author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. James Lee COLVIN, Appellant.
    No. 15966-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Rehearing Denied July 6, 1984.
    Writ Denied Oct. 5, 1984.

      Hargrove, Guyton, Ramey & Barlow by Paul A. Strickland, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Carey T. Schimpf, Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   HALL, Judge.

James Lee Colvin was charged with Armed Robbery in violation of LSA-R.S. 14:64 by bill of information filed August 27, 1982. After trial by jury, defendant was found guilty as charged and was sentenced to serve 80 years at hard labor without benefit of parole, probation, or suspension of sentence. He appealed, urging reversal of his conviction and sentence on the basis of 12 assigned errors.

On July 12, 1982, a man entered the Sausage & Cheese Store on Line Avenue in Shreveport. The man, who was armed with a gun, approached the cashier and asked her what time it was. While holding the gun on her he told her it was time to “hit the register” and demanded that she open the cash drawer and give him the money. A male employee handed over the money from the cash drawer. The armed man remained in the store approximately ten minutes threatening the four employees with the gun and forcing them to lie on the floor. At one point during the robbery, he pressed the gun firmly to the forehead of a female employee. Another woman employee was grabbed by the man and thrown to the ground.

On July 26, 1982, defendant was arrested by the Shreveport Police Department on an unrelated charge. Subsequently, a lineup was conducted and each of the four employees of the Sausage & Cheese Store identified defendant as the armed robber.

Defendant initially pled not guilty but later changed his plea to not guilty and not guilty by reason of insanity. A motion for a sanity hearing was filed on October 6, 1982. The Sanity Commission returned their reports and the district judge determined after a hearing that the defendant was competent to stand trial.

ASSIGNMENTS OF ERROR NO. 3, 8, and 9:

Since these assignments of error were not briefed nor argued, they are considered abandoned. State v. Wright, 445 So.2d 1198 (La.1984).

ASSIGNMENT OF ERROR NO. 1:

Defendant asserts as error the trial court’s denial of his motion for further testing after a court-appointed Sanity Commission found him competent to stand trial. He sought to determine by further tests whether he suffered from temporal lobe epilepsy. As asserted after trial, defendant’s contention relates both to his defense of insanity at the time of the offense and to his capacity to understand the nature of the proceedings against him and to assist in his own defense.

Four doctors were appointed by the court to examine defendant. However, only three reported as defendant refused to be examined by one of the doctors. One doctor stated in his report that although the defendant manifested abnormal or unusual behavior, he could not definitely state that defendant had a mental disorder or deficiency which would render him incapable of cooperating with his attorney or that he had any mental disorder at the time of the commission of the offense with which he was charged. Another doctor included the details of his interview with Colvin in his report, recounting Colvin’s auditory hallucinations and delusions and concluded that Colvin was incompetent to stand trial.

The third doctor conducted the most extensive investigation of Colvin’s prior medical history. After his initial interview with defendant, the doctor concluded that although Colvin exhibited noticeably bizarre behavior, he appeared to be faking or malingering, warranting further study before diagnosis or recommendation as to his capacity to proceed to trial. After further review of Colvin’s records, the doctor found that psychological testing demonstrated evidence of faking or malingering and noted that the results of an electroencephalogram and brain scan were normal. He then concluded that defendant was mentally competent to stand trial and further concluded that he was able to distinguish right from wrong at the time of the offense.

After the motion for further testing was made, the trial court determined that further testing was unnecessary and found the defendant capable of standing trial. Defendant made an application for writs to this court, which was denied. This court held that the record showed that a full and complete sanity hearing was held and the evidence therein supported the finding of the trial court of defendant’s capacity to proceed. We adhere to the original ruling of this court that the findings of the sanity commission were complete.

Mental incapacity to proceed must be shown by the defendant by a clear preponderance of the evidence. The trial judge’s determination of capacity to stand trial is entitled to great weight. State v. Machon, 410 So.2d 1065 (La.1982). Due process and statutory law require that the issue of defendant’s mental capacity to proceed shall be determined by the court. This cardinal principle permits the court to receive the aid of expert medical testimony but prohibits it from committing the ultimate decision of competency to a physician or anyone else. The court also may not base its decision solely upon an expert’s conclusion which has no rational basis in the facts contained in the record of the contradictory hearing. State v. Rogers, 419 So.2d 840 (La.1982).

If defendant is indigent and forced to rely exclusively upon the findings of the court-appointed sanity commission rather than a private physician of his own choice, he is entitled to a thorough examination, and ought not be responsible for any lack of diligence by the commission appointed to examine him. State v. Coco, 371 So.2d 803 (La.1979). A defendant must, however, present evidence to support his contention that physical tests are indispensable. State v. Bastida, 310 So.2d 629 (La.1975).

For purposes of the insanity defense, the burden is on the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense. The defendant must show that he suffered from a mental disease or defect which rendered him incapable of distinguishing right from wrong with reference to the conduct in question. LSA-R.S. 14:14; State v. Hamilton, 441 So.2d 1192 (La.1983).

Although defendant had the burden of establishing his incapacity to proceed and his insanity at the time of the offense, defendant has not shown that further testing would have resulted in evidence of either insanity at the time of the offense or incapacity to assist in his own defense. Although there was an indication of possible temporal lobe epilepsy in defendant’s medical history, Dr. E.H. Leatherman, one expert who was called on the defendant’s behalf, testified that a person suffering from a temporal lobe epileptic seizure would not have sufficient motor coordination to drive to a store with a gun, and threaten and rob its occupants. Further, defendant makes no claim that he was unable to understand the nature of the proceedings against him or assist in his defense because of this condition.

Since the testing done by the Sanity Commission was thorough and adequate and the defendant failed to carry his burden of showing that further testing was necessary, the trial court’s refusal to grant the motion was correct and this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2:

Defendant complains that prejudicial error occurred when his oral motion to have leg irons, handcuffs, and transport belt removed during trial was denied.

The standards for judging the propriety of use of restraints in the courtroom was explained in State v. Wilkerson, 403 So.2d 652 (La.1981), as follows:

“Ordinarily, a defendant before the court should not be shackled or handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); State v. Clark, 340 So.2d 208 (La.1976); State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976). However, exceptional circumstances may require, within the discretion of the trial court, the restraint of the prisoner for reasons of courtroom security or order or where the prisoner’s past conduct reasonably justifies apprehension that he may attempt to escape. State ex rel. Miller v. Henderson, supra; State v. Daniel, 297 So.2d 417 (La.1974).
“If the handcuffing is objected to at the time of trial, for a finding of reversible error the record must show an abuse of the trial court’s reasonable discretion resulting in clear prejudice to the accused. State ex rel. Miller v. Henderson, supra.

The record reflects that defense counsel made a motion to remove the leg restraints, handcuffs and transport belt from defendant during trial. After ascertaining that no prospective jurors were present in the courtroom, the trial judge heard evidence on the motion. The State presented Harry Gaskey, Deputy of the Caddo Parish Sheriff’s Department, who testified that Colvin had been restrained because of prior misbehavior in court and during transportation. He also noted that Colvin had attempted to escape twice to his knowledge. Additionally, Gaskey testified that Colvin made aggressive statements towards the judge in court at an earlier time and had to be forcibly removed from the courtroom.

To assure that the defendant’s restraints were handled in the least obtrusive manner possible, the judge stated his intention to have defendant brought in and seated in the courtroom before the jury arrived. Likewise, the judge stated that the jury would be removed each day before Colvin left so that the restraints would not be obvious. The judge noted that both defendant’s handcuffs and leg irons were partially concealed by the suit he was wearing when he arrived at court. Defendant had removed the coat before argument and the judge stated that he would allow a brief recess to allow Colvin to retrieve his coat. The defendant refused. Later in his instructions, the judge told the jury not to be prejudiced by the fact that the defendant was shackled and handcuffed during the trial.

The record establishes exceptional circumstances requiring restraint of the defendant for reasons of courtroom security and order. The trial court’s discretion was reasonably exercised. Since the trial court was justified in refusing to allow removal of defendant’s restraints, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4:

Defendant submits that certain statements from the state’s rebuttal witness, Dr. Paul Ware, were so prejudicial as to warrant a mistrial under LSA-C.Cr.P. Art. 771.

At trial, Dr. Ware testified as follows:

“Q. And are you saying that the best thing for his mental welfare and survival is not to be rescued from the consequences?
“A. That is the best things in terms of trying to make recommendation for his therapy, nothing to do with the law. He needs to be dealt with with facts and figures, and suffer the consequences of his actions. As long as he continues to manipulate the system, he will continue to hold onto to the belief that, T can do that, I’m different and I’m special and I should be considered different.’ There is no way that he can change with that happening. ⅜
“Q. Does that include the possibility of conviction and/or incarceration?
“A. Definitely, conviction and incarceration, all of the leaders in the treatment of anti-socials. They say they must go to jail. They must serve their time. We will treat them while they are in there in the closed system, but they must go and serve their time. They must pay the consequences for their behavior. They never had.”

No objection was made contemporaneously with the testimony. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. LSA-C.Cr.P. Art. 841. We also note that the statement does not relate to the defendant’s guilt or innocence of the crime charged, but is the doctor’s professional opinion as to the treatment for antisocial personalities. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 5:

Defendant asserts that the trial court erred by not instructing the jury that the crime of armed robbery required specific intent.

No objection to the proposed jury instructions appears in the record. Since a contemporaneous objection by the accused is a necessary prerequisite to appellate review on an alleged inadequate jury charge, this assignment also lacks merit. State ex rel. Ross v. Blackburn, 403 So.2d 719 (La.1981); State v. Mitchell, 319 So.2d 357 (La.1975). Notwithstanding the procedural deficiencies of this claim, we note that it also lacks substantive merit. The trial judge defined armed robbery in his charge and further defined each element of the crime. He gave the definition of theft, an element of armed robbery, and noted that an intent to permanently deprive is an essential element of that crime. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 6:

Assignment of Error No. 6 addresses the claim that defendant was denied effective assistance of counsel at his trial.

As appellant correctly notes in his brief, the issue of ineffective assistance of counsel is more properly raised by post-conviction attack, rather than by direct appeal. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Pres- tridge, 399 So.2d 564 (La.1981); State v. Brown, 384 So.2d 983 (La.1980); State v. Malveaux, 371 So.2d 820 (La.1979); State v. Duplantis, 367 So.2d 858 (La.1979). State v. Barnes, 365 So.2d 1282 (La.1978), explains that the basis of this rule is to allow a district judge in a proper case to order a full evidentiary hearing.

Recently, the Louisiana Supreme Court has announced an exception to the rule that no claim of ineffective assistance of counsel will be entertained on direct appeal. In State v. Ratcliff, 416 So.2d 528 (La.1982), the trial court held a hearing on a motion for new trial containing an allegation of ineffective counsel. Because the claim was explored in detail by the trial judge and the record disclosed the evidence needed to decide the issue, the Supreme Court addressed the question in the interest of judicial economy. Ratcliff was followed in State v. Burkhalter, 428 So.2d 449 (La.1983), where the Supreme Court found that no evidentiary hearing was necessary for determination of the effectiveness of trial counsel as review of defendant’s ineffective assistance of counsel claim could be made on the record.

Both the First and Third Circuits have, however, distinguished Ratcliff In State v. Buckenburger, 428 So.2d 966 (La.App. 1st Cir.1983), the First Circuit in a footnote recognizes Ratcliff but distinguishes it on the basis that the record in Ratcliff was sufficient for deciding the issue, but the present record reflected that the issue was not explored in detail below. The Third Circuit held that in the absence of a record sufficiently addressing the claim of ineffective counsel, an assignment of error based on such a claim presented nothing for review. State v. Willis, 438 So.2d 605 (La.App. 3d Cir.1983).

The defendant in the present case filed a pro-se motion for new trial. Along with other claims, he alleged that he was denied effective assistance of counsel. The trial judge denied this portion of the motion, explaining that trial court’s representation of defendant did not fall below the constitutional minimum level. At the hearing on the motion, the judge summarized the actions of trial counsel in representing defendant. He stated that medical records were obtained and reviewed by the members of the Sanity Commission. Defendant was additionally examined by another physician retained by trial counsel. Witnesses were called by counsel to testify in defense and counsel cross-examined the State’s witnesses. Counsel testified at the hearing, recounting the witnesses he had called. He also explained that his basic trial strategy was to show that defendant was psychotic at the time of the robbery. However, the court refused to allow defendant or his mother, who had hired trial counsel, to speak on this portion of the motion.

Defendant complains that trial counsel was ineffective in three specific respects: that trial counsel depicted defendant as a drug addict, a violent person, and a criminal, and allowed the state to do the same without objection; that trial counsel failed to make contemporaneous objections and move for a mistrial in numerous situations where the circumstances clearly required that such action be undertaken to protect defendant’s rights; and that trial counsel failed to thoroughly question witnesses before and at trial.

We note that trial counsel’s strategy was to establish that defendant was psychotic at the time of the commission of the offense and his trial tactics were generally consistent with that theory. We refrain, however, from addressing defendant’s claim of ineffectiveness of counsel at this point. We believe that the merits of defendant’s claim of ineffective representation cannot be adequately assessed on the basis of the record before us. The hearing on the motion for new trial was limited and defendant was represented at that hearing by the same counsel he, pro se, claimed to be ineffective.

The record in this case is not sufficient to base a finding of counsel’s competence or incompetence. Defendant can raise the issue in an application for post-conviction relief where the possibility of a full eviden-tiary hearing exists to explore the issue of counsel’s competence at trial.

ASSIGNMENT OF ERROR NO. 7:

Defendant claims that the denial of his motion for new trial on the basis of newly discovered evidence was error.

In a motion filed pro se, Colvin alleged that he should be granted a new trial on the basis of newly discovered evidence that he and Benny Brinkley were picked up by defendant’s aunt, Martha Vassallo and her brother, John Bishop, at about 1:30 on the day of the robbery. He alleged that his aunt would testify that he was extremely intoxicated and had a bottle of alcohol with him. Brinkley had a gun. Colvin alleges that Vassallo would testify that she and Bishop took defendant and Brinkley to the Raven Bar on Mansfield Road and dropped them off. There, she allegedly saw defendant produce a handful of pink pills, a test tube and a hypodermic syringe. The defendant then melted down the pills and injected it into his vein. Colvin alleges that this testimony as to his condition and mental state hours before the robbery was relevant and justified the granting of a new trial.

The trial court denied the motion, as Martha Vassallo was available as a witness at trial. The trial judge ruled that the evidence was not newly discovered in the sense contemplated by LSA-C.Cr.P. Art. 851(3).

To grant a motion for new trial based on newly discovered evidence, the defendant must show that the evidence was not discovered before or during the trial despite the exercise of reasonable diligence, and that had the evidence been introduced at trial the jury probably would have returned a different verdict. State v. Bell, 377 So.2d 275 (La.1979). The test applied is not whether a new jury might return a different verdict, but whether the additional evidence is so material that it ought to present a different result. State v. Chapman, 410 So.2d 689 (La.1981); State v. Naas, 409 So.2d 535 (La.1981), cert. denied 457 U.S. 1119, 73 L.Ed.2d 1332, 102 S.Ct. 2933. The decision of the trial judge regarding the newly discovered evidence is accorded great weight and should not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Spell, 399 So.2d 551 (La.1981).

At the hearing on the new trial motion, it was determined that Martha Vas-sallo was present in the courtroom during the trial. Allegedly, the defendant because of his intoxicated state did not remember being picked up by his aunt. Defense counsel stated that when he questioned Mrs. Vassallo she only corroborated other testimony as to Colvin’s drug usage and drinking. He claimed that the information concerning drug usage on the day of the robbery was not brought to either his or his client’s attention until after the trial.

In State v. Ratcliff, supra, the Supreme Court ruled that evidence defendant discussed with her attorney at trial was not newly discovered evidence within the meaning of LSA-C.Cr.P. Art. 851(3). Likewise, the alleged available testimony in the present case does not appear to be “newly discovered” within the contemplation of the code article because it might have been elicited from defendant’s aunt, who was available at trial and questioned by defense counsel. Further, if the evidence is considered new evidence it is highly doubtful that its introduction would produce a different verdict. Each of the four employees of the Sausage & Cheese Shop testified that the man who entered the store with the gun and demanded money did not appear intoxicated but was steady on his feet and did not smell of alcohol. The trial judge specifically found that even if the evidence had been introduced, it was questionable whether a different verdict would have been reached. The trial judge did not abuse his discretion in denying the motion for new trial on the basis of newly discovered evidence and, accordingly, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 10:

Defendant claims that error occurred when he was sentenced less than 24 hours after denial of his new trial motion without having waived that delay in contravention of LSA-C.Cr.P. Art. 873.

This delay period may be waived by defendant but this waiver must be expressed in the record. State v. Kelly, 375 So.2d 1344 (La.1979); State v. Sykes, 364 So.2d 1293 (La.1978). The minutes of court reflect that defendant was convicted on April 28, 1983. Thereafter, on May 27, 1983, the defendant filed a motion for new trial and motion in arrest of judgment. These motions were argued and denied. The same day, a supplemental motion for new trial and motion in arrest of judgment were filed and sentencing was set for June 2, 1983. On that day, argument was had on the motions. They were denied and defendant was sentenced.

Until recently, the jurisprudence was strict in mandating remand for reimposition of sentence when the 24 hour delay rule of Art. 873 was violated. See for example State v. Kelly, supra; State v. Young, 337 So.2d 1196 (La.1976). However, the Supreme Court in State v. White, 404 So.2d 1202 (La.1981) refused to remand for compliance with Art. 873, noting:

“Although C.Cr.P. Art. 873 unequivocally requires the trial court to delay imposition of sentence for a period of at least 24 hours after denial of post-trial motions, there has been no objection raised regarding the sentence imposed in this case and no showing or suggestion that defendant was prejudiced by the failure to observe the delay_
“... The time lapsed between the defendant’s conviction, March 18, 1980, and the date on which sentence was finally imposed, May 30, 1980, was substantial. There are no indications that defendant’s sentence was hurriedly imposed without due consideration. Indeed, the minutes of March 18, 1980 reflect that a pre-sen-tence investigation was ordered.
“A remand would only serve to lengthen unnecessarily the already substantial delays involved in this case and would in no way further the goal of achieving a fair and just decision on either verdict or sentence. It is illogical for this court to remand for the reimposition of sentence merely because there is an ‘error’ in the minutes’ lack of an affirmative waiver of the 24-hour delay. Just as nonprejudicial violations of the accused’s statutory rights do not mandate reversal, an error in procedure which does not affect the fundamental fairness of the process does not necessarily require reversal and remand, unless prejudice is shown.”

Although the lack of compliance with LSA-C.Cr.P. Art. 873 was noticed by the Supreme Court in White as an error patent and not as an assigned error, the requirement that the defendant show prejudice in order to obtain relief applies to cases where the defendant assigns as error a lack of sentencing delay and complains of his sentence, as in the present case. The defendant in State v. Brogdon, 426 So.2d 158 (La.1983), assigned as error the failure to comply with sentencing delay and complained of his sentence. The Supreme Court found that the record indicated that the delays had been met by the trial court but noted in dicta, citing White, that failure of the trial court to wait the entire 24 hour period before imposing sentence was harmless error absent a showing that the failure to observe the delay caused the defendant to suffer some actual prejudice. The White requirement that the defendant must show actual prejudice was cited with approval by this court in State v. Keleman, 444 So.2d 1328 (La.App. 2d Cir.1984). See also State v. Freeze, 438 So.2d 1340 (La.App. 3d Cir.1983).

Defendant fails to allege any prejudice to his rights resulting from the trial judge’s failure to observe the 24-hour sentencing delay. To the contrary, the record shows that more than a month elapsed between his conviction and imposition of sentence. A pre-sentence investigation was additionally prepared. Further, the record reflects that after the hearing on the first motion for new trial held on May 27, 1983, the Court stated that because he was aware that defendant wanted a delay between overruling of the motion and sentencing, he would set the sentencing date for June 2, 1983. Considering the foregoing, no prejudice to defendant’s rights occurred as a result of the trial judge’s failure to observe the 24 hour delay after the denial of the supplemental motion for new trial before imposing sentence. This assignment, therefore, is without merit.

ASSIGNMENT OF ERROR NO. 11:

Defendant claims that his sentence to serve 80 years at hard labor without benefit of parole, probation, or suspension of sentence is excessive.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir. 1983); State v. Square, 433 So.2d 104 (La.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

In his detailed sentencing reasons, the trial judge emphasized the fact that the defendant terrorized the victims of the armed robbery. He noted that a lengthy sentence was necessary based on the instant facts so that the seriousness of the offense was not deprecated. The judge also expressed his belief that if defendant was not incarcerated for a substantial period of time, he would commit another offense.

At sentencing, the defendant failed to indicate remorse or regret, which fact was noted by the trial judge. The Court found no factors present in the record which would mitigate the circumstances of the offense. He found that there was an obvious threat of serious harm created by the defendant’s conduct and that defendant must have contemplated this possibility of serious harm.

The trial judge stated that neither the defendant’s drug use or his claim of insanity mitigated the danger he posed to society. He found from the medical evidence presented at trial that defendant was antisocial and extremely dangerous and pointed out that even his family was frightened of him. He specifically stated that Colvin knew the difference between right and wrong.

Defendant’s lengthy criminal history, consisting of adult and juvenile offenses including both state and federal charges, was emphasized by the trial judge. Considering the defendant’s criminal record, as well as his propensity for violence as demonstrated by the trial transcript, the judge did not abuse his discretion in sentencing defendant, a third felony offender, to 80 years at hard labor.

ASSIGNMENT OF ERROR NO. 12:

By this assignment, defendant argues that his pre-sentence investigation contains inaccurate and highly prejudicial information which was relied upon by the judge in sentencing him and which he had no opportunity to review and explain.

Trial counsel objected at trial to Colvin’s sentence but made no request to review or counter any unfavorable information contained in the pre-sentence investigation. Appellate counsel suggests that no request was made because trial counsel was unaware that a pre-sentence investigation was prepared. However, it is noted that the trial judge referred to the report in his sentencing reasons.

The defendant must be given the opportunity to rebut substantially significant false information which is relied upon by the trial court in imposing a heavy sentence. State v. Underwood, 353 So.2d 1013 (La.1977); State v. Trahan, 367 So.2d 752 (La.1978); State v. Roberts, 427 So.2d 1300 (La.App. 2d Cir.1983). However, in the absence of a timely request for the report and a showing that false information was included in the report, there is no error in the Court’s failure to give a copy of the report. State v. Grey, 408 So.2d 1239 (La.1982); State v. Boone, 364 So.2d 978 (La.1978), cert. denied 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31.

Previously, it was noted that no request to see the report was made by defendant’s trial attorney. Furthermore, although defendant submits that the summary of his criminal activity given by the judge at the sentencing hearing was inaccurate and misleading because the judge erroneously concluded that the defendant was arrested and convicted more times than his actual record reflects, no inaccuracies appear to exist. The summary was taken by the judge from the pre-sentence investigation. The pre-sentence investigation tracks the FBI rap sheet.

Defendant also claims that it has come to his attention that the report contains a threat by the defendant on the life of the trial judge, which threat defendant denies ever having made. The probation officer who handled the investigation into Colvin’s background stated that Colvin told him to “tell the judge that when I get out of here, I am going to give him the same thing he gives me.” When asked to clarify the statement, Colvin stated, “I intend to give him a case of lead poisoning.”

The trial judge does not rely on this threat in his reasons for sentencing, but does, however, note defendant’s propensity for dangerous behavior. Later, when considering trial counsel’s request to withdraw as counsel of record, the judge granted the request, stating that defendant had sought throughout the proceedings to intimidate his lawyer, the court, the psychiatrists who interviewed him, and everyone else he had come in contact with since his arrest.

In a previous assignment, it was brought out that Colvin had to be removed from the courtroom because of aggressive comments directed towards the judge. Additionally, Colvin informed the Court that trial counsel would be unavailable for the sentencing hearing on June 2, 1983 “because I am going to have him shot.”

Since defense counsel did not request a copy of the presentence investigation or an opportunity to explain or rebut the information contained therein; because the information on his criminal record appears to be accurate; and since the record fully documents the defendant’s propensity for violence and verbal threats, this assignment lacks merit.

The record discloses no error which warrants reversal. Accordingly, the conviction and sentence of defendant are affirmed.

Affirmed.


source: Caselaw Access Project

author: NORRIS, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Charles JACKSON, Appellant.
    No. 16164-KA.
    Court ‘of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      J. Rush Wimberly, III, Arcadia, for appellant.
    William J. Guste, Jr., Atty. Gen., John C. Blake, Dist. Atty.; H. Russell Davis, Asst. Dist. Atty., Arcadia, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   NORRIS, Judge.

Defendant, Charles Jackson, appeals a jury conviction of manslaughter in violation of La.R.S. 14:31 and a resulting sentence of eighteen years at hard labor assigning four errors:

(1) The State of Louisiana failed to meet its burden of proving beyond a reasonable doubt that the killing was not perpetrated in self defense, and that the homicide was not justified;
(2) The State of Louisiana failed to meet its burden in proving that a homicide was committed;
(3) The sentence given to the defendant was excessive in violation of United States Constitutional Amendment VIII and Louisiana Constitution of 1974, Article I, Section 20; [and]
(4) The Court failed to sustain numerous objections during the course of the trial and thereby prejudiced defendant’s right to due process under United States Constitutional Amendment 5 and Louisiana Constitution of 1974, Article 1, Section 16.

FACTS

During the evening of September 11, 1982, six people, including the defendant and the victim, William Curtis Brown, met at Logan’s Place, a nightclub located in Shiloh, Louisiana. After deciding to go to Sheppard’s Inn, another nightclub, the group left Logan’s Place in separate cars to leave the vehicle owned by one of the females. At the residence where the vehicle was left, the defendant and Johnny Lee Boston began arguing; however, this argument ceased prior to the group’s leaving in one vehicle for Sheppard’s Inn. The group was seated in the vehicle as follows: Seve-tra Combs was in the driver’s seat; Octavian Cockerham in the front middle seat; the defendant in the front passenger seat; Brown in the left rear passenger seat; Ann Venzant in the middle back seat; and Johnny Lee Boston in the right rear passenger seat.

During the drive to Sheppard’s Inn, the defendant and Brown began to argue. However, the occupants of the car managed to convince them to cease their arguing. When the group arrived at Sheppard’s Inn, the driver stopped the vehicle on the opposite side of the highway from the club. Brown then reached over the seat of the car and cut the defendant on his head. Brown then exited the vehicle pursued by the defendant and a fight ensued with the defendant striking Brown several times with his fists and rendering him unconscious. Thereafter, the defendant, who was wearing sneakers, was pulled off of Brown, who remained unconscious in the ditch. However, the defendant broke free and began stomping Brown in the head and face until he was again pulled away.

Brown, still in an unconscious state, was then taken to the Bienville General Hospital in Arcadia, and later transferred to the LSU Medical Center in Shreveport by ambulance. Upon his arrival at the LSU Medical Center, Brown was examined and his neurological condition was found to be devoid of upper level mental functions. Only spinal cord reflexes were found to be present; in other words in layman’s terms, Brown was a mere “vegetable”. Brown remained hospitalized in this condition until October 6, 1982, when he died from pneumonia, a secondary complication of the initial head injury inflicted by defendant.

Defendant was originally indicted for second degree murder in violation of La. R.S. 14:30.1, tried by jury, convicted of manslaughter in violation of La.R.S. 14:31 and sentenced to 18 years at hard labor.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, the defendant contends that the state failed to meet its burden of proving beyond a reasonable doubt the essential elements of the crime of manslaughter, particularly arguing that the state failed to prove beyond a reasonable doubt that the homicide was not committed in self defense.

A defendant in a homicide prosecution who asserts that he acted in self defense does not have the burden of proof on that issue because the state, bears the burden of establishing beyond a reasonable doubt that the homicide was not perpetrated in self defense. State v. Brown, 414 So.2d 726 (La.1982); State v. Collins, 306 So.2d 662 (La.1975); State v. Patterson, 295 So.2d 792 (La.1974).

La.R.S. 14:20 provides:

A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or
(2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if. he attempted to prevent the felony without the killing.

When this issue is presented for review on appeal, the relevant inquiry becomes whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, supra.

The facts of this homicide were developed at trial through the testimony of the occupants of the car, other onlookers and the defendant.

Sevetra Combs testified that while she was driving the vehicle to Sheppard’s Inn, the defendant and Brown began arguing. After she parked the car on the shoulder of the road, the defendant and Brown exited the vehicle with the defendant advancing on Brown. This witness testified that Octavian Cockerham attempted to restrain the defendant at this point but that when he let the defendant go, the defendant knocked Brown to the ground hitting him in the face about three times. At this point, this witness left the scene to obtain assistance. This witness testified that she never saw Brown with a knife but that she did see Brown reach over the seat of the car toward the defendant. After this occurred, the defendant stated that Brown had cut him. This witness testified further that Brown never got a “lick in” after the defendant got out of the car. She did state that after the fight was completed she observed three cuts on the defendant’s head.

Elizabeth Ann Yenzant testified that the defendant exited the vehicle before Brown. She testified that the defendant pushed Brown, who had a knife in his hand. She saw the knife hit the defendant’s head after which the defendant pushed Brown and he fell. She testified that the defendant kept beating Brown after he was knocked out. She further stated that Octavian and John Lee Boston pulled the defendant off of Brown after which the defendant got loose, ran back, and began stomping the unconscious Brown around the face.

John Lee Boston testified that the defendant and Brown began arguing in the car. This witness saw Brown reach toward the defendant in the front of the car. Then he observed defendant jump out of the car, run around it, and knock Brown in the ditch after which he saw the defendant standing over Brown who was lying in the ditch. At that point defendant was hitting Brown with his fist. When this witness tried to pull the defendant off of Brown, the defendant hit him. Octavian then pulled the defendant off of Brown after which the defendant pulled loose and returned to Brown stomping him in the head with the heel of his foot. At this point, Brown offered no resistance and appeared to be unconscious. This witness then left to tell someone to call the police. On his way out of the club, he met the defendant who hit him again.

Another observer who was a nephew of Brown, Lynn Rushing, stated that he observed the defendant standing holding Brown by the legs and dragging him out to the middle of the road. This witness stated that he had observed the defendant stomp Brown in the face with cowboy boots.

A.D. Brice and Irene Venzant, who took Brown to the hospital in Arcadia, both testified that he was unconscious and remained in that condition throughout their contact with him. Their testimony was corroborated by the ambulance attendant who accompanied Brown to LSU Medical Center.

In a statement given to officers the day following his arrest for second degree battery, the defendant stated that he and Brown had started arguing outside Sheppard’s Inn. When the defendant attempted to walk off, someone told him to look out, he turned around and was cut in the head and the face by Brown. After he was cut, the defendant began fighting with Brown who struggled for some time but was overcome by the defendant. The defendant stated that he tried to get away from Brown and walk off but that Brown would not allow this. However, at trial defendant’s version of the events surrounding the events was somewhat altered. He stated that he had argued with Brown in the vehicle and thought that the argument was over when they arrived at Sheppard’s Inn. However, when they arrived, Brown reached over the seat and cut the defendant on the head. He then got out of the car and Brown cut the defendant on the eye. At this point, the defendant started fighting with Brown, who was cutting at his legs, causing defendant to kick at Brown. After the defendant saw that Brown was unable to fight further, he quit fighting and went inside to clean up. On cross examination, the defendant admitted that Octavian was holding him and that after Octavian let him go he was mad causing him to go for Brown. While the defendant admitted kicking at Brown, he denied stomping him.

The deputy who investigated the crime admitted to returning to the scene of the incident and finding a comb, cap, sunglasses and a knife in the ditch. While the sunglasses and comb were introduced into evidence, the knife and the cap were lost at some point after their discovery.

After hearing all of the testimony, the jury found the defendant guilty of manslaughter. In order for us to reverse this conviction, it would be necessary that we evaluate the credibility of the witnesses and overturn the jury on its factual determination of guilt. This is not the function of this court on appeal. See State v. Richardson, 425 So.2d 1228 (La.1983). Because it is the role of the fact finder to weigh the respective credibilities of the witnesses, an appellate court will not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

It is obvious that the jury rejected the defendant’s version of the occurrence. While it is obvious that Brown had a knife and that the defendant was cut with it prior to his initiation of the fight outside of the car, the jury obviously accepted the facts as presented by the other witnesses and concluded that the defendant was not justified in his responsive actions. First of all, there is sufficient evidence for the jury to have concluded that the defendant could have escaped any danger by retreating from Brown rather than by attacking him. Although there is not an unqualified duty to retreat, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Brown, supra. There is ample testimony to support a finding that even after the defendant had subdued Brown initially and rendered him unconscious he went back and stomped him about the head. Thus, there is ample evidence that would support an inference that the defendant could not reasonably have believed he was in danger of losing his life or receiving great bodily harm after he and Brown exited from the car; in short, he could have easily saved himself from any danger without resorting to deadly force.

After reviewing the evidence in accordance with the standard set forth in Jackson v. Virginia, supra, we conclude that the state met its burden of proof and that based upon the evidence presented at trial, a rational trier of fact could have found, beyond a reasonable doubt, that the state proved the homicide was not committed in self defense.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment, the defendant argues that the state failed to prove that a homicide was committed. While admitting that the victim was injured, it is argued that he died of pneumonia some three weeks later and that the state did not prove beyond a reasonable doubt that the actions of the defendant caused the pneumonia which caused death. It is argued that because no evidence was shown as to the health of the victim prior to admission or immediately after the admission to the hospital that a reasonable doubt exists as to this causative factor.

The state offered the testimony of Dr. Brian Keith Willis, a first year surgery resident at LSU Medical Center, who was accepted by the court as an expert “medical doctor” without objection by the defendant. He testified that he examined the victim upon admission finding multiple facial lacerations and fractures and severe neurological deficients including the absence of upper level mental functions and the presence of only spinal cord reflexes and some brain stem reflexes. This indicated that the victim was in a vegetative state with sustaining heart rate and blood pressure and some spontaneous respira-tions. This witness treated the victim until the end of September, when he was transferred to cardiothoracic surgery service. He again examined the victim on the night of his death as well as his medical records. It was his firm opinion that the victim died of pneumonia, a secondary complication of and directly related to his head injury. He testified that this is a very common development in a head injury of this severity because the patient is unable to clear bronchial secretions which trap bacteria behind those secretioins and foster pneumonia.'

A similar argument was raised in State v. Durio, 371 So.2d 1158 (La.1979). In response, the Durio court stated:

In State v. Wilson, 114 La. 398, 38 So. 397 (1905) a similar argument was raised. In that case defendant was found guilty of murder when the victim he shot subsequently died from pneumonia. Based on medical testimony which indicated that the victim would not have contracted pneumonia but for the gunshot wound, this Court held that causation had been established. The court found that if the defendant “hastened the termination of life, or contributed, mediately or immediately, to the death, in a degree sufficient to be a clearly contributing cause, that is sufficient.” A similar standard for determining causation in fact is approved by LaFave and Scott in their treatise on criminal law. The test adopted there is “Was the defendant’s conduct a substantial factor in bringing about the forbidden result.” LaFave and Scott, Criminal Law, § 35, p. 250 ff. See also Focht, Proximate Cause in the Law of Homicide, 12 Cal.L.Rev. 19, 27 (1938).

It is clear from the unrebutted and un-contradicted testimony of Dr. Willis that the legal cause of the victim’s death was the injuries inflicted on him at the time of the beating because the pneumonia was caused by the initial injury, a common occurrence after injuries of this severity. This witness was competent to testify as to the cause of death. See State v. Winzer, 354 So.2d 533 (La.1978).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant next argues that his sentence is excessive in violation of the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution of 1974.

Article I, § 20 of the Louisiana Constitution of 1974 protects a defendant against the imposition of excessive punishment. A sentence constitutes excessive punishment if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). To prevent the possible imposition of excessive punishment and to guide the trial court in its sentencing tasks, the legislature enacted La.C.Cr.P. Art. 894.1 which sets forth factors which justify a sentence of imprisonment and other factors which tend to indicate suspension of sentence or probation as appropriate. State v. Smith, 430 So.2d 31 (La.1983). In imposing sentence, a trial judge must comply with the mandatory requirements of La.C.Cr.P. Art. 894.1 and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Jones, 381 So.2d 416 (La.1980). However, this article does not require that the trial judge set forth for the record all of the factors listed in the statute which were accorded weight by him in determining to impose a sentence of imprisonment. State v. Jacobs, 383 So.2d 342 (La.1980). While a sentence may be vacated and a case remanded for re-sentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record, when Article 894.1 has been complied with a sentence should not be set aside as excessive in the absence of an abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983).

There is no need for a remand in this case. The trial judge in sentencing the defendant articulated the following factors as having been considered in imposing the sentence. The trial judge first noted the seriousness of the offense and the risk that the defendant, if released on probation, would commit another crime. It was further found that to suspend this sentence would result in the deprecation of the seriousness of the crime which resulted in the death of the victim. The trial judge found that the crime caused serious harm and that it was contemplated by the defendant that it would cause serious harm. The trial judge specifically found that the defendant did not act under strong provocation but did recognize the fact that the victim’s initial actions may have started the incident. However, the trial judge found that the defendant’s responsive actions were excessive and there were no “substantial” grounds that would tend to excuse or justify the defendant’s conduct. The trial judge further considered the defendant’s criminal record which includes convictions for extortion and conspiracy to commit aggravated kidnapping and simple battery as well as numerous other arrests. The trial judge finally concluded that if angered sufficiently again, that the defendant’s conduct was likely to recur and that the term of imprisonment would cause no excessive hardship. It was also noted that because of defendant’s second felony offender status, that a suspended or probated sentence was precluded. We conclude that the trial judge adequately complied with Article 894.1.

Our review of the record leads us to further conclude that this sentence is commensurate with, rather than grossly disproportionate to, the severity of defendant’s offense. The extended imprisonment is not needless and purposeless but is imposed to negate the defendant’s opportunity to commit such crimes in the future. The sentence is adequately particularized to this particular defendant in light of his particular crime. Consequently, we find that the trial judge did not abuse his discretion, and the sentence is not excessive.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment, defendant argues that the trial court erred in overruling several defense objections made during the course of the trial.

First, the defendant contends that questions posed to a deputy sheriff regarding statements made to him were prejudicial hearsay. The state first asked Deputy McCarley, the officer dispatched after the disturbance was reported, if anyone was able to tell him what had happened. The defense objected and the court instructed the state to rephrase the question. The court then asked if the witness had made any determination about this disturbance. When the deputy answered that he had, the state asked what he had been told. The defense objected again. The state countered that this type of testimony was admissible to show what the officer had done in his investigation. The court overruled the objection.

Hearsay is testimony made in court regarding an out of court statement, the statement being offered as an assertion to show the truth of the matters asserted. State v. Ratcliff, 416 So.2d 528 (La.1982). Evidence is not hearsay if introduced to show that an utterance occurred or that a conversation has taken place rather than to show the truth of the matter. State v. Ratcliff supra. Furthermore, a police officer may refer to a statement made to him by others in order to explain the sequence of events leading to the arrest of the defendant. See State v. Tucker, 405 So.2d 506 (La.1981).

The first question objected to merely required a yes or no answer; it was only seeking to show that an utterance had occurred or that a conversation had taken place. The second objected to statement referred to a statement made to the deputy in order to explain the sequence of events leading to the arrest of the defendant. Neither of these statements was inadmissible hearsay and the objections were properly overruled.

Next, the defendant asserts that statements made by the defendant to Deputy McCarthy to the effect that he was going to whip the victim were inadmissible hearsay. The record reflects that in the course of his investigation at the scene, the officer did talk to the defendant who in fact stated that he had “whipped” the victim. However, defense counsel failed to make any objections to this testimony; accordingly its admissibility is not subject to our review. La.C.Cr.P. Art. 841; State v. Herrod, 412 So.2d 564 (La.1982).

The defendant additionally argues that the state failed to carry its burden of proof regarding the admissibility of the defendant’s recorded statement made to deputy Raley and admitted into evidence. At the time that the statement was offered into evidence, the defendant did not object to the statement on any basis. In fact, when the state for the record submitted that if a defendant does not file a motion to suppress timely he is prevented from objecting to the admissibility of any statement on the grounds that might be asserted by a motion to suppress and that it had no burden of proving that the statement was voluntary, not only did the defense not object but defense counsel responded, “I agree with that one-hundred percent.” Accordingly, this issue is not properly before us for review. La.C.Cr.P. Art. 841; State v. Herrod, supra.

The defendant further argues that under La.C.Cr.P. Art. 768 the state was required to give notice to the defendant of its intent to introduce a confession or incul-patory evidence. Again, the defense did not object to the introduction of this statement on that basis. Furthermore, the state supplied the required notice timely. This argument is meritless.

The defendant next argues that he objected to Dr. Willis’ testimony, both as to his qualifications as a pathologist (a specialist in cause of death) and to medical records written by others, arguing that his opinion based on the hospital records of the victim is outside any hearsay exceptions and should not be allowed. First of all, we note that Dr. Willis was qualified as an expert witness without objection from the defendant. The only objection made at trial was to this particular witness’ testifying from those records and to the admissibility of those records. In his brief, the defendant seems to recognize the hospital records exception to the hearsay rule. La.R.S. 13:3714. When hospital records are properly certified they are admissible in criminal cases as well as civil cases under La.R.S. 13:3714. State v. Trahan, 332 So.2d 218 (La.1976). The records were properly certified and were properly admitted in this case. See also La.R.S. 15:457. The defendant’s argument that the doctor’s opinion as to the cause of death based in part on the medical records should not have been allowed disregards the .fact that this witness was the treating physician of the victim from the time of his admission to the hospital until six days prior to his death, during which time he had personal knowledge of Furthermore, an expert medical witness is entitled to review medical records and formulate an opinion therefrom. [Compare State v. Titus, 358 So.2d 912 (La.1977) where it was held that a properly qualified expert witness might well refer to a chart which he understood to arrive at his expert opinion, and State v. Nicolaus, 340 So.2d 296 (La.1976) where it was held that a medical opinion based in part upon hospital records did not render it inadmissible.] In fact, medical experts are expected to rely in part on tests and examinations performed by others in arriving at their opinions and this reliance does not render their opinions inadmissible. State v. Andrews, 369 So.2d 1049 (La.1979). This argument is meritless. his condition.

Defendant next argues that it was error to allow Deputy McCarthy to testify as a rebuttal witness because he had not been subject to the sequestration rule. It is further argued that his testimony went beyond the scope of rebuttal and was prejudicial.

La.C.Cr.P. Art. 764 provides for the sequestration of witnesses upon the request of either the state or the defendant or upon the court’s own motion and gives the trial court the authority to modify such orders in the interest of justice. The purpose of sequestration is to assure that a witness will testify from his own knowledge without being influenced by the testimony of prior witnesses and to strengthen the role of cross examination in developing facts. State v. Warren, 437 So.2d 836 (La.1983). Absent any evidence that the testimony was tainted by a violation of a sequestration order, the trial judge may properly rule that the testimony shall not be precluded. State v. Parker, 421 So.2d 834 (La.1982). Deputy McCarthy’s testimony on rebuttal concerned matters other than the details of the crime itself. Consequently, it was not tainted by his having heard any prior testimony of other witnesses, and the purpose of the rule of sequestration was not violated by his having been called. This argument is meritless.

Defendant next argues that the testimony of Deputy McCarthy was beyond the scope of rebuttal and was prejudicial to the defendant. Our review of the record reveals that no objections were made to any facet of the content of this testimony. This testimony is not subject to our review. La.C.Cr.P. Art. 841; State v. Herrod, supra.

Finally, defendant argues that the state’s rebuttal closing argument went beyond the scope of the defendant’s closing argument and was thus prejudicial to the defendant. The scope of argument on rebuttal is governed by La.C.Cr.P. Art. 774 which provides that such argument shall be confined to answering the argument of the defendant. If argument goes beyond the scope of this article, it falls within the ambit of La.C.Cr.P. Arts. 770 and 771. See La.C.Cr.P. Art. 774 comment (c); State v. Morris, 404 So.2d 1186 (La.1981). In order for argument outside the scope of Article 770 to be reversible the reviewing court must be thoroughly convinced that the jury was influenced by the complained of remarks and that they contributed to the verdict. State v. Morris, supra. The prosecutor may be given some latitude to use argument outside the scope of Article 774 to refute defense argument of like character. State v. Morris, supra.

During argument, defense counsel referred to the defendant’s testimony regarding why he was kicking the victim and indicated that the reason why the defendant was kicking was because he thought the victim was trying to cut him with the knife. In the state’s rebuttal, the prosecutor referred to defendant’s statement given to Deputy Raley which was admitted into evidence in an attempt to rebut defense counsel’s argument concerning the reason for the defendant’s having kicked the victim contending that the earlier statement was contradictory to defendant’s trial testimony. Although defense counsel did not refer to this statement as such during his argument, the referral to it by the state was proper rebuttal to refute the defendant’s explanation of the kicking. This argument is without merit.

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

CONVICTION AND SENTENCE AFFIRMED.

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