author: MARCUS, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Robert JACKSON.
    No. 82-KA-0332.
    Supreme Court of Louisiana.
    April 2, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr. Asst. Atty. Dist. Atty., for plaintiff-appel-lee.
    Ronald J. Rakosky, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Robert Jackson was indicted by the grand jury for the first degree murder of Whitney Schultz in violation of La.R.S. 14:30. Defendant’s motion to suppress was denied by the trial judge. After trial by jury, defendant was found guilty of second degree murder and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

On appeal, we remanded the case for a “reopened hearing” on the motion to suppress because evidence as to probable cause for the arrest of defendant had been improperly excluded during the pretrial hearing. We retained jurisdiction of the appeal in the event of an adverse ruling to consider that ruling as well as other assignments of error not previously considered. State v. Jackson, 424 So.2d 997 (La.1982). On remand, the state and defendant stipulated as to the additional evidence that would have been adduced had ten named witnesses testified at the hearing. Thereafter, the trial judge again denied the motion to suppress. Defendant has assigned thirty assignments of error for reversal of his conviction and sentence.

FACTS

The body of Whitney Schultz was found under the bed in room 233 of Mason’s Motel in New Orleans about 3:30 p.m. on Monday, September 24, 1979 by a motel housekeeper. The room had no signs of a forced entry or a struggle. The police learned that room 233 had been registered to James Davis of Orlando, Florida for one day at 9:52 a.m. on Sunday, September 23. The motel records also revealed that room 233 was the only room on the motel’s second floor rented out from Saturday through the time of the body’s discovery on Monday. The police also learned that the victim had last been seen on Sunday about 10:30 p.m. leaving his parents’ house to go to an automatic banking machine. However, his automobile which he had been driving was not at the motel nor anywhere in the vicinity. The police listed Schultz’s car as a stolen vehicle and sent that information nationwide through a National Crime Information Center (NCIC) bulletin.

The investigating officers then were told by Detective Vivian Jackson that she had responded to a complaint of a kidnapping and rape at Mason’s Motel in room 233 on Sunday, September 23 about 1:00 p.m. Detective Jackson had found four persons in the motel room: Audrey Brown, the complainant, another black female (later identified as Stephanie Johnson), defendant, who identified himself and supplied his Florida driver’s license, and another black male, James Davis (later identified as Edward Wynn). They informed the detective that they were on their way from their homes in Orlando, Florida to California but had been forced to stop despite having little money because defendant’s car had broken down outside New Orleans. Her interviews convinced Detective Jackson that Brown’s complaint was merely an attempt to obtain free transportation for her back to Orlando, and thus no action had been taken.

On October 2, 1979, the San Diego police found Schultz’s car abandoned without license plates. When the discovery was verified on October 3 with the New Orleans police, they asked the San Diego police to arrest Brown, Wynn and defendant for Schultz’s murder and issued an NCIC bulletin to that effect. On October 5, the New Orleans police relayed to the San Diego police Brown’s San Diego address obtained from her mother by the Orlando police. Defendant was arrested on a San Diego street with Brown on October 9. Defendant waived extradition and was returned to New Orleans on October 15.

That day, after waiving his rights, defendant gave a written confession to the murder of Whitney Schultz. He stated the foursome had stopped in New Orleans because his car had broken down during their journey from Orlando, Florida to San Diego, California. Defendant told how he and Edward Wynn met the victim at a bank and returned with him to their motel room. Then while the two women hid in the bathroom, he strangled Schultz with a belt around his neck as Wynn held the victim’s hands. Defendant stopped when Schultz began to bleed from his nose and mouth. He and Wynn put Schultz under the bed and wiped down the room while the women packed Schultz’s car. The foursome then traveled to San Diego in Schultz’s car using Schultz’s VISA card to buy gas and food. At trial, the testimony of the women corroborated the facts revealed by defendant’s confession and also repeated defendant’s statement during the trip that “we killed him.” The coroner testified that Schultz’s death was caused by strangulation of the neck about twelve to twenty-four hours prior to the body’s discovery.

ASSIGNMENTS OF ERROR NOS. 1 AND 16

Defendant contends the trial judge erred in denying his motion to suppress his confession and in admitting it in evidence at trial. He argues that there was no probable cause for his arrest; therefore, the confession was inadmissible as “fruit of the poisonous tree.”

A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause. Probable cause for an arrest exists when the facts and circumstances known to the police and of which the police have reasonably trustworthy information are sufficient to justify a man of ordinary caution in the belief that the person to be arrested has committed a crime. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Bourgeois, 388 So.2d 359 (La.1980).

In this case, the police knew a murder had been committed. They knew that defendant had identified himself to a police officer the preceding day as an occupant in that motel room where the body was found. They knew that no one else had rented that room or even any room on that floor for the proceeding two days. They knew that defendant had been on the way to California but had no car and little money and that the victim’s car was missing after his ill-fated trip to a bank Sunday night. Finally, they knew that the deceased’s ear was now across the country at defendant’s destination, San Diego, California. All this information came reliably from fellow police officers, business records and defendant himself. Based on the totality of the circumstances, we conclude that probable cause existed for the arrest of defendant. Hence, the trial court did not err in denying defendant’s motion to suppress and in admitting his confession in evidence.

Assignments of Error Nos. 1 and 16 are without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in refusing to deliver a copy of the court’s written charge prior to reading it to the jury-

Defendant timely filed a request for a written jury charge pursuant to La. Code Crim.P. art. 801. On the first day of trial, the judge requested defendant instead stipulate that the oral charge be transcribed when read to the jury. Defendant at that time refused but later withdrew his motion for a written charge.

Defendant concedes he thereby waived his right to a written charge since this court requires a contemporaneous objection to the failure to give written charges before it will consider the error, if any, on appeal. State v. Kelly, 375 So.2d 1344 (La.1979); State v. Cluse, 362 So.2d 765 (La.1978). While defendant now argues he was intimidated into withdrawing his motion, the record reveals defendant did so not when the judge requested the stipulation but rather two days later after the judge agreed to read a general charge composed by defendant and the state.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion to waive trial by jury because he was charged with a capital offense.

In Louisiana, trial by jury may be knowingly and intelligently waived by the defendant except in capital cases. La. Const. art. I, § 17; La.Code Crim.P. arts. 780 & 782(B). There is clearly no constitutional right not to be tried by a jury, except in the very unusual case where a fair jury trial is impossible or unlikely. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); State v. Robinson, 421 So.2d 229 (La.1982); State v. Toomer, 395 So.2d 1320 (La.1981). There is nothing in the record to suggest that a fair trial by jury was impossible or unlikely in this case.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in denying his motion to quash. He argues that a guilt-prone jury was created through the state’s use of challenges for cause of prospective jurors due to their sentiments regarding the death penalty.

A review of the voir dire examination reveals that two jurors were properly excused for cause after challenges by the state in compliance with La.Code Crim.P. art. 798(2) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Defendant does not have a ground for complaint because the state used only eight of the twelve peremptory challenges to which it was entitled, La.Code Crim.P. art. 800, and because the defendant by the jury’s verdict was insulated from the death penalty. State v. George, 371 So.2d 762 (La.), cert. denied, 444 U.S. 953, 100 S.Ct. 430, 62 L.Ed.2d 325 (1979). Moreover, defendant’s contention has been rejected by the United States Supreme Court in Witherspoon v. Illinois, supra, and consistently by this court. State v. Miller, 391 So.2d 1159 (La.1980); State v. Kelly, 375 So.2d 1344 (La.1979).

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for the disclosure of the state’s information on the arrest and conviction records of prospective jurors for his use during voir dire. Defendant argues this refusal thwarted his preference of selecting jurors with experience as to “police coercive tactics” who thereby would be better able to judge his defense attacking the voluntariness of his confession.

The accused has the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. La. Const. art. I, sec. 17. The purpose of the voir dire examination is to test the competency and impartiality of prospective jurors. Wide latitude should be given the defendant during voir dire so that he may discover bases for challenges for cause and, within reasonable limits, secure information for the intelligent exercise of his peremptory challenges. State v. Robinson, 404 So.2d 907 (La.1981); State v. Clark, 325 So.2d 802 (La.1976). Furthermore, the scope of the voir dire examination is within the sound discretion of the trial judge and his rulings thereon will not be disturbed in the absence of a clear abuse of discretion. La.Code Crim.P. art. 786; State v. James, 431 So.2d 399 (La.), cert. denied, — U.S. -, 104 S.Ct. 263, 78 L.Ed.2d 247 (1983). Whether a particular question is essential to full voir dire is best governed by a liberal discretion by the trial judge under the prevailing facts and circumstances, and the disallowance of a proper question will not automatically create reversible error, for in reviewing the fairness of the ruling the entire examination must be considered. State v. Robinson, supra; State v. Allen, 380 So.2d 28 (La.1980).

The state conceded it had the information on prospective jurors’ criminal records and intended to use it in selecting the jury. Also, defendant asserts he could not practicably obtain the criminal records of the 230 prospective jurors from other sources. Defendant therefore argues that this non-reciprocal advantage of the state offended his due process right to a fair trial. The trial judge denied defendant’s motion for disclosure but permitted defendant to question the prospective jurors about their convictions, if any, but not about their arrests.

The criminal records of prospective jurors’ may be useful to the state in its desire to challenge jurors with inclinations or biases against the state. But they are not pertinent to the purpose of defendant’s voir dire: to challenge jurors whom defendant believes will not approach the verdict in a detached and objective manner. Whatever the practical desire of trial counsel, the recognized purpose of full voir dire is not to pack the jury with persons favorable to the defendant or to the state. Under the circumstances of this case, defendant was not entitled to disclosure of the criminal records. Hence, the trial judge did not err in denying defendant’s motion for disclosure. Moreover, viewing the entire voir dire, we find that defendant was afforded a full and complete examination of the prospective jurors.

Assignment of Error No. 5 is without merit.

ASSIGNMENTS OF ERROR NOS. 7, 8, 10 AND 11

Defendant contends the trial judge made certain erroneous rulings during voir dire. Specifically, he challenges the denial of his requests for individual voir dire (No. 7) and for special instructions to the prospective jurors (Nos. 8 and 10) and the curtailment of his questioning of a prospective juror concerning a recent presidential assassination attempt (No. 11).

The scope of voir dire examination is within the sound discretion of the trial judge, and his rulings thereon will not be disturbed on appeal absent a clear abuse of discretion. In evaluating the fairness of his rulings, the entire examination must be considered. La.Code Crim.P. art. 786; State v. Robinson, 404 So.2d 907 (La.1981).

The burden is on defendant to show special circumstances indicating why individual voir dire is warranted. State v. Monroe, 397 So.2d 1258 (La.1981), cert. denied, — U.S. -, 103 S.Ct. 3571, 77 L.Ed.2d 1411 (1983); State v. Dominick, 354 So.2d 1316 (La.1978). Because defendant made no such showing, the trial judge did not abuse his discretion in denying the request. Further, the trial judge did not err in not giving defendant’s requested instruction on attitudes toward the death penalty because it was not wholly correct nor necessary given the instructions to the prospective jurors on sentencing in capital eases. Similarly, it was not error to deny defendant’s request that the prospective jurors be charged on the effects of a non-unanimous recommendation during a sentencing phase because that was not pertinent to the guilt phase and indeed was mooted in this case by the jury’s verdict of second degree murder. Finally, the entire record reveals that the trial judge’s curtailment of questions concerning the example of a recent presidential assassination attempt did not in any way prevent defendant’s full inquiry into the presumption of innocence and the state’s burden of proof beyond a reasonable doubt.

Assignments of Error Nos. 7, 8, 10 and 11 are without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant contends the trial judge erred in admitting prejudicial evidence of other crimes through testimony concerning medical tests suggesting homosexual activity prior to the victim’s death.

During discovery, defendant was provided with copies of the autopsy report on Whitney Schultz indicating the presence of seminal fluid in the victim’s mouth and rectum, but was also told the state would not introduce other crimes evidence to show intent as to the offense charged. At trial, the pathologist, Dr. Paul McGarry, testified he had taken oral and anal swabs from the victim for lab tests. Mrs. Patricia Daniels, a medical technician in the coroner’s office, testified over defendant’s objection that she had found seminal fluid on both oral and anal swabs (but no spermatozoa). She stated that her tests could not identify the individual from which the fluid came but that it was deposited in the victim’s body cavities within 24 to 48 hours prior to his death. Stephanie Johnson, who hid in the bathroom during the murder, testified that when she emerged she saw the victim lying on the floor with his pants unzipped and wet. Defendant’s confession contains the spontaneous declaration that “I want to put in there that none of us raped that boy.”

It is unclear that this evidence indicates another crime of defendant as there was no evidence linking defendant to the sexual activities. In any event, evidence of other crimes which are part of the res gestae of the charged offense is admissible without balancing the probative value of the evidence against its prejudicial effect and without any pretrial Prieur notice by the state. La.R.S. 15:447; La.Code Crim.P. art. 720; State v. Williams, 375 So.2d 364 (La.1979). To constitute res gestae, the circumstances must be necessary incidents of the criminal act or immediate concomitants of it, or form in conjunction with it one continuous transaction. La.R.S. 15:448. Here, the purpose served by the admission of the evidence about the victim’s autopsy was not to depict defendant as a bad man but rather properly to complete the story of the crime on trial by showing its immediate context of happenings near in time and place. State v. Haarala, 398 So.2d 1093 (La.1981). Hence, the trial judge did not err in admitting the evidence. ,

Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant contends the trial judge erred in admitting in evidence an oral inculpatory statement made by him despite the absence of the required pretrial notice.

At trial, both Audrey Brown and Stephanie Johnson testified over defendant’s objection that during the ride to California defendant stated, “we killed him.” Defendant’s first counsel in April 1980 requested pretrial inspection of “all oral confessions, statements and admissions made by Robert Jackson, before or after arrest.” The state in May 1980 answered “none.” The state did however furnish defendant’s October 15, 1979 written confession and also in a contemporaneous response to defendant’s bill of particulars informed defendant that both Brown and Johnson had given statements inculpating defendant. In September 1980 defendant’s new counsel filed a motion for discovery which included a request to be advised of the existence and be provided with discovery of other inculpatory statements made by defendant besides the October 15, 1979 confession. The state answered “state has given defendant all statements in its possession and within its knowledge.” That answer, however, also in another part agreed that the state would provide the tape recordings of the full statements of Brown and Johnson to the New Orleans police, of which defendant admittedly had already received the transcripts. At trial, defendant conceded that these full copies of the women’s statements contained the circumstances and content of the inculpato-ry statement which defendant had made to them during the trip to California. Nonetheless, the state’s written pretrial notice of the state’s intent to use inculpatory statements at trial listed only defendant’s October 15, 1979 written confession.

Upon motion of defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made. La.Code Crim.P. art. 716(B). Further, La.Code Crim.P. art. 768 then provided that “if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.” Nevertheless, where substantial compliance with the article’s purpose has been met through other pretrial pleadings, the technical deficiency of the notice may not bar introduction of the statement. State v. Sneed, 316 So.2d 372 (La.1975). The purpose of giving defendant sufficient notice of each inculpato-ry statement the state intends to use is to permit defendant a fair opportunity to meet the issue. If a defendant is misled by state responses relative to the state's possession of an oral inculpatory statement and is lulled into a misapprehension of the strength of the state’s case and suffers prejudice when the statement is subsequently introduced at trial, basic unfairness results which constitutes reversible error. State v. Russell, 416 So.2d 1283 (La.), cert. denied, 459 U.S. 974, 103 S.Ct. 309, 74 L.Ed.2d 288 (1982); State v. Davis, 399 So.2d 1168 (La.1981).

The state erred in not listing defendant’s oral inculpatory statement to the women in its article 768 notice. Further, the state’s discovery response of “none” to defendant’s request for oral in-culpatory statements was incorrect if viewed in isolation. However, defendant’s April 1980 request confused his discovery rights under art. 716(B) and (C) and it is possible to interpret that request given its language and context to relate solely to art. 716(C). Indeed, while his request was for pretrial inspection, as to his statement to the women at issue herein defendant was clearly entitled only to be told of its existence, not its content. Yet, defendant concedes he was informed through the women’s full statements of the actual content and circumstances of defendant’s in-culpatory statement to which the women would testify. Given this substantial compliance through other pretrial pleadings, defendant suffered no prejudice and the technical deficiencies of the state’s pretrial notices should not have barred introduction of the statement. Hence, the trial judge did not err in allowing the testimony.

Moreover, this court has held that the failure of the state to provide defendant with correct article 768 notice may be harmless error where the remaining evidence of guilt is overwhelming. State v. Neslo, 433 So.2d 73 (La.1983); State v. Gautreaux, 377 So.2d 289 (La.1979). Such is the situation here.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends the trial judge erred in refusing to remove the jury during the offer and introduction of the state's exhibits in evidence. Defendant objected to three of the state’s exhibits. However, a proper foundation had been laid for each, and each was ruled admissible. Assignment of Error No. 14 is without merit.

ASSIGNMENT OF ERROR NO. 19

Defendant contends the trial judge erred in denying his motion for a recess based on the absence of a witness.

Trial commenced on April 7, 1981. On Thursday morning, April 9, defendant moved for a recess until the following week, or perhaps until Friday afternoon, when Dr. William Eckert might be available to testify. Defendant proffered that Dr. Eckert, a California expert then testifying in another out-of-state trial, would have testified given his examination of the medical data that, while Whitney Schultz died of asphyxia, other theories besides strangulation were possible, particularly that Schultz died from having the bed placed on him in his weakened condition (compressive asphyxiation). Defendant admitted he should have subpoenaed the doctor but failed to do so. The trial judge denied the motion.

To be entitled to a recess to secure the presence of a witness, a party must show the actual necessity for the witness and the materiality of his expected testimony, a probability that, the witness will be available at the time to which the trial is deferred and due diligence in attempting to procure the witness for trial. State v. White, 389 So.2d 1300 (La.1980); State v. Bertrand, 381 So.2d 489 (La.1980); cf. La.Code Crim.P. art. 709. Generally, the due diligence requirement is not satisfied where defense counsel fails to have the potential witness subpoenaed. State v. Terry, 359 So.2d 172 (La.1978). The decision to grant or deny a recess is within the sound discretion of the trial judge and will not be overturned on appellate review absent a clear abuse of discretion. State v. Gordy, 380 So.2d 1347 (La.1980); State v. Robertson, 358 So.2d 931 (La.1978).

Dr. Eckert would not have offered positive evidence that defendant died other than by asphyxia as already established by the coroner’s testimony and defendant’s confession. Leaving the victim in a weakened condition under the bed to die does not relieve defendant’s culpability for second degree murder. Defendant did not make the requisite showing of the witness’ availability or prejudice by his absence. Hence, the trial judge did not err in denying the motion for a recess.

Assignment of Error No. 19 is without merit.

ASSIGNMENT OF ERROR NO. 20

Defendant contends the trial judge erred in denying his motion for a mistrial based on the state’s failure to disclose grants of immunity to two state witnesses.

In response to defendant’s first set of discovery motions, the state answered that Audrey Brown and Stephanie Johnson had been promised special consideration in exchange for testimony or evidence against defendant. However, when defendant in his second set of motions requested disclosure of the exact terms of any promises or grants of immunity to persons including Brown and Johnson in exchange for information or testimony against defendant, the state responded “none.” At trial, one detective did testify that it was his understanding that the two women had been given immunity from prosecution by the district attorney in exchange for their statements. However, he was not present during that discussion. Defendant extensively cross-examined both Brown and Johnson at trial concerning possible special consideration they were receiving in exchange for their testimony. Both women maintained that while they thought the pending charges (of being accessories after the fact) would be dropped after they testified, no specific promises had been made.

The possibility and scope of promises was thus fully aired before the jury, thereby placing the credibility of the state’s witnesses at issue. Hence, the trial judge did not err in denying the motion for a mistrial.

Assignment of Error No. 20 is without merit.

ASSIGNMENTS OF ERROR NOS. 21, 22, 28 AND 30

Defendant contends the trial judge erred in refusing to give two requested special jury instructions (relating to accomplice testimony and to specific intent) and in twice giving erroneous instructions on the law of principals.

The state and the defendant have the right before argument to submit to the court special written charges for the jury. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La.Code Crim.P. art. 807.

We find no merit in defendant’s contentions. Our review of the record reveals the requested instructions were either not pertinent or were included in the trial judge’s general charge, which correctly instructed the jury on the law of principals.

Assignments of Error Nos. 21, 22, 28 and 30 are without merit.

ASSIGNMENT OF ERROR NO. 23

Defendant contends the trial judge erred in refusing to give defendant’s requested special instruction concerning the crime of negligent homicide.

La.Code Crim.P. art. 814 lists the only verdicts responsive to a first degree murder indictment as guilty, guilty of second degree murder, guilty of manslaughter, not guilty. Instructions on these permissive verdicts are mandatory. State v. Toomer, 395 So.2d 1320 (La.1981). La.Code Crim.P. art. 802 obligates the trial judge to charge the jury on the law applicable to the case. Under this rule, the trial judge is required to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. State v. Johnson, 438 So.2d 1091 (La.1983); State v. Marse, 365 So.2d 1319 (La.1978).

The trial judge sufficiently instructed the jury on the elements of the possible verdicts and that they must find the state proved all the elements of one of those crimes beyond a reasonable doubt or return a verdict of not guilty. State v. Tompkins, 403 So.2d 644 (La.1981); State v. Matthews, 380 So.2d 43 (La.1980). Moreover, the offense of negligent homicide was not fairly supported by the evidence; thus, the special instruction was not pertinent and need not have been given. La.Code Crim.P. art. 807; State v. Lane, 414 So.2d 1223 (La.1982); State v. Anderson, 390 So.2d 878 (La.1980). Hence, the trial judge did not err in refusing to give the special requested charge on negligent homicide.

Assignment of Error No. 23 is without merit.

ASSIGNMENT OF ERROR NO. 24

Defendant contends the trial judge erred in overruling his objection to a portion of the judge’s general charge to the jury on the ground that it contained a prohibited presumption.

The state cannot shift to the defendant the burden of disproving an element of the crime charged by use of a conclusive presumption or by shifting the burden of persuasion. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); State v. Heads, 385 So.2d 230 (La.1980). However, this court has consistently held that a jury charge must be considered as a whole with particular expressions construed in context and has declined to reverse a conviction on the ground of an erroneous instruction unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. State v. Motton, 395 So.2d 1337 (La.), cert. denied, 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981); State v. Stramiello, 392 So.2d 425 (La.1980).

In this case, the specific intent instruction considered as a whole merely sets out a permissive inference that intent to kill may be implied under certain circumstances. It leaves the jury free to credit or reject the inference and does not shift the burden of proof to defendant. State v. Mattheson, 407 So.2d 1150 (La.1981), cert. denied, — U.S. -, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). While one sentence of the instruction was improper, that particular portion was general in nature and given its context of appropriate examples of proper inferences the jury was correctly instructed by the general charge as a whole relative to specific intent, its formation and its proof by surrounding circumstances. State v. George, 346 So.2d 694 (La.1977). Moreover, under the circumstances of this case where it was shown that defendant strangled the victim, intent was clearly not at issue. Hence, any error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Davis, 411 So.2d 2 (La.1982); see State v. Heads, supra; cf. State ex rel Ross v. Blackburn, 403 So.2d 719 (La.1981).

Assignment of Error No. 24 is without merit.

ASSIGNMENT OF ERROR NO. 27

Defendant contends the trial judge erred in refusing to instruct the jury as to the applicable penalty provisions of second degree murder and manslaughter.

The state and defendant submitted a jury charge to the trial judge which included the penalty provisions for first degree murder, second degree murder and manslaughter. The trial judge, however, instructed the jury on the penalty for first degree murder, but not on the penalties for the responsive verdicts.

When the penalty imposed by the statute is a mandatory one, the trial judge must inform the jury of the penalty on request of the defendant and must permit the defense to argue the penalty to the jury. State v. Hooks, 421 So.2d 880 (La.1982); State v. Washington, 367 So.2d 4 (La.1978). In instances other than when a mandatory legislative penalty with no judicial discretion as to its imposition is required following verdict, the decision to permit or deny an instruction or argument on an offense’s penalty is within the discretion of the trial judge. State v. Williams, 420 So.2d 1116 (La.1982); State v. Dawson, 392 So.2d 445 (La.1980); State v. Carthan, 377 So.2d 308 (La.1979); State v. Blackwell, 298 So.2d 798 (La.1974) (on rehearing), cert. denied, 420 U.S. 976, 95 S.Ct. 1401, 43 L.Ed.2d 656 (1975).

In the instant case, the trial judge did not inform the jury as requested that a verdict of guilty of second degree murder carried a mandatory penalty of life imprisonment. That omission was erroneous. However, defendant’s request was addressed simply to the reading of all responsive verdict penalties. The decision not to give the charge on the penalty for manslaughter was within the trial judge’s discretion. The record discloses that defendant merely objected to the trial judge’s refusal to instruct the jury on all the penalties and did not, as required by La. Code Crim.P. art. 841, state the grounds for his objection. See La.Code Crim.P. art. 801. The defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to make the proper ruling and prevent or cure an error. State v. Baylis, 388 So.2d 713 (La.1980). The specific error which the trial judge is making must therefore be pointed out to the judge, and it is settled that defendant is limited on appeal to grounds for the objection articulated at trial. State v. West, 419 So.2d 868 (La.1982); State v. Provo, 396 So.2d 1298 (La.1981); State v. Johnson, 389 So.2d 372 (La.1980). In any event, at the time the trial judge was requested to instruct the jury on the mandatory penalty for second degree murder, this court had not specifically extended this requirement to responsive verdicts creating this exception to the general rule that charging the jury concerning penalties for responsive verdicts is within the trial judge’s discretion. State v. Dawson, supra. Under the circumstances of this case, we find no reversible error.

Assignment of Error No. 27 is without merit.

DECREE

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

DIXON, C.J., and LEMMON, J., concur.

DIXON, Chief Justice

(concurring).

I respectfully concur, disagreeing with the treatment of Assignment of Error No. 5.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 6, 9, 15, 17, 18, 25, 26 and 29. Hence, we consider them to have been abandoned. State v. Carlisle, 315 So.2d 675 (La.1975); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

      . At a separate trial, Edward Wynn was convicted of the first degree murder of Whitney Schultz and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence.

      . Since we find there is no mandated discovery, this court need not reach the question of whether such information as compiled by prosecutors is privileged “work product." See State v.

        Holmes, 347 So.2d 221 (La.1977); State v. Wright, 344 So.2d 1014 (La.1977).

      . Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer. La.Code Crim.P. art. 716(C) (emphasis added). In this case, the state had none.


source: Caselaw Access Project

author: MARCUS, Justice. DIXON, Chief Justice BLANCHE, Justice

license: Public Domain

text:
    STATE of Louisiana v. David NEALY.
    No. 82-KA-1591.
    Supreme Court of Louisiana.
    April 2, 1984.
    Dissenting Opinion April 19, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Peter J. Garcia, William R. Alford, Asst. Dist. Attys., for plaintiff-appellee.
    Thomas J. Ford, Franklinton, S. Austin McElroy, Covington, Indigent Defender Board, for defendant-appellant.
   MARCUS, Justice.

David Nealy was indicted by the grand jury for the armed robbery and attempted first degree murder of Mrs. Miriam Jacoby on April 22, 1978 in violation of La.R.S. 14:64 and La.R.S. 14:27 and 14:30. Pursuant to La.Code Crim.P. art. 644, a sanity commission was appointed by the trial judge to determine whether defendant had the mental capacity to proceed as well as his mental condition at the time of the offenses. Upon receipt of the commission’s report, a hearing was held on June 20, 1978 at which it was determined defendant lacked the mental capacity to proceed. The trial judge ordered defendant committed to the Feliciana Forensic Facility to receive treatment. Later, defendant was re-examined by the sanity commission but at a hearing on July 22, 1980 it was determined he lacked the requisite capacity and he was recommitted. After defendant was again reported by the superintendent of the mental institution to presently have the capacity to proceed and he was re-examined by the sanity commission, a hearing was held on March 4, 1981 at which it was determined that defendant had the capacity to proceed to trial.

At arraignment, defendant entered a plea of not guilty by reason of insanity to each charge. He waived trial by jury and elected to be tried by the court. After a bench trial in March, 1982, defendant was found guilty as charged and was sentenced to serve fifty five years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery and forty five years at hard labor for the attempted first degree murder. The court expressly directed that the sentences be served concurrently. Credit was given for time served. On appeal, defendant relies on three assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends his convictions were based on insufficient evidence.

Defendant fled from the Southeast Louisiana State Hospital in Mandeville on April 21, 1978 sometime after having been issued a buddy card at 9:10 a.m. which gave him the privilege of walking around the hospital grounds with another patient. In the late afternoon the following day, April 22, defendant was observed by Patrick Navarre exiting the passenger side of a van which had pulled into his Mandeville service station. Defendant walked across a driveway into the Ozone trailer park. Patricia Newton saw defendant about 5 p.m. go to the trailer home of her next door neighbor, Miriam Jacoby, an eighty-one-year-old woman. Mrs. Newton saw defendant later exit the trailer and try a set of keys in Mrs. Jacoby’s ear, then returned to the trailer for about five minutes and come back out with another set of keys. Mrs. Newton and Mr. Navarre saw defendant drive away in Mrs. Jacoby’s car. A few minutes later, Mrs. Newton discovered Mrs. Jacoby on her trailer floor covered by a sheet, her hands* tied with the telephone cord and bleeding from several stab wounds. Three days later, defendant was arrested in Slidell, where Mrs. Jacoby’s car was recovered. Defendant later admitted his involvement in these charges to Robert Horne, a social worker at the Feliciana Forensic Facility, expressing remorse for what he had done to Mrs. Jacoby but excusing his actions as caused by bad medication.

The constitutional standard of review for the 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). The statutory rule as to circumstantial evidence is that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. This statutory rule is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever the state relies on circumstantial evidence to prove an element of the crime. State v. Wright, 445 So.2d 1198 (La., 1984). Ultimately, the Jackson standard is the objective standard for testing the overall evidence, direct and circumstantial, for reasonable doubt. State v. Wright, supra; State v. Sutton, 436 So.2d 471 (La.1983). The statutory rule provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found the defendant guilty beyond a reasonable doubt. 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. Thus, although the circumstantial evidence rule (La.R.S. 15:438) may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observance of the usual standard and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence. State v. Wright, supra; State v. Sutton, supra; State v. Chism, 436 So.2d 464 (La.1983).

In the instant case, Mrs. Newton testified that Mrs. Jacoby had phoned her before defendant went to the trailer and that after defendant left she saw no one go in or out of the trailer until she herself went in about fifteen minutes later. The only hypothesis of innocence is that another unseen, violent individual slipped in and out of the trailer and stabbed and bound Mrs. Jacoby in the short time available. 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 armed robbery and attempted first degree murder.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OP ERROR NO. 2

Defendant contends the trial judge erred in denying his motion for a new trial on the ground that he established the defense of insanity by a preponderance of the evidence; hence, no rational trier of fact could have found him sane at the time of the offenses.

Defendant has a history of psychiatric problems dating back to 1972. His medical records establish that defendant is a paranoid schizophrenic whose psychotic disorder is not curable but does get better or worse from time to time. Medication can bring about remission, which describes a continuum or various degrees of lessened symptoms. When medication is not taken, active psychosis returns as the body decom-pensates or fully metabolizes the drugs over time.

On March 20, 1978, defendant was discharged from East Louisiana State Hospital in Jackson “much improved” and on antipsychotic medication. He returned to the Jackson civil unit on March 31 and apparently was shifted over the next few days through both medical and correctional institutions. It is clear that on April 4 he was admitted to Southeast Louisiana State Hospital in Mandeville with reduced blood pressure and respiratory rates brought on by a severe overdose of antipsychotic medicine. Defendant was sent on April 5 to Charity Hospital, which concluded defendant had suffered a dystonic reaction, a severe stiffening of the muscles caused by his overdose, and therefore stopped defendant’s psychotropic medication. On April 11, defendant was returned to Mandeville with his psychosis in remission but still suffering from the overdose's physical symptomatology. He remained off antip-sychotic medication while his dystonia gradually dissipated. At 9:10 a.m. on April 21, defendant was given a buddy card enabling him to walk around the hospital grounds with another patient. He escaped and committed these crimes against Mrs. Jacoby about 5:00 p.m. on April 22. Norman Breazell of the Mandeville Police Department went to the Slidell police station on April 25 to take defendant into custody and when he first arrived about 8:45 a.m. saw him lying on his side on the station floor. However, when Officer Breazell returned a few moments later, defendant was standing and, after being advised of his Miranda rights, stated that he wished to consult with an attorney before making any statements. Thereafter, he appeared normal to the officer.

At arraignment, defendant entered a plea of not guilty and not guilty by reason of insanity to each charge. At trial, defendant elicited the testimony of three doctors, Dr. Kenneth A. Ritter, a practicing psychiatrist, and Drs. Theresita Jimenez and Aris Cox, staff psychiatrists of the Feliciana Forensic Facility where defendant had been confined before trial, and one social worker, Robert Horne, also of the Feliciana unit in Jackson. Dr. Jimenez first saw defendant in September 1980 at which time defendant was very psychotic. Based on defendant’s medical records and her subsequent treatment of him, she testified that at the time of the offenses defendant was unable to distinguish right from wrong. Dr. Jimenez believed that defendant would have decompensated in a week or possibly weeks after he was removed from medication. Dr. Ritter also testified that the antipsychotic drug on which defendant had presumably overdosed would have lost its major effect on someone as severely psychotic as defendant in two or maybe three weeks and that dosages every two weeks is the desired frequency. Based on his examination of defendant on October 21, 1981 and defendant’s medical records, Dr. Ritter stated that defendant had not been in a good remission since 1976 and has generally been unable to appreciate the difference between right and wrong. Mr. Horne and Dr. Cox also testified that defendant was actively psychotic and delusional when they saw him in June and July of 1978, respectively.

The state presented two psychiatrists to testify in rebuttal. Dr. Adrian Dean had defendant as a patient at Southeast Louisiana State Hospital in the days leading up to April 22. He saw defendant six to ten times in those eleven days and received progress reports from the hospital staff. Dr. Dean actively evaluated defendant during that period and concluded that defendant knew the difference between right and wrong at the time he issued defendant the buddy card on April 21, signifying defendant’s ability to follow the hospital rules and procedures and to communicate adequately. Dr. Dean saw no reason why defendant would not have known right from wrong some thirty hours later and believed it “not likely” that defendant had decom-pensated in that short interval to such an active psychosis that he would have lost that capacity. Dr. William Bloom, who first saw defendant in May 1978 and served on defendant’s sanity commission the following years, agreed that while individuals decompensate at various rates the antipsy-chotic effect of an overdosage outlasts the dystonic effect. Dr. Bloom stated the probability was “much greater” than fifty percent that defendant had not decompen-sated in the thirty-hour interval following Dr. Dean’s authorization of the buddy card and hence was sane at the time of the offenses. Both doctors testified that the alleged criminal action of defendant in itself did not alter their opinion, as it indicated nothing more than a desire to avoid apprehension.

A legal presumption exists that the defendant is sane and responsible for his actions. La.R.S. 15:432. The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence. La. Code Crim.P. art. 652. If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing right from wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. La.R.S. 14:14. In reviewing a claim of insufficiency of evidence in regard to a defense of insanity, this court applies the test set in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant had not proved by a preponderance of the evidence that he was insane at the time of the offense. Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979); State v. Noble, 425 So.2d 734 (La.1983); State v. Claibon, 395 So.2d 770 (La.1981).

The evidence indicates that defendant was mentally ill both before and after the criminal acts took place. However, every doctor testified that defendant at times knows right from wrong even though he remains ill. Drs. Ritter and Jimenez, neither of whom saw defendant until over two years after the crimes, admitted that making their determination so much later of defendant’s sanity on April 22, 1978 was very difficult. Both agreed that the best person to help the factfinder make its determination was the treating physician at the time closest to the incident. Dr. Dean had defendant in his care for the eleven days prior to the offenses and testified that defendant knew right from wrong on April 21. The crucial issue thus becomes whether defendant decompensated in the following thirty two hours. Drs.' Dean and Bloom maintained that defendant probably had not decompensated by the next day. Their opinion is supported both by the evidence that defendant had been overdosed into remission and that decompensation is a gradual deterioration and not a “snap” or sudden spontaneous process as well as by the uncontradicted testimony on defendant’s appearance immediately before and after the offenses. All of the witnesses agreed that when defendant is in an actively psychotic state, it is very obvious and can be discerned immediately. The trial judge, in finding defendant sane at the time of the offenses, relied on the conclusion made by Dr. Dean on April 21 in issuing defendant the buddy card that defendant “knows right from wrong and will be continuing to improve for three, four days” in combination with the testimony of Officer Breazell that on April 25 defendant appeared normal and declined to make any statement until he talked to a lawyer. See State v. Poree, 386 So.2d 1331 (La.1980) (on rehearing).

Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that defendant did not establish the defense of insanity by a preponderance of the evidence. Hence, the trial judge did not err in denying defendant’s motion for a new trial.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in imposing excessive sentences.

The defendant was sentenced to serve fifty five years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery and forty five years at hard labor for the attempted first degree murder. The sentences were made to run concurrently. The maximum penalties that defendant faced were imprisonment for ninety nine years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery and fifty years at hard labor for the attempted first degree murder. At the sentencing hearing, the trial judge considered evidence of defendant’s personal history and the nature of his crimes. Defendant, single and age twenty five, had no prior convictions and a lengthy medical history. However, the trial judge believed defendant was sane at the time of the offenses and had the capacity to contemplate the serious harm that his vicious attack on the elderly Mrs. Jacoby would cause. The trial judge did consider defendant’s mental problems but nonetheless found no significant mitigating circumstances beyond the defense on the merits. He concluded there was a great risk defendant would commit another crime absent confinement and constant correctional treatment.

La. Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable on appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). Given compliance with La.Code Crim.P. art. 894.1, a sentence will not be set aside as excessive in the absence of a manifest abuse of the trial judge’s wide sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979). The penalty imposed must be so grossly disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

Under the circumstances, we are unable to say that the trial judge abused his discretion in sentencing defendant to concurrent terms of fifty five and forty five years. We do not consider the penalties imposed to be so disproportionate to the crimes committed as to shock our sense of justice. Hence, we do not find defendant’s sentences excessive.

Assignment of Error No. 3 is without merit.

DECREE

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

DIXON, C.J., dissents with reasons.

BLANCHE, J., dissents and assigns reasons.

CALOGERO, J., dissents for reasons assigned by DIXON, J.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Viewing all the evidence in the record in the light most favorable to the prosecution, no rational trier of fact could find beyond a reasonable doubt that the defendant failed to present a preponderance of proof in support of the defense. State v. Price, 403 So.2d 660, 662 (La.1981). Nealy’s motion for a new trial should have been granted.

Since 1972 Nealy has suffered from severe mental disturbances. He has been in and out of mental institutions since 1976. Among other things, he thinks that a man in Alaska controls his behavior through a metal plate which the man had inserted in his head. As pointed out by the majority, Nealy was released on March 20,1978 from East Louisiana State Hospital in Jackson “much improved” and on antipsychotic medication. Nevertheless, eleven days later, on March 31, 1978, he was admitted to another institution, East Feliciana Facility, Civil Side. The admitting doctor’s report described Nealy as follows:

“On admission the patient was obviously belligerent, did not shake hands with the examiner and was brimming with hostility. He did not want to cooperate, although he did give some information during the interview. There appeared to be some blocking. There was no perseveration, but probably some looseness of associations and much paranoid associative ideas in his thinking. The patient was hostile but not depressed or elated. Patient had a fixed delusional system in which he thinks the police and the mental health authorities have plotted against him to make him come back to the hospital and that there is in reality nothing wrong with him. He also has heard footsteps in the back part of the house in which he lives. He also had heard people under the house, and he’s convinced that this is a plot to get him into trouble and to get him back to the hospital. He denies any visual hallucinations. He has used drugs in the past but none currently. His attention and comprehension seem to be good. He’s oriented in all spheres. It was felt the patient was above average in intelligence. The patient’s insight and judgment is severely lacking because of his mental illness. Diagnostic impression, schizophrenia, paranoid type.” (Emphasis added).

These events illustrate that Nealy could “decompensate” within eleven days and show how fragile this state of “remission” is and was in a case such as Nealy’s. Nevertheless, the majority concludes that Nealy had been overdosed into remission upon his return to East Louisiana on April 11 and that he could not have decompensat-ed by April 22.

In reaching the conclusion that Nealy was legally sane on April 22, 1978, when he attacked Mrs. Jacoby, the majority and the trial court rely heavily on the testimony of Dr. Dean, who was the last physician to see Nealy and the one who issued him the buddy pass. Dr. Dean testified that he did not issue buddy passes unless he thought that the patient knew right from wrong, knew the rules, and was able to behave accordingly. In this case, however, he was simply wrong. Nealy escaped.

Dr. Dean was unable to interview Nealy on April 11 because Nealy was still dystonic. His jaw was stiff. He had to be fed and taken care of by the staff. The only other interview of record was on the day Dr. Dean issued the buddy pass. In between, Dr. Dean observed Nealy in the halls and was kept informed by staff reports. The dystonia gradually wore off. The testimony of the other doctors was clear that Nealy’s delusional system was not necessarily apparent in a brief interview. Nealy is convinced that it is the medicine which makes him sick. The antip-sychotic medication is given to him intra-muscularly; he will not take it voluntarily. He is opposed to the doctors and especially to the medication. In short, he resists institutionalization and escaped at the first opportunity upon recovering from the overdose. Dr. Dean’s testimony must be viewed in light of the entire record and the other expert opinions.

In support of his plea of insanity, Nealy called four expert witnesses: one social worker and three psychiatrists. All of them were familiar with Nealy’s psychosis, having worked with him during his stays in the various mental hospitals and in preparing the sanity commission reports. According to their testimony, it appears that Nealy was and always will be a chronic paranoid schizophrenic. His disease is caused by chemical changes in his brain which affect his thought processes and which cause disorganization and the inability to know right from wrong. They admitted, however, that at times Nealy can be chemically stabilized with the appropriate drugs such that, although insane, he can be held accountable for his actions under the McNaughten standard of knowing right from wrong (R.S. 14:14). This stabilization is known as a remission of the disease, which would mean, in defendant’s case, that his hallucinations and delusions have dissipated to an extent that his behavior is partially controlled. In this regard, it is significant and indicative of his sickness that it took over two and one-half years after his attack on Mrs. Jacoby to improve sufficiently to be declared capable of proceeding. It is incredible that such a person could be so easily “overdosed” into remission.

In addition, Drs. Dean and Bloom, the two psychiatrists who testified for the state, agreed with those who testified on Nealy’s behalf that if he were taken off his antipsychotic or psychotropic medication he would decompensate to the point that he would no longer be in touch with reality, would have hallucinations and delusions, and would no longer be accountable for his conduct. In particular, Nealy becomes as-saultive when not on his medication. The doctors believe that his assaultiveness is related to his mental disease.

The psychiatrists who testified for Nealy believed that Nealy would decompensate within two weeks of not receiving any medication, due to the severity of the chemical imbalance and the nature of his metabolism. The daily doses of medication that he received in order to bring him into a state of remission sufficient for him to stand trial were, according to Robert Horne, the social worker who testified on his behalf, “enough to kill a horse.” The two psychiatrists who testified for the state, however, were not as clear on this issue and could only speak of what they had encountered in their experience with other patients. One admitted that it was possible that he could have decompensated by April 22; however, both of them doubted it, stating that the medication normally remains in a person for several weeks or even months. Horne, on the other hand, testified that he personally witnessed such a. rapid decompensation when Nealy, at one point, was removed from his medication by a new doctor who felt that the dosages were too high. Nealy, according to Horne, “went to pieces” and had to be restrained for some time thereafter in a straightjacket and put in solitary confinement. It is quibbling whether one calls this a “snap” or “deterioration.” When it happens, Nealy is dangerous.

Contrary to Dr. Dean, Nealy’s experts also testified that issuing a patient a buddy pass did not mean that that patient was sane or knew the difference between right and wrong; it was simply a method of treatment. In addition, Horne testified that on one or two occasions the doctors would conclude that Nealy was in a sufficient state of remission to allow him to engage in a work therapy program within the confines of the institution, but that on at least one occasion Nealy had tried to leave when given this minimum amount of freedom. Thus, Nealy was capable of misleading even the doctors, very familiar with his case.

Regrettably, Nealy’s defense counsel did not call Nealy’s brothers or his mother to testify about Nealy’s behavior after the attack on Mrs. Jacoby and before they brought him to the Slidell police station. Though their testimony might not have been disinterested and would have been lay testimony, it nevertheless would have shed light on his mental condition immediately after the attack. The majority concludes that Nealy’s actions after the offense indicate that he was still in a state of remission despite the fact that Nealy was lying on the floor of the police station for five minutes when Officer Breazell arrested him two days after the attack. ■

Viewing the entire record, including the sanity commission transcripts, and with due respect to the findings of the judge below, no rational trier of fact ought to have concluded beyond a reasonable doubt that David Nealy did not prove by a preponderance of the evidence that he was unable at the time of the attack on April 22, 1978 to distinguish right from wrong. R.S. 14:14; Moore v. Duckworth, 443 U.S. 713. 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979) (per curiam); State v. Roy, 395 So.2d 664 (La.1981). Although the state did introduce rebuttal evidence, it was insufficient to affect this conclusion. Nealy was probably legally insane prior to the overdose which resulted in ultimatély withholding his medication from him. Even if he was in a state of remission, he proved by a preponderance of the evidence that he would have decompensated by the time of the attack on Mrs. Jacoby, some two and one-half to three weeks after his last dosage of antipsychotic medication.

The picture that emerges from . this record is that David Nealy is a cunning, dangerous, and yet very sick individual. There is no question that he needs institutionalization in a secure environment where he can receive professional help. His illness is permanent; he will never recover. The place for him is an institution where people are trained and equipped to handle people like Nealy, not a prison.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The evidence depicts Nealy as a person with severe mental disturbances to the extent of being incurably insane. Nealy was dilusional as well as hostile and dangerous. He was obsessed with fear of hospitalization and being required to take medication.

The responsibility for this crime hinges on whether Nealy had decompensated from the tremendous doses of thorazine which had been previously administered to him. The only cogent evidence that defendant might not have decompensated came from the testimony of the treating physician who issued the buddy pass which facilitated defendant’s escape. Weighed against the overwhelming evidence of Nealy’s condition prior to and after his escape and testimony of four expert witnesses which established that Nealy could have decompensat-ed two weeks after treatment was suspended, the State’s evidence is insufficient to rebut defendant’s claim of insanity. Therefore the defendant has shown by a preponderance of the evidence that he was insane at the time of the offense.

      . None of these commission reports nor a later one on August 31, 1981, addressed the question of defendant's mental condition at the time of the offenses.

      . Mrs. Jacoby did not testify at trial, having died on December 16, 1978 from an unrelated cause.

      . Defendant neither briefed nor argued this assignment of error on appeal; therefore, normally it would be considered abandoned. State v. Carlisle, 315 So.2d 675 (La.1975). However, this assignment of error is nevertheless before us because of a pro se brief filed with this court by defendant’s brother before the case was submitted.

      . Mrs. Jacoby subsequently filed a civil action against the state for negligence in allowing Nealy to escape. Jacoby v. State, through Department of Health and Human Resources, 434 So.2d 570 (La.App.1983), writ denied, 441 So.2d 771 (La.1983).

      . Nealy’s brother relates in his pro se brief to this court how he and another brother found Nealy the day after the crime in a "very bad mental condition" and how they took him to the police seeking medical attention. He points out that Nealy was under the state's care prior to the attack and was immediately placed back in a mental institution for two years following his arrest and prior to his trial. He argues that Nealy, therefore; must have been insane at the time of the attack. He blames the state for allowing Nealy to escape. He reiterates Nealy’s claim that Ñealy should have been found not guilty by reason of insanity.


author: WATSON, J.,

text:
    STATE of Louisiana ex rel., Warren HENRY v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2327.
    Supreme Court of Louisiana.
    May 4, 1984.
   Granted. See Per Curiam.

WATSON, J.,

dissents.

Granted. From the transcript of his remarks at sentencing, it is unclear whether the trial judge was aware of his sentencing alternatives at the time but chose not to exercise them in that particular case. Accordingly, relator’s sentence is vacated and this case is remanded to the trial court for resentencing in accord with the law.


text:
    STATE of Louisiana, ex rel. Arthur TURNER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KP-0632.
    Supreme Court of Louisiana.
    May 4, 1984.
   Writ Granted. Judgment of the district court is reversed and the case is remanded for reconsideration. The trial court has no authority to order that relator be considered for parole. At most, if the trial court finds relator’s claim meritorious, he may nullify the guilty plea because it was induced by a commitment which the state later found it was unable to fulfill. See La.R.S. 15:574.4(B).

MARCUS and WATSON, JJ., concur, being of the opinion that State v. Dunn, 408 So.2d 1319 (La.1982), controls in this case.


author: DIXON, C.J.,

text:
    STATE of Louisiana v. Herman J. TASKER. STATE of Louisiana v. Marshall D. TASKER.
    No. 84-K-0790.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Herman J. Tasker and Marshall D. Tasker, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Nos. 83-KA-0950 and 83-KA-0851; 18th Judicial District Court, Parish of Iber-ville, Nos. 2006-81 and 2007-81.

Denied.

DIXON, C.J.,

concurs in the denial but would reserve to defendant the right to raise the issue of ineffective assistance of counsel in post-conviction proceedings.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Lee S. MATTHEWS.
    No. 82-KA-2552.
    Supreme Court of Louisiana.
    May 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., James Maxwell, David C. Loeb, Paul Connick, Jr., Abbott J. Reeves and Louise Korns, Asst. Dist. At-tys., for plaintiff-appellee.
    Frank J. Uddo, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Lee S. Matthews was indicted by the grand jury for the second degree murder of Dorothy A. Pennino in violation of La.R.S. 14:30.1. After trial by jury, he was found guilty as charged and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on fourteen assignments of error for reversal of his conviction and sentence. Eleven of these assignments of error do not'present reversible error nor do they involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published but which will comprise part of the record in this case. The three remaining assignments of error involve the sufficiency of the evidence to support defendant’s conviction.

FACTS

Defendant and his stepson, James Mar-chadie, were originally charged together with the murder of Dorothy Pennino. Mar-chadie, age 24, pled guilty to manslaughter in July 1981 and was sentenced to serve seventeen years at hard labor. He testified at defendant’s trial in April 1982 that defendant and he had decided the night of June 29, 1980 to make Mrs. Pennino, their next door neighbor, stop her constant quar-relling with their family. Defendant and Mrs. Pennino had had an affair which apparently defendant had broken off some time before. Thereafter, Mrs. Pennino had instigated fights and frequent vulgar shouting matches with defendant’s family. One such altercation led to defendant’s and Marchadie’s decision to take Mrs. Pennino out somewhere that night and beat her up to get her to quit. Defendant and Marcha-die agreed that while Marchadie hid under a blanket behind the back seat, defendant would get Mrs. Pennino into the station wagon by telling her they were going to make love somewhere. Defendant did pick Mrs. Pennino up and then drove to a secluded spot along the Intracoastal Waterway. Marchadie testified he heard defendant and Mrs. Pennino exit the car and a minute later heard a loud slap. Marchadie came out of the car and grabbed Mrs. Pennino by both shoulders as she ran back towards the car. As they yelled at each other, Marchadie shook her and struck her with an open hand across her face. Defendant then came up behind her and hit her in the back of the head. Mrs. Pennino went limp and Marchadie turned her loose, whereupon she fell to her knees and then forward on her face. Defendant dropped his knee in the middle of her back and grabbing the back of her head with both hands smashed her face into the concrete several times. Defendant and Marchadie picked up the unconscious Mrs. Pennino and placed her still face down over the highway railing onto the sloping ground above the canal. Before driving off, Mar-chadie went back and rolled her over on her back, concluding then that “we had killed her.” The numerous photographs of the crime scene identified by Marchadie and police officers at trial show that at that location the small area between the highway railing and the canal slopes sharply down to the nearby water.

Mrs. Pennino’s body was found floating at the edge of the canal the next night, June 30, 1980. On the roadway above, the police discovered jewelry and other items belonging to Mrs. Pennino, a pool of blood and a pair of sunglasses belonging to one of defendant’s stepchildren. Dr. Patrick Besant-Matthews, the pathologist who performed the autopsy, testified that the cause of death was drowning. He was unable to determine whether or not the victim had been beaten about the face because of the significant tissue deterioration caused by exposure to water and marine organisms. He further testified that while he had found evidence of alcohol in Mrs. Pennino, much of that was produced by the body’s decompensation or fermentation and thus she probably had had two or three drinks at most before her death.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion for a new trial on the ground that the state did not prove defendant caused the victim’s death. He argues that the victim died from drowning rather than from injuries sustained in the beating.

In a prosecution for murder, the criminal agency of defendant as the cause of the victim’s death must be established beyond a reasonable doubt. This court has held that “[i]t is not essential that the act of the defendant should have been the sole cause of the death; if it 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.” State v. Wilson, 114 La. 398, 38 So. 397 (1905) (death from pneumonia caused by gunshot wound); State v. Matthews, 38 La.Ann. 795 (1886); State v. Scott, 12 La.Ann. 274 (1857). A similar standard for determining causation-in-fact approved by LaFave and Scott in their treatise on criminal law was adopted by this court in State v. Durio, 371 So.2d 1158 (La.1979): “Was the defendant’s conduct a substantial factor in bringing about the forbidden result?” W. LaFave and A. Scott, Handbook on Criminal Law § 35, at 250 (1972). Accord F. Wharton, Criminal Law § 26, at 126 (14th ed. 1978); O. Warren, Homicide § 71 (1938); see also Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) (defendant’s conduct was a “sufficiently direct cause of the ensuing death” under New York law to sustain a conviction of murder in the second degree where defendant and another robbed an intoxicated man and left him on the highway where he was killed by a speeding truck); State v. Chavers, 294 So.2d 489 (La.1974), cert. denied, 419 U.S. 1111, 95 S.Ct. 786, 42 L.Ed.2d 808 (1975) (manslaughter conviction sustained where victim was discovered two days after having died of a heart attack caused by aggravation of his pre-existing heart condition during his beating and robbery by defendant and another). In Durio, this court affirmed convictions for second degree murder, even though the victim died of bronchial pneumonia and not from her head injuries inflicted during her beating by defendants, because the defendants’ conduct was established as the “legal cause” of her death by the evidence showing that the probable cause of the pneumonia was the victim’s weak condition due to those injuries.

It is equally clear that the legal cause of Mrs. Pennino’s death was the beating inflicted on her by defendant. He battered the victim into unconsciousness by smashing her head into concrete and then left her body in an isolated spot at night on the slope directly above the canal where she was found drowned the next evening. While the immediate cause of death was drowning, these acts of defendant were a clearly contributing cause even if the victim rolled, crawled or stumbled into the water.

In sum, the evidence clearly supports findings that defendant had specific intent to at least inflict great bodily harm on Mrs. Pennino and that his conduct was a substantial factor in bringing about her death. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the state proved beyond a reasonable doubt the essential elements of second degree murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Therefore, the motion for a new trial was properly denied.

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant contends the trial judge erred in denying his motion for a new trial on the ground the state failed to prove he beat the victim except by the uncorroborated testimony of an accomplice.

Marchadie testified that he was present and helped while defendant beat Mrs. Pen-nino into unconsciousness. The trial judge instructed the jury on the credibility of witnesses and specifically on accomplice testimony. See State v. Hamilton, 312 So.2d 656 (La.1975). The jury in weighing Marchadie’s credibility had the benefit of a full cross-examination which revealed no promises were made in exchange for his prior plea of guilty to manslaughter, seventeen-year sentence and testimony at defendant’s trial.

A jury may convict upon an accomplice’s uncorroborated testimony. State v. Hamilton, supra; State v. Matassa, 222 La. 363, 62 So.2d 609 (1952). This court on appeal will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Trosclair, 443 So.2d 1098 (La.1983). Viewing the evidence in the light most favorable to the prosecution, we find a rational trier of fact could have concluded the state proved defendant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Hence, the trial judge did not err in denying the motion for a new trial.

Assignments of Error Nos. 3 and 4 are without merit.

DECREE

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

      . This matter was previously before this court. After the trial judge denied defendant’s and his wife’s pretrial motions to suppress inculpatory statements given to police officers following their arrests, we granted certiorari and after argument amended the trial judge’s rulings to grant the motions to suppress the statements and remanded the case for further proceedings. State v. Matthews, 408 So.2d 1274 (La.1982).


author: BLANCHE, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Joseph WHITE.
    No. 82-KA-2607.
    Supreme Court of Louisiana.
    May 14, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William Campbell, David L’Hoste, Bruce Bailey, Asst. Dist. Attys., for plaintiff-appellee.
    Milton Masinter, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

The defendant in this case was arrested and charged by bill of information with possession of heroin with intent to distribute, a violation of La.R.S. 40:967. After a jury trial, defendant was found guilty and sentenced to life imprisonment. From this conviction, defendant now appeals.

FACTS

Two New Orleans police officers, Detective Bruce Adams and Officer Ronald Johnson, were traveling in an unmarked police car on January 17,. 1980, when they were flagged down by an unidentified man. This anonymous individual told the officers that the defendant was standing on the corner of Dorgenois and London Avenue, with a match box full of heroin in his possession, waiting to sell the drug. Based on this information, the two officers arrived at the street corner described by the informant, and observed defendant talking to several other men, while holding a matchbox with silver tin foils protruding from it. The police then stopped and frisked defendant and made a field test of the contents of the matchbox. Defendant and the other men present were then arrested and taken to the Narcotics Division of the New Orleans Police Department. Subsequently, the other three men were released.

Tests of the contents of the matchbox revealed the substance to be heroin. All totaled, defendant was carrying twenty-seven foils of heroin at the time of his arrest. Based on these facts, defendant was charged with possession of heroin with intent to distribute.

At trial, Officer David Peralta of the New Orleans Police Department was qualified, over defense objections, as an expert in the area of packaging and distribution of controlled dangerous substances. Officer Peralta testified that the heroin seized was valued at $900 and was approximately the size of a “bundle”, the normal wholesale quantity of heroin. After this explanation, the following colloqy ensued:

MR. L’HOSTE: This is a hypothetical question. If someone is standing on the corner of London and Dorgenois with a matchbox which contained twenty seven foils of heroin, in your professional opinion, what is the probability — what is the purpose of him standing there with that match box of heroin ...
WITNESS: In my opinion, a person standing on the street corner with a matchbox containing say twenty-seven tin foils containing heroin, would be there for the purpose of selling or distributing.

Counsel for defendant objected to the questions, arguing that the question purported hypothetical stated facts which were identical to the evidence in the instant case and that the expected answer would usurp the function of the jury. However, the court considered the question merely a hy-pothet and overruled defense’s objection.

Later in the trial, the State attempted to impeach one of the defendant’s witnesses, Robert Norwood, by introducing a statement made by Norwood to one of the arresting officers. Norwood denied making the statement, and over defense objection, the officer was permitted to testify to the fact that a statement was made, without going into the substance of the statement.

In appealing his conviction, defendant assigns as error the court’s qualification of Officer Peralta as an expert and particularly, his testimony in response to the State’s hypothet. Additionally, defendant objects to the trial court’s failure to give a limiting instruction to the jury regarding the State’s impeachment of Norwood.

Assignment of Error No. 1

By this assignment, defendant complains both of Officer Peralta’s qualification as an expert in narcotics trafficking and package, and more specifically, to his being allowed to answer the State’s detailed hypothet.

Before any witness can give evidence as an expert, his competency so to testify must have been established to the satisfaction of the court. La.R.S. 15:466, State v. Trosclair, 448 So.2d 1098 (La.1983). Officer Peralta offered the following qualifications: (1) a bachelor’s degree in Criminal Justice; (2) a graduate of a two week school run by the Department of Justice Drug Enforcement administration; (3) graduation from the New Orleans Police Academy; (4) five years experience on the Narcotics Division of the New Orleans Police Department; (5) appearances at the police academy and several universities as a lecturer in the field of distribution of narcotics; (6) qualification as an expert in all sections of the Orleans Parish Criminal District Court.

This lengthy list of qualifications satisfied the trial judge that Officer Peralta was an expert in drug trafficking. Given the officer’s experience and training, we find no abuse of discretion on the part of the trial judge in accepting Peralta as an expert witness.

Assuming the officer was competent to testify concerning the practices of drug dealers, the question remains as to whether the officer could give his opinion to the hypothetical question posed by the State.

La.R.S. 15:464 provides that:

On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.

Clearly, an expert in drug distribution can give his opinion as to practices about which the average juror would have no competence. Earlier in his testimony, Officer Peralta testified that possession of twenty-five foils of heroin was generally considered a wholesale amount of heroin. Transc., p. 57. This was permissible opinion testimony, since knowledge of the amount of heroin usually used or possessed for personal consumption as distinguished from amounts possessed for sale or distribution was not a fact within the knowledge of the average individual.

On the other hand, the ultimate issue of the defendant’s guilt is not a question reserved for an expert witness. In State v. Wheeler, 416 So.2d 78 (La.1982), this Court held that the testimony of a narcotics officer in response to a hypothetical question was in fact an expression of opinion as to the defendant’s guilt and constituted reversible error. The expert in Wheeler was given a detailed hypothet paralleling the actual fact situation produced at trial, in which the defendant was apprehended on a street corner, holding a grocery bag containing ten coin envelopes full of marijuana. He was then asked:

Q. In your expert opinion what is the likelihood of this individual being involved in the distribution of marijuana?
A. In my opinion the person would be involved in the distribution of marijuana, he might have a dime bag, but not several dime bags and he would not have $350.00.

416 So.2d 78, 79. This court found that the officers’ testimony “was tantamount to an opinion that the defendant was guilty of the crime charged” an issue over which the officer was no more expert than the jurors, 416 So.2d at 81.

In State v. Montana, 421 So.2d 895 (La.1982), the defendant was arrested with his girlfriend for possession of heroin with intent to distribute. The officer testifying as an expert in drug trafficking was asked whether in his opinion, if a male and female were arrested, the male carrying $470.00 in cash and the female holding two balloons filled with heroin, the two were planning to distribute the heroin. Again, the facts in the hypothet were identical to the evidence of defendant’s activities shown at trial. Applying Wheeler, this court noted that inferences as to the ultimate issue of defendant’s guilt are for the jury alone to determine, and held that the court’s admission of the expert’s opinion testimony constituted reversible error. 421 So.2d at 900.

Comparing the present case with the Montana and Wheeler decisions, we find nothing which would distinguish the instant case and permit the testimony of Officer Peralta. The hypothetical factual situation posed by the State was virtually identical to the actual evidence produced at defendant’s trial. By stating that in his opinion, a person standing on a streetcor-ner with 27 foils of heroin was there for the purpose of selling narcotics, Officer Peralta was usurping the jury’s function as finder of fact.

This assignment of error has merit.

Assignment of Error No. 2

By his second assignment of error, defendant urges that the trial court erred in allowing the State to impeach Robert Norwood by offering a prior inconsistent statement without giving a limiting instruction to the jury.

During the trial, the trial judge was careful not to allow Norwood’s impeachment to go beyond the officer’s testimony that Nor-wood did in fact make the statement, which he had previously denied. Clearly a statement by Norwood that described a statement made by defendant was hearsay, and was admissible only on the issue of credibility and not as substantive proof of defendant’s guilt. State v. Allien, 366 So.2d 1308 (La.1978). Had defendant so requested, the trial court would have been required to give a limiting instruction. By failing to specifically request such an instruction at the time, however, defendant waived his right to complain on appeal. State v. Laprime, 437 So.2d 1124, 1126-7 (La.1983), State v. Ray, 259 La. 105, 249 So.2d 540 (La.1971).

This assignment of error lacks merit.

DECREE

Because we find that the first assignment of error has merit, we reverse defendant’s conviction, vacate his sentence and remand for a new trial.

REVERSED AND REMANDED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

Prior to the “hypothetical question” in dispute, the state established that Officer Peralta had special knowledge, based on experience, of the methods typically employed in heroin distribution. This special knowledge would have been helpful to the jury in deciding whether defendant was guilty of distribution of heroin.

The import of Officer Peralta’s answer to the “hypothetical question” was that the described conduct was typical of a person involved in the distribution of heroin. Since the content of the answer constituted admissible evidence, it was relatively unimportant that the form of the question was improper. In any event, the improper form was not so prejudicial as to require reversal of the conviction of this clearly guilty party.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Glenn CREEL.
    No. 83-KA-0904.
    Supreme Court of Louisiana.
    May 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Robert D. Long, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Broderick Bagert, Richard B. Stricks, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

This case presents a question relative to when a criminal trial court’s jurisdiction is divested under La.C.Cr.P. art. 916. Because we find that the trial court was never divested of its jurisdiction, we will treat this as an application for supervisory writs which we hereby grant for the sole purpose of addressing the jurisdictional issue contained herein.

The defendant, Glenn Creel, was charged by bill of information with distribution of a controlled dangerous substance in violation of La.R.S.. 40:968 on May 2, 1977. He was found guilty of the charged offense on July 7, 1977. Prior to sentencing, defendant filed a motion for a new trial on.September 1, 1977, which was denied by the trial court on September 9, 1977. On December 9, 1977, prior to sentencing on the original conviction, the state filed a multiple offender bill against the defendant pursuant to La.R.S. 15:529.1 alleging that the defendant had two prior Louisiana felony convictions and one prior Mississippi felony conviction. On January 13, 1978, the trial court found the defendant guilty as a third offender under La.R.S. 15:529.1 and sentenced him to nine years at hard labor.

On the same day, the defendant filed a motion for an appeal under La.C.Cr.P. art. 914. This motion for an appeal contained an order directing the court reporter to prepare the record and transcript of the proceedings and an order that the defendant present his assignments of error within thirty days. The trial judge signed these orders. We note, however, that nowhere in the record or the trial court minutes is there an order of appeal or the setting of a return date by the trial court as required under La.C.Cr.P. art. 915.

On April 26, 1978, apparently on its own motion “in the best interests of Louisiana and the defendant”, the trial court vacated the defendant’s conviction and sentence and ordered that the defendant be granted a new trial “to be retried on a [sic] highest priority the State can give this matter.”

The case lay dormant until January 20, 1982, when the State filed a motion to make the sentence executory. On March 8, 1982, the defendant filed an objection to the state’s motion and also filed a motion to quash the prosecution. Although the defendant’s motions contained orders signed the same day by the Honorable Louis P. Trent, judge ad hoc for section “I” of the Criminal District Court, Parish of Orleans, denying the State’s motion to make the sentence executory and quashing the bill of information for untimely prosecution, the court minutes reflect that the trial court ruled on March 9, 1982, that it did not have jurisdiction to decide either of the defendant’s motions.

We are thus faced with the question of whether the trial court was ever divested of its jurisdiction when the defendant filed his motion for an appeal on January 13, 1978. We find that the trial court was never so divested of its jurisdiction.

At the time of trial, La.C.Cr.P. art. 915 read, in pertinent part:

A. When a motion for an appeal is made in conformity with Articles 912 and 914, the court shall order an appeal and set the return date in the order. When a motion for an appeal has been timely filed, the appeal shall not be affected by any fault or omission on the part of the trial court. (Emphasis added.)

La.C.Cr.P. art. 916 reads, in pertinent part:

The jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except to: (Emphasis added.)

The language of La.C.Cr.P. arts. 915 and 916 is clear and unambiguous. In order for the trial court to be divested of its jurisdiction, an order of appeal must be entered. An examination of the record and the trial court minutes reflects that an order of appeal was never entered in this case. Additionally, we note that no notice of any order of appeal was filed with this Court as required under La.C.Cr.P. art. 915.1.

While it is true that the defendant filed a motion for appeal on January 13, 1978, thus preserving his right to appeal, see La.C.Cr.P. art. 914, the order emanating from this motion was merely preparatory in nature and did not constitute an order of appeal. The order signed by the trial court on January 13, 1978, did two things; it ordered the court reporter to prepare the record and the trial transcript, and it ordered the defendant to file his assignments of error within thirty days of the signing of the order. The order did not order an appeal, nor did it set a return date for an appeal. It did not even state that defendant’s motion for an appeal had been granted. As such, it did not constitute an “order of appeal” such as to divest the trial court of its jurisdiction. La.C.Cr.P. art. 916.

As the trial court was never divested of its jurisdiction, the April 26, 1978 order vacating the defendant’s conviction and sentence and ordering a new trial was a valid exercise of the trial court’s discretion under La.C.Cr.P. art. 851(5). The trial court, realizing that it had made a mistake in denying the defendant’s motion for a new trial, reconsidered its previous action and granted a new trial. As jurisdiction had not yet been divested, the trial court still retained jurisdiction to so act.

DECREE

For the reasons stated, the application for supervisory jurisdiction is granted and the case is remanded to the trial court for proceedings consistent with this opinion.

WRIT GRANTED; CASE REMANDED

LEMMON, J., dissents and assigns reasons.

      . By this time, the original trial court judge had left to sit on the Fourth Circuit Court of Appeals and this case had been transferred to a different judge.

      . La.C.Cr.P. art. 915 was later amended by Acts 1982, No. 143, § 1 to provide, among other things, that the court order the appeal and set the return date "immediately.”

      . La.C.Cr.P. art. 851(5) states:
      The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      The court, on motion of the defendant, shall grant a new trial whenever:

      (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.