640 (La.1981); Lewis, 391 So.2d at 1158; State v. McIntyre, 365 So.2d 1348 (La.1978), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980); State v. Domino, 444 So.2d 268 (La.App. 1st Cir. 1983).

Defendant assigns as error the denial of challenges for cause as to two prospective jurors, Lloyd Lala and Joseph Noble. That part of the assignment regarding Lala was not briefed and is considered abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4; Trevathan.

Defendant specifically argues that Noble’s employment as a police officer for twenty-six years before retirement was sufficient basis for his challenge for cause. He argues further that the denial of the challenge for cause deprived him of one of his peremptory challenges.

Defendant cites Sylvester as authority for his contention that Noble could not serve as an impartial juror due to his law enforcement background. In Sylvester, the defendant attempted to excuse, Landry, a prospective juror for cause but was forced to use a peremptory challenge to exclude him from the jury. Landry worked for twenty-seven years in the police department that investigated the offense in that case. At the time of the trial, Landry’s son was employed by the same department. In addition, he knew and had supervised Sergeant Wagner, the officer responsible for the investigation and a principal state witness. He also worked with three other officers who testified at trial. In deciding whether the trial court’s ruling was correct, the Louisiana Supreme Court looked to the totality of the circumstances, particularly Landry’s long relationship with law enforcement. That court held that it was not reasonable to conclude, despite his manifestations to the contrary, that Landry was capable of serving as an impartial jur- or.

In the instant case, Noble testified that he had been employed as a police officer for twenty-six years before his retirement in 1982. He began with the Baton Rouge Police Department in 1955. He was a detective sergeant in the Slidell Police Department from 1968 to 1972. Then he went to the Baker Police Department until he retired in 1982. He never worked for the St. Tammany Parish Sheriff's Office, the investigating department. During his employment in Slidell, Noble met and worked with Detective Mike Moore of the St. Tammany Parish Sheriff’s Office, who investigated the crime and testified as a witness for the prosecution here. Noble stated that, although he worked with Moore, he could be a fair and impartial juror. In addition, he acknowledged that he had considered whether his law enforcement background would influence his verdict. He stated:

“Like I say, I’ve thought about that a lot today, and I hope it wouldn’t. Like the fellow before me said it’s hard to be a policeman for this long and change over just in one day. But the law is stronger than my feelings, and I’d have to go with the law.”

Furthermore, the trial judge, in denying the challenge for cause, found that Noble had answered truthfully and was able to apply the law.

There was no abuse of the trial court’s discretion in failing to grant defendant’s challenge for cause, and this assignment is without merit.

For the reasons set forth, defendant’s convictions and sentences are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Larry GIBSON.
    No. 84 KA 0228.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Joseph W. Cole, Jr., Asst. Dist. Atty., New Roads, for state-appellee.
    Thomas A. Nelson, Asst. Indigent Defender, New Roads, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Larry Gibson was convicted by a jury of armed robbery in violation of La.R.S. 14:64. The trial court sentenced Gibson to serve twenty-five years in the Department of Corrections without benefit of probation, parole, or suspension of sentence. Gibson appeals the conviction and sentence. We affirm.

On the evening of November 7, 1981, Mrs. Gertrude Bonaventure was in a retail store, Value Bonaventure Store, in Glynn, Louisiana, when two masked black males entered the store. The masks consisted of brown paper bags pulled over their heads with openings for eyesight. One of the men held a small caliber gun on Mrs. Bonaventure and shoved her against the wall. He then went behind the counter and took cash from a cigar box. After removing the cash, the two men quickly fled.

Police summoned to the scene conducted a search of the area but did not locate the perpetrators. However, two paper bags, similar to those used by the perpetrators, were found outside the store. The instant charge was brought' against defendant after latent fingerprint analysis revealed the presence of his fingerprints in the interior of one of the brown paper bags.

ACTION OF THE TRIAL COURT

Appellant was tried and found guilty by a jury. Thereafter, appellant filed a motion for a new trial which, after a hearing, was denied by the trial court and sentence was imposed. Appellant appeals the conviction and the sentence.

ASSIGNMENTS OF ERROR

Defendant brings this appeal urging five assignments of error:

1. The jury erred by convicting the defendant of armed robery solely on the basis of circumstantial evidence which did not exclude every reasonable hypothesis of innocence.
2. The trial court erred in allowing State Exhibit No. 1 into evidence.
3. The trial court erred by failing to grant a mistrial when Detective Jennings David of the Pointe Coupee Parish Sheriffs Office referred to a prior arrest of the defendant in response to a question asked by the prosecutor.
4. The trial court erred by failing to grant defendant’s motion for a new trial.
5.The trial court erred by imposing an excessive sentence.

I.

By means of this assignment, defendant contends that the jury erred by returning a verdict of guilty because circumstantial evidence linking defendant to the instant crime did not exclude every reasonable hypothesis of innocence.

Defendant does not contend that the state did not prove the essential elements of the crime but, rather, failed to negate every reasonable probability of misidentifi-cation.

The standard of review for sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime and defendant’s identity as perpetrator of that crime beyond a reasonable doubt. See La.C.Cr.P. art. 821. The statutory rule as to circumstantial evidence is that assuming every fact proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438. Exclusion of every reasonable hypothesis of innocence is, therefore, a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. State v. Nealy, 450 So.2d 634 (La.1984).

In the instant case, Mrs. Bonaventure was unable to identify her assailants as they wore brown paper bags covering their faces during the robbery. Mrs. Bonaventure did describe the bags worn by the robbers.

The two brown paper bags, with openings torn at eye level, were found in front of the Value Bonaventure Store during initial police investigation immediately following the robbery. These bags were later analyzed for latent fingerprints. Mrs. Sybil Guidry, a latent fingerprint analyst with the Louisiana State Police, testified that four identifiable fingerprints of Larry Gibson were found on one of the bags. Mrs. Guidry further testified that no other identifiable fingerprints were found on that bag.

Defendant attempted to rebut evidence linking him to the instant crime with alibi testimony provided by his two brothers. Defendant’s brothers testified that they were watching a football game in Scotland-ville with defendant during the afternoon of the robbery.

Defendant does not offer a hypothesis of innocence. However, defendant testified at trial on the merits that he often shopped in the Value Bonaventure Store, thereby suggesting that brown paper bags with his fingerprints could be in abundance throughout the community.

However, when the paper bag bearing defendant’s fingerprints is closely examined, the reasonableness of defendant’s hypothesis that someone else fashioned the mask from a bag which had been discarded by defendant quickly erodes. Not only are the only identifiable prints on the bag those of defendant; but, also, defendant’s right thumbprint was identified from well down in the interior of the original bag, adjacent to the border which has been torn in fashioning the mask. Such an impression is not likely to result from carrying or removing items from a bag.

We conclude that the jury properly excluded this hypothesis of innocence as an unreasonable one. Therefore, viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that defendant committed the instant armed robbery.

Assignment of Error Number 1 is without merit.

II. AND IV.

By means of these assignments, defendant urges that the trial court erred in admitting certain exhibits into evidence. Assignment of Error Number 2 addresses the admissibility of State Exhibit Number 1, two brown paper bags, one bearing defendant’s identified fingerprints.

In brief, defendant argues that the state failed to lay a proper chain of custody to support introduction of that exhibit. However, it was not until the lunch recess, after the state had rested its case-in-chief, that defense counsel articulated the reasons for his objection to the introduction into evidence of State Exhibit No. 1.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence and the grounds therefor specified. See La.C.Cr.P. art. 841. Moreover, after reviewing the record, we find that the state laid an adequate foundation for admission of State Exhibit No. 1.

The instant chain of custody is well documented. The only discrepancy was with respect to the date that Deputy David received the item from Deputy Fon-tenot. Deputy Fontenot testified that he immediately went to Deputy David’s house following investigation of the robbery and delivered the item; however, Deputy David recalled that he did not receive the item at the sheriff’s office until the following Monday. To admit such evidence at trial, the identification can be visual or it can be by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. State v. Sweeney, 443 So.2d 522 (La.1983). The law does not require that the evidence as to custody eliminate all possibilities that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is one connected with the case. Id. Any deficiencies in the chain of custody are properly attributable to the weight, rather than to the admissibility of the evidence. State v. Tonubbee, 420 So.2d 126 (La.1982), cert. denied, 460 U.S. 1081, 103 S.Ct. 1768, 76 L.Ed.2d 342 (1983).

By Assignment of Error Number 4, defendant contends that the fingerprint card of “Larry Rogers”, on file with the Louisiana State Police, should not have been admitted into evidence as it was not properly authenticated. However, this argument is meritless by virtue of the fact that the state did not even attempt to offer the card in evidence.

For the foregoing reasons, these assignments of error are without merit.

III.

By means of this assignment, defendant contends that the trial court erred when it failed to grant a mistrial in response to the following colloquy between the prosecutor and the state’s witness, Deputy Jennings David of the Pointe Cou-pee Sheriff's Office:

Q. Did you ever ascertain whether or not the fingerprint card of Larry Gibson was furnished to the Louisiana State Police Crime Lab?
A. I did.
Q. How was that done?
A. It was done by the West Baton Rouge Parish Sheriffs Office.
Q. And why was it done? Who requested that it be done?
A. Well, Larry Gibson was arrested— Q. All right.
A. —and—on a warrant from West Baton Rouge Parish.

In brief, defense counsel argues that Deputy David’s responses are an indirect reference to another crime allegedly committed by defendant thus falling within the scope of conduct proscribed by La.C.Cr.P. art. 770. As a reading of article 770 discloses, its provisions are not authority for defendant’s contention that a mistrial should be ordered. The remark complained of was not made by the judge, district attorney, or a court official. Instead, the remark was made by a police officer testifying as a witness for the state. See State v. Overton, 337 So.2d 1058 (La.1976).

Louisiana Code of Criminal Procedure articles 771 and 775 are applicable to this situation. The following portions of articles 771 and 775 are pertinent:

Article 771
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.
* * * * * *
(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.”
Article 775
A mistrial may be ordered, and in a jury case the jury dismissed, when:
* * ⅜ * * *
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.
* * * * * *
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
* * * # sfc He

Mistrial is a drastic remedy and, except in instances in which mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to defendant depriving him of a reasonable expectation of a fair trial. State v. Overton, supra, at 1064. We note that the defense did not move for an admonition, apparently not wishing to further emphasize the remark.

Although a potentially prejudicial remark by an experienced police officer should be viewed with concern as to fairness of the trial, the decision as to the necessity of granting a mistrial is within the sound discretion of the trial court. State v. Benton, 453 So.2d 993 (La.App. 1st Cir.1984).

Even if reference to prior criminal acts could be inferred in these circumstances, this technical impropriety did not result in the denial of a fair trial or warrant a mistrial, especially in view of the fact that defendant admitted under cross examination that he had been convicted of misdemeanor theft. We find the trial court did not abuse its discretion in refusing to order a mistrial.

For the foregoing reasons this assignment of error lacks merit.

y.

By means of this assignment, defendant contends that imposition of the instant sentence of twenty-five years in the custody of the Department of Corrections, without benefit of probation, parole, or suspension of sentence was excessive.

A trial judge has wide discretion to impose a sentence within statutory limits. State v. Sepulvado, 367 So.2d 762 (La.1979). In the absence of manifest abuse of discretion, a sentence imposed will not be set aside as excessive. State v. Lanclos, 419 So.2d 475 (La.1982). Armed robbery carries a maximum sentence of 99 years without benefit of parole, probation or suspension of sentence.

The record before us reflects that the trial judge adequately considered the sentencing guidelines presented in La.C.Cr.P. art. 894.1 in particularizing the sentence to this defendant. Although defendant was only twenty-one years of age at the time of sentencing, he had a lengthy history of encounters with law enforcement authorities — including a conviction for misdemean- or theft and a pending indictment for conspiracy to commit aggravated escape. The court opined that the defendant was in need of correctional treatment which could be provided most effectively by confinement to an institution.

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

AFFIRMED.

      . Gibson had been previously arrested and fingerprinted under the name of “Larry Rogers.”


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Nolan JAMES, Jr.
    No. KA 84 0351.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Aubert Talbot, Dist. Atty., Napoleonville, for state of Louisiana, plaintiff, appellee.
    Alan Robert, Gonzales, for defendant, appellant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   LOTTINGER, Judge.

On February 12, 1979, Sidney Caswell and his wife, Theresa, picked up defendant who was hitchhiking on I — 10 in Ascension Parish. When their vehicle reached an exit in East Baton Rouge Parish, defendant pulled a gun on the Caswells and ordered them to return him to Ascension Parish. A short time later, defendant shot both of the Caswells. Theresa Caswell died as a result of her injury. Defendant was stabbed by Sidney Caswell but took over operation of the Caswell vehicle. After the vehicle was driven into a ditch in Ascension Parish near the Sorrento town hall, the disabled vehicle, defendant, and the Caswells were discovered by an off-duty sheriffs deputy. Defendant was arrested after Sidney Caswell related these events to law enforcement officers.

Defendant was indicted by grand jury on April 17, 1979 and charged with the first degree murder of Theresa Caswell in violation of La.R.S. 14:30. Defendant pled not guilty to the charge. In court prior to trial, the state amended the grand jury indictment to second degree murder, a violation of La.R.S. 14:30.1. Defendant was found guilty of the amended charge and sentenced to life imprisonment, without benefit of probation, suspension of sentence, or eligibility of parole for a period of forty years. From this conviction defendant urges 28 assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

By means of these assignments, defendant contends that the trial judge erred in allowing the prosecutor to amend the grand jury indictment, which charged defendant with first degree murder, to a charge of second degree murder.

Art. 1, § 15 of the 1974 Louisiana Constitution provides “that no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by grand jury.” Under the law applicable to defendant, second degree murder is a crime punishable by life imprisonment and, therefore, is a crime the prosecution of which must be instituted by a grand jury. State v. Stevenson, 334 So.2d 195 (La.1976).

However, the right of district attorneys to amend indictments to charge lesser offenses has been recognized by our courts. State v. Gilmore, 332 So.2d 789 (La.1976). The state may abandon the charge for a lesser crime and no formal indictment is necessary for that purpose. State v. Edwards, 287 So.2d 518 (La.1973).

In this case the prosecutor properly amended the indictment in open court before trial began to a legislatively designated responsive offense. La.Code Crim.P. art. 814. Amending the indictment from first degree murder to the lesser charge of second degree murder did not prejudice the defendant’s constitutional right to have a grand jury institute prosecution for that crime. State v. Stewart, 389 So.2d 1321 (La.1980).

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial court erred in denying defendant the right to assist in his defense and act as co-counsel in the actual trial.

However, assignment of error number 3 was not briefed and is thereby considered abandoned. Uniform Rules Courts of Appeal, Rule 2-12.4.

ASSIGNMENTS OF ERROR NOS. 4 AND 6

By means of these assignments, defendant contends that the trial court erred by allowing the district attorney to give his interpretation of the law by long statements and quotes during voir dire examination.

La.Code Crim.P. art. 786 provides that the court, the state, and the defendant shall have the right to examine prospective jurors and the scope of the examination shall be within the discretion of the court. Louisiana courts have recognized that the purpose of voir dire examination is to determine qualifications of prospective jurors by testing their competency and impartiality. It is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. The scope of voir dire examination is within the sound discretion of the trial judge and his rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Murray, 375 So.2d 80, 82 (La.1979).

During voir dire examination, the prosecutor read La.R.S. 14:30.1, the statute defining the crime of which defendant was charged. Such a reading was proper in order to ascertain from the prospective jurors whether they entertained objections to enforcing the law governing second degree murder. State v. Bradford, 298 So.2d 781 (La.1974).

The prosecutor also sought to explain the concept of general and specific criminal intent as it relates to this particular charge. Unlike defense counsel, we note no error with the prosecutor’s characterization of the necessary mental state of defendant which the state must demonstrate.

When the voir dire examination is considered as a whole, we find no abuse of discretion on the part of the trial judge. The trial court has wide discretion in these matters and we do not feel the trial court has prejudiced defendant’s case.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 5

By means of this assignment, defendant contends that the trial court erred in allowing the state to make an incorrect statement of the mandatory sentence which would be imposed if defendant were convicted of second degree murder. Defendant argues that the jurors were misled by the prosecutor’s explanation following his reading of the applicable portion of the statute.

Our review of the record indicates that on three separate occasions during voir dire examination, the prosecutor read the applicable sentencing portion of the statute verbatim. Prospective jurors might have been misled when the prosecutor interpreted the sentencing provision to mean: “... [the] accused could be or would necessarily be sent to the penitentiary for no less than forty years and possibly his full life...”. However, even an improper statement of the law during voir dire does not always require reversal. State v. Koh-ler, 434 So.2d 1110 (La.App. 1st Cir.1983).

Any error was remedied by the following factors:

(1) The jury venire was present during argument between the district attorney and defense counsel when the objectionable portion of the state’s characterization was clarified.

(2) After having been instructed by the trial judge to correctly state the law, the district attorney rephrased his remark as follows:. “And what I’m simply saying is a sentence is life imprisonment. That’s what the sentence is. And the man is not even eligible for parole for forty years.”

(3) The trial court gave the jury a correct and proper charge prior to their deliberation.

For these reasons, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends that the trial court erroneously excused a prospective juror, Mr. Frederick, for cause.

Following extensive questioning by both the district attorney and defense counsel, Mr. Frederick expressed continuing reluctance to find defendant guilty, even if all elements of the crime were established beyond a reasonable doubt, because of the harsh sentence which would be mandated by such a determination. Mr. Frederick’s answers even to questions designed to rehabilitate were qualified by uncertainty.

The prospective juror thus indicated that he may not be able to accept the law given to him by the court. La.Code Crim.P. art. 797(4). The trial court correctly weighed Mr. Frederick’s total performance during the examination. State v. Albert, 414 So.2d 680 (La.1982). There was no abuse of discretion in excusing this prospective juror for cause. See also: La. Code Crim.P. art. 787.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 8

By means of this assignment, defendant contends that the trial court erred by allowing the district attorney to read only a portion of a criminal statute during voir dire thereby misleading prospective jurors as to the law.

The record reveals that after the prosecutor read section one of La.R.S. 14:20, justifiable homicide, defense counsel objected that the entire statute had not been read. Immediately after the objection, the prosecutor read the remaining portions of that statute. We fail to see in what manner the jury may have been misled or defendant could have been prejudiced.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 10

By means of this assignment, defendant contends that the trial court improperly limited the scope of defendant’s opening statement.

In State v. Bell, 263 La. 434, 268 So.2d 610 (La.1972) on rehearing, the Louisiana Supreme Court noted that our present Code of Criminal Procedure does not lay down rules for defendant’s opening statement. La.Code Crim.P. arts. 766 et seq. apply only to the state. However, when defense counsel avails himself of the opportunity to make an opening statement under La.Code Crim.P. art. 765(4), the statement must be confined to an explanation of the nature of the defense and the evidence by which he expects to establish it. Wide discretion is vested in the trial judge in his control of the opening statement to confine it within these limits. Id.

In the instant case, the state objected that defense counsel was not explaining the nature of the defense or outlining the evidence which he expected to offer when defense counsel stated:

But basically the state will have one witness, Mr. Sidney Caswell, who is the husband of the person who was killed. And to be totally honest with you, he is a liar. And he’s going to lie to you when he testifies.

The state’s objection was properly made. As the trial judge correctly noted, defense counsel was exceeding the scope of the opening statement and was arguing his case to the jury.

Accordingly, the trial court did not abuse its discretion in sustaining the objection.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS.

9, 11 AND 13

By means of these assignments, defendant contends the trial court erred: by not granting a mistrial when the district attorney systematically used his peremptory challenges to exclude blacks from the petit jury; by failing to quash the jury venire because a representative number of blacks were not included; and by failing to quash the instant grand jury indictment because Ascension Parish has never had a black foreman of a grand jury.

A defendant is not denied equal protection when the state exercises its peremptory challenges to exclude black persons in a particular case, unless there has been a systematic exclusion of them over a period of time. Defendant must establish a prima facie showing of such systematic exclusion before the state is required to show the exercise of its peremptory challenges was not discriminatory. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Brown, 371 So.2d 751 (La.1979).

Defendant has failed to meet this burden. He relies primarily upon the fact that four of the state’s five peremptory challenges excluded black persons and has produced no evidence of a history of systematic exclusion. Additionally, it is undisputed one black person served on the jury.

Defendant also argues the jury venire did not represent a fair cross section of the community. The Sixth Amendment guarantees a criminal defendant the right to an impartial jury selected from a group representing a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the United States Supreme Court stated that in order to establish a prima facie violation of the fair-cross section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepre-sentation is due to systematic exclusion of the group in the jury-selection process.

Defendant has failed to demonstrate any violation of this Sixth Amendment right. After selection of this petit jury, defense counsel put of record his observation that black persons were underrepresented in the venire. However, defendant failed to sustain a prima facie showing as there was no proof as to what portion of the venire was black or that any alleged underrepresentation was due to systematic exclusion.

Finally defendant urges that the grand jury which indicted him was not properly constituted because there has never been a black appointed as foreman of a grand jury in Ascension Parish. He argues that under Guice v. Fortenberry, 661 F.2d 496 (5th Cir.1981) appeal after remand 722 F.2d 276 (5th Cir.1984), once he established a prima facie showing of racial discrimination in the selection of the grand jury foreman the burden shifted to the state to show that no discrimination was present. Guice v. Fortenberry, supra, adopts the test established in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), to determine the necessity for federal relief from discrimination affecting a grand jury, the prerequisites being:

(1) The petitioner must establish that the group against whom discrimination is asserted must be a recognizable, distinct class singled out for different treatment;
(2) The petitioner must prove the degree of underrepresentation by comparing the total population to the proportion called to serve as foreman over a long period of time and;
(3) The petitioner must support the presumption0 thus created by showing that the selection procedure is susceptible to abuse or is not racially neutral.

In the instant case, defendant has established the first part of the Castaneda test as the black race is a recognizable distinct class which has been singled out for different treatment. However, proof of the second element for a prima facie showing is lacking, and therefore the presumption has not been established.

The Castaneda test requires that defendant demonstrate the degree of underrepre-sentation by comparing the proportion of the group in the total population to the proportion called to serve over a significant period of time.

Defendant introduced statistical abstracts to show that blacks make up 27% of the total population of Ascension Parish. He does not establish the number of grand juries which have been convened, nor the number of foreman appointed. In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739, (1979) this statistic was considered most important in establishing a prima facie case.

For the foregoing reasons, these assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 12 AND 28

By means of these assignments, defendant contends that he was denied his constitutional right to a speedy trial and that, in the alternative, the time limits for commencement of trial had prescribed. The right to a speedy trial is guaranteed by both the federal and state constitutions. U.S. Const. Sixth Amendment; La. Const, art. 1, § 16 (1974). The right attaches when an individual becomes an accused, either by formal indictment or bill of information or by arrest and actual restraint. State v. Nowell, 363 So.2d 523 (La.1978).

In the present case, defendant was arrested by police on February 12, 1979, and formally indicted by a grand jury on April 17, 1979. Trial on the merits did not commence until June 28, 1983.

In determining whether this constitutional right has been violated, no fixed time period is determinative; rather, the conduct of both the prosecution and the defense are weighed in light of several factors: the length of the delay; the reason for the delay; the defendant’s assertion of his right; and the actual prejudice to defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Nowell, supra.

There is no question but that the delay in the instant case, on its face, appears to be inordinate. However, the inquiry into whether a defendant’s constitutional right to a speedy trial has been violated does not end with such a finding. The peculiar circumstances of the case will determine the weight to be ascribed to the length of the delay and the reasons for the delay. State v. Reaves, 376 So.2d 136 (La.1979).

The next factor to be considered in the speedy trial analysis is the reason for the delay. On April 23, 1979, shortly after defendant was indicted, he filed a motion to quash the indictment and various other pretrial motions which were heard by the trial court on May 1, 1979. That motion to quash was overruled by the trial court on March 24, 1981.

During this period, defendant was represented by retained counsel, Murphy Bell. Both Bell and district attorney, Aubert Talbot, testified that negotiations with respect to plea bargaining were actively pursued. However, Mr. Bell had difficulty communicating with defendant particularly with respect to the need of entering a plea of not guilty and not guilty by reason of insanity. In addition, a detainer from the District of Columbia had issued against defendant; Mr. Bell, at defendant’s request, sought defendant’s voluntary departure to face those charges prior to moving forward with the instant prosecution.

When it appeared that a plea bargain could not be reached, defendant was arraigned on March 24, 1981. Defendant pled not guilty and not guilty by reason of insanity and orally moved for a sanity commission.

Another motion to quash and motion for speedy trial were filed by defendant on March 30, 1981. Trial on the merits was set for April 14, 1981, but was continued with defendant’s admittance to the Felicia-na Forensic Unit on April 23, 1981.

On June 19, 1981, after hearing testimony of members of the sanity commission, the trial judge found that defendant had the requisite capacity to proceed to trial. However, during the summer of 1981, Mr. Bell suffered a heart attack rendering him physically unable to undertake the rigors of a long trial. On November 13, 1981, Alan Robert was appointed by the trial court to represent defendant. Application for a bill of particulars was filed on December 17, 1981; and numerous pre-trial motions, including a third motion to quash, were filed on June 2, 1982.

Following defendant’s evaluation by a second sanity commission, the trial judge found, on July 16, 1982, that defendant had the requisite capacity to proceed to trial. A hearing on all pending pre-trial motions was held on August 5, 1982; the trial judge ruled on those motions on October 22,1982.

From various rulings of the trial court, including denial of the June 2, 1982 motion to quash, which grounds included speedy trial and prescription, defendant applied for writs to this court. Defendant’s application for writs was denied on December 8, 1982. As noted above, trial on the merits commenced on June 28, 1983.

The delay in bringing defendant to trial was due to various circumstances peculiar to this case, including: health problems of retained counsel; numerous pre-trial motions which included the appointment of two sanity commissions; aborted attempts at plea bargaining; difficulty in reaching agreement on trial strategy between defendant and his retained counsel; and desire by defendant to face charges pending in the District of Columbia, prior to being tried on the instant charge. There was no showing that the state deliberately postponed the trial in order to gain a tactical advantage over the defendant.

The third factor to be considered under Barker v. Wingo, supra, is whether or not the defendant asserted his constitutional right to a speedy trial. The record reflects that defendant filed one such motion, pursuant to La.Code Crim.P. art. 701, on March 30, 1981. As noted above, trial on the merits was then set for April 14, 1981. Reasons necessitating continuance of that trial date, as documented by our discussion above, were not chargeable to the state.

Finally, we must consider whether or not the defendant was prejudiced by the delay. No actual impairment of defendant’s ability to prepare his case, the most serious form of prejudice normally experienced by an accused whose trial is delayed, has been documented. Defendant generally avers to inability to locate potential unknown witnesses to an alleged argument between defendant and the Caswells. However, failure to identify and locate these alleged individuals is not chargeable to the state where defendant was aware of the charges against him a short time after the incident and immediately retained counsel to represent him. In addition, a detain-er issued by the District of Columbia served as an independent basis for interference with defendant’s liberty.

Defendant alternatively contends that prescription barred prosecution when trial on the merits was not commenced within two years from the date of institution of the prosecution as required by La.Code Crim.P. art. 578. However, as noted above, defendant filed numerous preliminary pleas which suspended the running of prescription until ruled upon. The state is afforded a minimum period of one year after a ruling to commence the trial, La.Code Crim.P. art. 580. The trial commenced on June 28, 1983, well within a year of the last ruling on several defense motions. Accordingly, the plea, of prescription was correctly overruled.

For the foregoing reasons, these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 15

By means of this assignment, defendant contends that the trial court erred when it failed to sequester the jury although defendant requested that this be done.

La.Code Crim.P. art. 791 requires sequestration, before the trial court’s charge, only in capital cases. Had the state elected to proceed under the first degree murder charge, compliance with the procedural rules applicable to capital prosecutions would have been required. However, the trial court was not required to sequester the jury in this non-capital, second degree murder prosecution.

In the alternative, defendant contends that the jury should have been sequestered to avoid contact with prejudicial media coverage. During voir dire, the trial court allowed extensive questioning to determine prospective jurors’ exposure to any media coverage of this incident. The district attorney, defense counsel, and the trial court agreed to dismissal of any prospective juror who was familiar with the contents of a newspaper article which had appeared on the first morning of the trial. Moreover, the trial court repeatedly charged the jury to avoid reading any newspaper articles, watching television reporting, listening to radio broadcasts or discussing the case among themselves or with others. There is no showing that the jury disregarded the judge’s instructions and thereby prejudiced the defense.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 17, 19, 20, 21 AND 22

By means of these assignments, defendant contends that the trial court erred when it limited the introduction of demonstrative evidence and testimony relative to post traumatic stress syndrome experienced by some Vietnam combat veterans.

Our review of the record indicates that defendant was afforded ample opportunity, through the testimony of experts and individuals who had served in Vietnam with defendant, to present his personal combat experiences and description of the symptoms of this particular disorder to the jury.

In sustaining the state’s objection to showing of the film “Good Morning Vietnam”, a commercially produced film which was viewed by the trial court, the court noted that defendant did not appear in the film nor did the film depict defendant’s own combat experience. The court further noted that scenes in the film that appeal to emotions and prejudice far outweigh whatever redeeming features the film might have in explaining the disorder. It was within the sound discretion of the trial court to refuse to allow the jury to view the film. State v. Sharp, 418 So.2d 1344, (La.1982).

Similarly, the trial court did not err in refusing to permit other witnesses to testify concerning their own personal combat experiences.

In matters of relevancy the trial court has broad discretion, and no reversible error is shown by these rulings. Id.

Accordingly these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends that the trial court erred when it failed to grant a mistrial based on alleged prejudicial remarks made by the prosecutor in the presence of the jury.

The record reveals that during voir dire the prosecutor did mention that defendant had been indicted for first degree murder although the instant prosecution was for second degree murder. An objection to alleged prejudicial remarks or conduct of the prosecutor must be contemporaneous. State v. Anderson, 333 So.2d 919 (La.1976); La.C.Cr.P. art. 770. Objection to the instant remark was not put of record by defense counsel until a later recess by the court.

“The contemporaneous objection rule exists, not only so that a trial judge may correct the error at the time it is made, but it also serves notice in the record that the complained of conduct was so noticeable as to create prejudice in the minds of those observing it, i.e., the trier of fact.” State v. Miles, 450 So.2d 1067 (La.App. 1st Cir.1984).

La.Code Crim.P. art. 770(2) expressly mandates mistrial, on the basis of remarks concerning another crime, only where evidence of such crime would not be admissible at trial. In the instant case, the first and second degree murder charge derive as a different characterization of the same conduct, i.e. the homicide of Theresa Caswell. State v. Washington, 407 So.2d 1138 (La.1981).

Moreover, mistrial is a drastic remedy and, except in instances in which mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to defendant depriving him of a reasonable expectation of a fair trial. State v. Miles, supra. The lateness of defense counsel’s request for a mistrial, and the fact that the reference to amendment of the indictment was clearly not so prejudicial as to cause this defendant to be denied a fair trial leads to the conclusion that this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 16

Defendant contends that the trial court erred by allowing the District Attorney to testify at trial without admonishing the jury.

The instant objection arose as to the following colloquy between the District Attorney and defense expert witness, Dr. James Freeman:

Q. Dr. Freeman, the pathologist would not see the clothes of the victim, normally; would that be true?
A. No. Not true. In our group and in most forensic pathology groups they insist on receiving the body clothed just for these type of determinations. And then the materials of clothing are turned over to the sheriffs office with a receipt.
Q. These people didn’t ask for them, Dr. Freeman. Would that mean they’ve made some other mistakes besides not catching powder burn?
A. I would not ask the the, I would insist they be there all the time. I would—
Q. But these people did not ask for them, and they didn’t get them is what I’m saying.

The prosecutor’s statement was testimonial in nature and defense counsel’s objection to the district attorney’s testifying in this case, was properly sustained. No other relief was requested by defense counsel contemporaneously with his objection. If an objection is sustained, defendant cannot on appeal complain of the alleged error unless at trial he requested and was denied an admonition to disregard or a mistrial. State v. Michel, 422 So.2d 1115 (La.1982). Moreover, the jury was otherwise made aware of the substance of the prosecutor’s statement, that state’s experts had not previously examined Theresa Cas-well’s clothing for powder burns, during rebuttal expert testimony.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 18

By means of this assignment, defendant contends that the trial court erred by allowing Dr. Aries Cox, a forensic psychiatrist, to testify as to the differences between the federal and Louisiana standards for establishment of a verdict of not guilty by reason of insanity.

The test for competency of an expert is his knowledge of a subject about which he is called upon to express an opinion. La.R.S. 15:466. The competence of a witness to testify as an expert is a question of fact within the sound discretion of the trial judge and his rulings on this subject will not be disturbed unless clearly wrong. State v. Coleman, 406 So.2d 563 (La.1981).

Dr. Cox was qualified as an expert in forensic psychiatry without objection. He also testified that he was co-instructor of a forensics course taught at Tulane University School of Law. Dr. Cox was one of three mental health professionals who examined defendant in aid of determining his mental capacity as a plea of insanity had been entered. During the process of explaining his expert opinion, that defendant was not legally insane at the time of the instant offense, Dr. Cox referred to the Louisiana statutory standard provided in La.R.S. 14:14. In addition, Dr. Cox referenced the John Hinkley prosecution in the federal court system and explained that his appreciation of the federal statute was that it differed from the Louisiana standard.

Defense counsel does not contend that Dr. Cox’s explanation was an incorrect statement of the law but, rather, that it exceeded his qualified area of expertise. We do not feel that allowing Dr. Cox to testify on the differences in the applicable Louisiana standard and federal standard for insanity was- clearly error since it may have helped to promote a proper understanding of the legal test involved and upon what Dr. Cox based his decision. Further, we'do not find that discussing the insanity standard under federal law prejudiced defendant’s case.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS.

23, 24 AND 25

Defendant contends that the trial court erred when it permitted the state to present evidence of scientific testing after the state had rested its case in chief.

• We pretermit discussion of the prosecution’s right to rebut evidence adduced by the defendant. Defense counsel’s objections at trial were on the relevancy of the test results and competence of the witness and not the proper scope of the state’s rebuttal evidence. A new basis for objection cannot be raised for the first time on appeal. State v. Fowlkes, 352 So.2d 208 (La.1977).

For the foregoing reasons these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 26

By means of this assignment, defendant argues that the state’s evidence failed to prove that he was engaged in the perpetration or attempted perpetration of one of the felonies enumerated in La.R.S. 14:30.1 when Theresa Caswell was killed.

The standard of review for sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Review of the record indicates that there was sufficient evidence from which the jury could have concluded that defendant was engaged in the perpetration or attempted perpetration of aggravated kidnapping at the time Theresa Caswell was shot and killed.

The statute defining aggravated kidnapping, La.R.S. 14:44, provides in pertinent part:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:

(1) The forcible seizing and carrying of any person from one place to another....

The record supports the conclusion that defendant forcibly seized and transported the victims from one place to another. Sidney Caswell testified in pertinent part:

We got as far as the Seigen Lane exit at Baton Rouge. [Defendant] said that he was carsick, and wanted to get out of the car. And when I pulled over to let him out, my wife opened the door and he had a gun to her head and said if I didn’t turn around and bring him back where I picked him up he was going to blow her brains out.

On cross examination Sidney Caswell further testified:

Q. Now at this point, you testified in your earlier hearing, that you offered [defendant] the car, you offered him money, you offered him anything he wanted, he says he didn’t want any of that; is that correct?
A. That’s right.
Q. And he told you, according to your testimony, that he didn’t want to hurt anybody, just to turn around and drive him back to where you picked him up; that’s your testimony.
A. That’s right.

The scope of the phrase “anything of apparent present or prospective value” in the aggravated kidnapping statute is the general broad definition of “anything of value” provided in La.R.S. 14:2(2). State v. Dupre, 369 So.2d 1303 (La.1979). La.R.S. 14:2(2) provides:

“Anything of value” must be given the broadest possible construction, including any conceivable thing of the slightest value, moveable or immovable, corporeal or incorporeal, public or private, and including transportation, telephone and telegraph services, or any other service available for hire. It must be construed in the broad popular sense of the phrase, not necessarily as synonymous with the traditional legal term “property”. In all cases involving shoplifting the term “value” is the actual retail price of the property at the time of the offense.

The record supports the additional conclusion that defendant forced the Caswells, by use of a gun, to give up “anything of value,” i.e., to convey him free of charge on his return journey to Ascension Parish. Sidney Caswell’s testimony reveals that defendant refused to release the Caswells in exchange for money or their car. Defendant insisted that the Caswells remain with him until he was transported to his destination. Finally, the record reveals that Theresa Caswell was shot by defendant, dying as a result of those gun shot wounds, while enroute to defendant’s destination.

For the foregoing reasons, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 27

Defendant’s twenty-seventh assignment of error is that the state did not prove venue beyond a reasonable doubt. This assignment of error is without merit. La. Code Crim.P. art. 612.

Therefore, the conviction and sentence are affirmed.

AFFIRMED.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Peggy LILLY.
    No. KA 84 0354.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Granted Feb. 8, 1985.

      Ossie Brown, Dist. Atty., by Ernest Smithling, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

Peggy Lilly was indicted by a grand jury on August 26,1980, charged with the negligent homicide of her infant son, a violation of La.R.S. 14:32. She pled not guilty, waived trial by jury, and was tried by the judge alone. The trial judge found defendant guilty as charged and sentenced her to five years imprisonment in the custody of the Louisiana Department of Corrections.

In bringing this appeal, defendant urges three assignments of error:

1. The trial court committed error when it found the defendant guilty of negligent homicide based on insufficient evidence.

2. The trial court committed error when it imposed an excessive sentence.

3. The trial court committed error when it denied defense motion for directed verdict of acquittal.

Assignment of Error Number 2 was not briefed and is thereby considered abandoned. Uniform Rules — Courts of Appeal 2-12.4.

On August 14, 1980, defendant’s eight day old son died. The infant had been home, in defendant’s care, for five days immediately preceding his death. During the morning of August 14, 1980, the infant’s paternal grandmother asked Avis Hutchinson, a nurse’s aide and sister of defendant’s common law husband (the natural father of the infant), to view the baby. When defendant would not allow Mrs. Hutchinson to examine the baby closely, Mrs. Hutchinson went to a neighbor’s house and called the fire department. The firemen who responded to the call transported the baby to Baton Rouge General Hospital where he was pronounced dead. An autopsy report later revealed that the infant had died as a result of pneumonococcal meningitis. Defendant was arrested after law enforcement authorities determined that defendant had not attempted to procure medical assistance for the critically ill infant prior to his death.

ASSIGNMENTS OF ERROR NUMBERS 1 AND 3:

By means of Assignments of Error Numbers 1 and 3, defendant contends that the state’s evidence was insufficient to support her conviction.

La.C.Cr.P. art. 778 provides that in a trial before a judge alone, the court shall enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. The applicable standard for reviewing sufficiency, whether raised by formal assignment or motion for acquittal, is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proven beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La. App. 1st Cir.1983).

The crime of negligent homicide is defined as the “killing of a human being by criminal negligence.” La.R.S. 14:32. Criminal negligence is defined in La.R.S. 14:12 as follows:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of cafe expected to be maintained by a reasonably careful man under like circumstances.

The Reporter’s Comment to La.R.S. 14:32 lists within the scope of that article the “death of a child or other helpless person caused by the gross neglect of one charged with his custody and care.”

Direct evidence as to the condition of the infant during the days immediately prior to his death was provided by testimony of Scott Jones, defendant’s older son who was eleven years of age at the time of trial, and James Jones, defendant’s common law husband.

Scott Jones testified that he did not remember seeing his mother feed the baby and he often changed the diapers. He also remembered that the baby cried a great deal and vomitted a couple of times. However, Scott testified that he was not at home during most of the five day period directly preceding the infant’s death.

James Jones, the infant’s natural father, testified that the baby appeared fine on the afternoon prior to his death. He also testified that he never saw the baby vomit and observed him take a bottle feeding on several occasions.

The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984), reversed in part on other grounds, 452 So.2d 1178 (La.1984). In oral reasons provided by the trial court in denying defendant’s motion for acquittal, Scott Jones’ testimony was discounted as providing no insight into the baby’s condition prior to his death. Scott was only seven years of age at the time and had spent a very short time in the home when the baby was present. The trial court also discounted James Jones’ testimony as totally incredible.

Earl K. Long Hospital records introduced at trial, showed that the baby, who was born on August 6, 1980, was in good physical condition when discharged from that facility on August 9, 1980. During the morning of August 14, 1980, the baby was observed at defendant’s home by Sergeant Callihan of the East Baton Rouge Parish Sheriff’s Office, by Avis Hutchinson, the baby’s aunt, and by Kenneth Mizell, a fireman. Kenneth Mizell testified that he observed several sores on the baby’s body and that the baby appeared to be dead at the time of his arrival at defendant’s home following Mrs. Hutchinson’s call for assistance. Apparently, none of these witnesses observed the baby prior to his death.

Defendant contends that her conviction is based on circumstantial evidence insufficient to support the judgment. The statutory rule as to circumstantial evidence is that assuming every fact proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. State v. Nealy, 450 So.2d 634 (La.1984).

We must look to the inferences made by the trier of fact based on circumstantial evidence and these inferences need only exclude all reasonable hypotheses, not every possible theory of innocence. State v. Jackson, 419 So.2d 837 (La.1982). We feel in this case that this burden has been met.

The testimony of Dr. James Freeman, a pathologist who assisted in the autopsy of the baby, was extensively relied on by the trial court in denying defendant’s motion for acquittal. In pertinent part, the trial judge stated he was convinced from Dr. Freeman’s testimony that the child must have manifested severe symptoms several days prior to his death. These symptoms would have included: failure of the child to eat; a high fever, in excess of one hundred and three degrees; projectile vomiting; and bulging of the soft tissue of the child’s head. Further, defendant, as the primary provider of care for the child, failed to observe or react to those symptoms and such failure to act directly resulted in the death of the child. The causal link was based on the testimony of Dr. Freeman that he had successfully treated each of ten similar cases encountered in his private practice.

The trial court properly dismissed as unreasonable the hypotheses that no significant symptoms were manifested by the newborn child prior to his death or that defendant’s failure to seek medical care did not constitute gross negligence. For the foregoing reasons these assignments of error are without merit.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

      . The child when autopsied had observable markings in the facial and wrist areas. However, these body sores were not a consideration in the trial court’s findings. There was no evidence as to who might have abused the child nor was there any evidence that the sores contributed in any way to the child’s death.

      . Defense counsel submitted the case after the state had rested and the trial court had denied his motion for acquittal. The trial court thereafter adopted the oral reasons for denying direefed verdict of acquittal in support of the guilty verdict.

      . In addition, the child had lost ten per cent of his body weight during the eight days of his life.


author:
WATKINS, Judge.
      CRAIN, Judge,

text:
    STATE of Louisiana v. Donald JOHNSON.
    No. KA 84 0362.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Ossie Brown, Dist. Atty., by Samera Abide, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Donald R. Johnson, Sr. was charged by bill of information with one count of possession of pentazocine, a controlled dangerous substance, classified in Schedule II, in violation of LSA-R.S. 40:967 C(l). Defendant withdrew his original plea of not guilty, pled guilty as charged, and was subsequently sentenced to a term of three years imprisonment in the custody of the Louisiana Department of Corrections. We affirm.

The record reveals that, during the evening of March 9, 1983, two police officers were patrolling in the fifteen hundred block of 43rd Street when they were approached by a young man who stated that someone was fighting with his mother. The officers proceeded to the scene of the fight and arrested defendant for battery on the young man’s mother. While patting down defendant, incident to the arrest, the officers discovered a syringe in defendant’s right sock. The syringe contained a white powdery substance which was later confirmed by the Louisiana State Police Crime Lab to be pentazocine.

In bringing this appeal, defendant urges that the trial court violated the sentencing guidelines of LSA-C.Cr.P., art. 894.1 (Assignment of Error No. 1) and that the sentence imposed was excessive (Assignment of Error No. 2).

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, defendant asserts that the trial court failed to follow the guidelines of art. 894.1 by not specifically listing for the record defendant’s personal history. However, this lack of specificity in itself does not render the sentence invalid because the record clearly illuminates the sentencing choice. State v. Smith, 430 So.2d 31 (La.1983); State v. Davis, 440 So.2d 818 (La.App. 1st Cir.1983).

Defendant further asserts that the trial court incorrectly considered his prior arrests. However, we find that the trial court did act properly. The type of criminal activity a court may consider in a sentencing proceeding is not limited to prior convictions or by the rules of evidence. State v. Washington, 414 So.2d 313 (La. 1982); State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983).

ASSIGNMENT OF ERROR NO. 2:

In his second assignment of error, defendant asserts that the sentence imposed was excessive. We disagree. The standard of review to be exercised by an appellate court is circumscribed by rather narrow limits. A trial judge has wide discretion to impose a sentence within statutory limits. State v. Sepulvado, 367 So.2d 762 (La.1979). In the absence of manifest abuse of discretion, the sentence imposed will not be set aside as excessive. . State v. Lanclos, 419 So.2d 475 (La.1982).

Generally a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than needless imposition of pain and suffering. State v. Thomas, 432 So.2d 325 (La. App. 1st Cir.1983). A sentence is considered grossly disproportionate if one’s sense of justice is shocked when comparing the punishment in light of the harm done to society. Id. at page 327.

The sentencing exposure for violation of LSA-R.S. art. 40:967 C(l) with respect to pentazocine is imprisonment with or without hard labor for not less than two years and not more than five years and an optional fine of not more than five thousand dollars.

The record reflects that the trial court ordered a presentence investigation report and adequately contemplated the sentencing guidelines of LSA-C.Cr.P., art. 894.1. In pronouncing sentence the court noted:

... [yjou’ve been given ample opportunities in the past by the Courts to straighten up your life. And you have failed to take advantage of these prior periods of probation. You continued to violate the criminal laws of this state. It’s felt that your attitude and your character at this time indicates that you would be likely to commit other crimes were you given probation ... I find no grounds tending to excuse or justify your conduct... I don’t find that addiction to [drugs] justifies your continued violation of the Louisiana criminal laws. I find no provocation and, as such, I feel that there is an undue risk that ... you would commit another offense. I feel that a lesser sentence would deprecate the seriousness of your crime. And I feel you are in need of correctional treatment within a custodial environment.

We cannot say that the sentence imposed is excessive under the circumstances. Defendant has a long juvenile and adult criminal record. He is a third felony offender whose behavior has not been positively altered by supervised probation granted for prior convictions. We find that the trial judge fully considered the range of sentencing alternatives and individualized the sentence to the particular defendant for the particular crime involved.

These assignments of error are without merit.

AFFIRMED.

CRAIN, J., concurs and assigns reasons.

CRAIN, Judge,

concurring.

After having pled guilty as charged to possessing a Schedule II controlled dangerous substance, Pentazocine, in violation of La.R.S. 40:967(1), and having been sentenced to three years at hard labor with the Department of Corrections, defendant appeals his sentence. I concur that the sentence is not excessive. However, I would dismiss the appeal ex proprio motu.

The appropriate entry of a plea of guilty, which would include a proper Boykin examination, waives appellate review of all non-jurisdictional defects in the proceedings prior to the plea. State v. Torres, 281 So.2d 451 (La.1973), State v. Foster, 263 La. 956, 269 So.2d 827 (1972). Non-jurisdictional defects can be raised on appeal after a guilty plea if the defendant makes a specific reservation of right to appeal those defects. State v. Crosby, 338 So.2d 584 (La.1976).

A valid Boykin examination which will serve as an appropriate basis for a guilty plea must obtain from the defendant a waiver of right to trial by jury, a waiver of right to confront accusers and a waiver of the privilege against self-incrimination. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). Since the waiver of appellate review of non-jurisdictional defects is not necessary to a valid guilty plea, such waiver is thus implicit in the guilty plea although not specifically obtained.

There has been some consternation in the courts as to whether a guilty plea properly taken waives a right to appeal a subsequent sentence. In State v. Williams, 340 So.2d 1382, 1383 (La.1976) (partially overruled on other grounds in State v. Cox, 369 So.2d 118 (La.1979) the Louisiana Supreme Court held that entering of a valid- guilty plea does not waive post-plea errors. Thus, a defendant who pled guilty could still appeal the subsequently imposed sentence.

An additional problem then arose where the guilty plea was subject to an agreed upon sentence. In a whole line of cases the Louisiana Supreme Court held that the sentence was not subject to review where it was agreed upon in entering the guilty plea. Cf. State v. Gray, 404 So.2d 1215 (La. 1981). Then in State v. Jett, 419 So.2d 844 (La.1982) the Supreme Court acknowledged the rule it had adhered to, but then reviewed the sentence anyway. Subsequent to Jett, supra, this circuit appears to have concluded that a guilty plea coupled with an agreed upon sentence that is made part of the record waives right to appellate review of the sentence, but where there is no specific agreement in the record as to sentence it will be reviewed on appeal. State v. Benton, 432 So.2d 334, (La.App. 1st Cir.1983), State v. Buckenberger, 428 So.2d 966 (La.App. 1st Cir.1983).

All of the cases cited above deal with the waiver of rights that are implicit in plea of guilty. None deal with the situation where a defendant, in entering a guilty plea, specifically waives the right of appeal, or additionally, as in this case, not only waives the right to appeal in general but specifically waives the right to appeal the sentence, even though the sentence is not agreed upon in the plea.

In this case the following colloquy occurred on entering of the guilty plea:

The Court: also should you go to trial today and be found guilty at the conclusion of the trial whether by jury or judge you would then have the right to appeal your conviction and sentence to higher courts, the First Circuit Court of Appeal, the Louisiana Supreme Court and the Federal Courts. But by pleading guilty, if I accept your plea of guilty, your case will not be reviewed by other courts. Do you realize you are giving that right up? Mr. Johnson: Yes sir.

There is a distinction between an explanation of what is being waived by entering the guilty plea, which would include appellate review of non-jurisdictional defects, and a specific waiver of what otherwise would not be waived. Sentence review would not be waived by entering the guilty plea. Consequently, in the view of this writer when the trial court included waiver of sentence review in its Boykin colloquy it asked for and received a waiver of review that exceeded that which was implicit in the guilty plea.

Where there is a specific waiver of right to appeal a subsequent sentence upon entering a guilty plea, there is no right to appeal the sentence. This rule should apply whether or not the sentence is agreed upon in entering the plea.

A defendant would not be deprived of a right of appellate review of an unconstitutionally excessive sentence by such ruling. However, where appeal rights are waived such review would be under the supervisory jurisdiction of this court from an application for post conviction relief. La.C. Cr.P. art. 931.3(1), State v. Davis, 457 So.2d 848 (La.App. 1st Cir.1984).

I respectfully concur with the result.

      . The trial judge need not articulate every aggravating and mitigating circumstance to comply with guidelines of LSA-C.Cr.P., art. 894.1. State v. Grey, 408 So.2d 1239 (La.1982).

      . Jurisdictional defects are “those which even conceding the accused’s factual guilt, do not permit his conviction of the offense charged.” State v. Crosby, 338 So.2d 584 (La.1976). Under this definition the sentence cannot be a jurisdictional defect.

      . We note in Jett, 419 So.2d at 852 the Supreme Court concluded that "our review of possible constitutional error is not absolutely precluded by a defendant’s agreement to plead guilty or to receive a particular sentence.”
      The Supreme Court has not said that this review has to be by appeal rather than post conviction relief.

      . In a plea bargaining situation where a primary concern is to move the defendant into the State prison system to relieve local jail conditions a waiver of sentence review is a real and valid concern for the state making a plea agreement. As long as a defendant is not misled as to the sentence that can possibly be imposed, or to the sentence that will be imposed, there is no reason why a waiver of review of sentence by appeal cannot be secured. Post conviction relief furnishes adequate safeguards for a defendant who has been mislead in entering a plea. La.C.Cr.P. art. 924, et seq. Local authorities have been thwarted in their efforts to comply with federal guidelines for prison population by defendants who enter guilty pleas knowing what the possible sentence will be, and in some cases knowing what the actual sentence will be, and then appealing. The appeal leaves the trial judge with the unpalatable alternative of bonding the defendant rather than further crowding the local jail.

      . For benefit of trial courts we note a majority of this panel agrees with this view, but simply does not feel that in this case the facts support a finding that this defendant was specifically waiving his right to appeal his sentence.

      .A defendant must always be protected against a deprivation of constitutional rights. Consequently, where there is a claimed deprivation there must be a procedure for having the claim reviewed by appellate courts. However, that review does not necessarily have to be by appeal. Failure to comply with statutory delays in the criminal law must result in some sanction that gives effect to valid legislative requirements, and yet protects the accused’s constitutional privileges. State v. Davis, supra, attempts to reach this balance when legislatively established appeal delays are ignored without cause. Additionally, a defendant who knowingly and constitutionally waives the right of appeal must waive something. Ultimately in order for the criminal justice system to be fair and just both to the accused and to society a single, thorough review of a criminal proceeding must be sought as an obtainable goal. The first step is to enforce delays and adhere to waivers, without ignoring constitutional rights. Where a defendant waives appeal of a sentence as part of a guilty plea the waiver should not be ignored. At the same time, review of claimed abuse of constitutional rights in this area is adequately provided for by post conviction relief.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. Daryl MORRISON.
    No. KA 84 0378.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Ossie Brown, Dist. Atty., by Joseph Lot-wick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Daryl Morrison, was charged with possession of Phenmetrazine (Prelu-din) in violation of LSA-R.S. 40:967(C). Initially, defendant pled not guilty. After a preliminary hearing, the trial court ruled there was probable cause to hold defendant as charged. Subsequently, a motion to suppress was submitted on the testimony and evidence presented at the preliminary hearing. The trial court denied this motion. Reserving his right to appeal that ruling, defendant withdrew his not guilty plea. After a Boykin examination, the trial court accepted defendant’s guilty plea. Defendant was sentenced to three years at hard labor and ordered to pay court costs. The sentence of incarceration was suspended and defendant was placed on supervised probation for two years subject to several conditions. Defendant was ordered, as a condition of his probation, to pay $200.00 to the Louisiana Victim’s Compensation Fund. He now appeals his conviction and sentence, alleging the following assignments of error:

1. The trial court erred by denying the motion to suppress.
2. The trial court erred by failing to explain the meaning and consequences of classification as a felony offender.

Assignment of error number two was not briefed and therefore is considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4.

Defendant contends that the trial court erred in denying his motion to suppress the evidence seized at the time of his arrest.

The motion to suppress was submitted on testimony presented at the preliminary hearing. The only witnesses at the hearing were two police officers. Evidence adduced reveals that at about 8:00 p.m. on March 14, 1983, officers Michael Dickinson and Bart Thompson of the Baton Rouge City Police Department were on patrol in an unmarked police car. Officer Dickinson testified that as he and his partner stopped at the intersection of Cain and 38th Streets in Baton Rouge, they saw several black males standing on the corner in front of a service station and convenience store. He noticed one man, later identified as Daryl Morrison, take a item out of his right pocket, drop it to the ground and kick it under a vehicle parked nearby. The officer stated that he drove into the station and retrieved the dropped matchbox which contained pink tablets. This substance was later determined by crime lab tests to be phenme-trazine (preludin). Officer Dickinson also testified that he and his partner were about ten yards away and still in their car when defendant kicked the matchbox under the vehicle. Officer Thompson’s testimony was slightly different. He stated that they were pulling into the service station when defendant threw down an object and kicked it under the car. The officer then exited the car; Officer Thompson detained defendant while Officer Dickinson retrieved the matchbox.

The Fourth Amendment to the U.S. Constitution and La. Const, art. I, § 5 protect against unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983). The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. Andrishok, supra at p. 391.

When police officers make an investigatory stop without legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. State v. Bethley, 452 So.2d 367 (La.App. 1st Cir.1984). If, however, the property is abandoned without any prior unlawful intrusion into a person’s right to be free from government interference, then such property may be lawfully seized. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied — U.S. -, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Bethley, supra. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights. As our courts have previously held, “it is only when the citizen is actually stopped without reasonable cause or when that stop is imminent that the right to ‘be let alone’ is violated.” State v. Ryan, 358 So.2d 1274, 1276 (La.1978).

The crucial inquiry is whether, at the time defendant threw down the matchbox containing the phenmetrazine, the police officers had effected an actual or imminent unlawful detention.

We do not find the officers’ conduct in the instant case to be intrusive. The officers did not even exit their car and approach defendant until after he threw down his matchbox. Even accepting the testimony by Officer Thompson that the matchbox was thrown down when the car pulled into the station, there was no violation of defendant’s rights. By just driving into the parking area of a service station/eonve-nience store the officers did not intrude upon or restrict defendant’s freedom of activity or movement.

Defendant could not expect to carry contraband and drop it with impunity when he saw an approaching police officer. There is no expectation of privacy when property is abandoned and no constitutional prohibition against seizure of abandoned property. State v. Bethley, supra.

Thus, this assignment of error is without merit.

PATENT ERROR

We note that the trial judge illegally ordered defendant to pay $200.00 as a special condition of probation to the Louisiana Victim’s Compensation Fund.

At the time of defendant’s offense, March 14,1983, LSA-C.Cr.P. art. 895.1 provided that:

When a court suspends the imposition of the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
(1) To the victim in restitution to compensate for his loss and inconvenience.
(2) To the indigent defender program for that court.
(3) To the criminal court fund to defray the costs of operation of that court.
(4) To the sheriff and clerk of court for costs incurred.

Further, the Crime Victims Reparations Act, Acts 1982, No. 250 § 1, designated as LSA-R.S. 46:1801 et seq., created the Crime Victims Reparations Fund. Neither LSA-C.Cr.P. art. 895.1 nor the Crime Victims Reparations Act authorize, as a condition of probation, a fine of $200.00 to be paid to the “Louisiana Victims’ Compensation Fund,” as ordered in this case. See LSA-R.S. 46:1801, et seq. LSA-R.S. 46:1816 D does, however, authorize a district court to assess a $50.00 fine in felony criminal actions which result in a conviction. State v. Kleinpeter, 449 So.2d 1043 (La.App. 1st Cir.1984), on rehearing, writ denied, 450 So.2d 661 (1984). This fine is to be paid by the defendant and deposited in the Crime Victims Reparation Fund.

The trial court may, at any time during the probation period, change the conditions of probation. LSA-C.Cr.P. art. 896; State v. Sandifer, 359 So.2d 990, 992 (La.1978). Accordingly, the sentence is affirmed but the illegal condition vacated. We remand for reconsideration in light of sentencing options available at the time of defendant’s offense.

CONVICTION AFFIRMED, SENTENCE AFFIRMED BUT CONDITION OF PROBATION ORDERING PAYMENT TO THE LOUISIANA VICTIM’S COMPENSATION FUND VACATED, REMAND FOR RECONSIDERATION OF CONDITIONS OF PROBATION.

      . State v. Crosby, 338 So.2d 584 (La.1976).