author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Larry PAYNE, Defendant-Appellant.
    No. CR84-379.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Denied March 8, 1985.

      James Spruel, Jr., Gray, Clemons & Spruel, Lake Charles, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., Donald Richard, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
    Before FORET, CUTRER and CULPEP-PER, JJ.

       William A. Culpepper, Judge ad hoc.

   CUTRER, Judge.

The defendant, Larry Payne, was indicted by a grand jury for second degree murder in violation of LSA-R.S. 14:30.1. On December 21, 1983, a twelve member jury found the defendant guilty as charged. Defendant was sentenced to life imprisonment without the benefit of probation, parole or suspension of sentence. Defendant appeals. We affirm.

FACTS

On August 7, 1983, the defendant, Larry Payne, arrived at the courthouse in Opelou-sas and informed police that he needed help, that he had just shot someone. Defendant directed officers to the scene, at which other police had already arrived. Defendant at first told the officers he had thrown the weapon in a bayou but later he turned the murder weapon in to the officers. The deceased victim, Clarence Randall, was found lying face down in a small dining room to the rear of his home. A .25 caliber semi-automatic pistol was found under his hand.

Raymond Randall, the son of the victim, testified that his father owned a .25 caliber pistol. The weapon found at the scene was not operable. The slide was lodged partially open and no shell was in the barrel. The circumstances indicated that the weapon had not been recently fired. Raymond Randall had been asleep on a sofa in the living room and was awakened by the shots, but did not see the actual incident.

Defendant’s wife, who was visiting Randall, gave eyewitness testimony. She stated that defendant came into the house, pulled a gun from inside his shirt and shot Randall twice, once in the head and once in the chest. She stated that Randall did not have a gun in his hand when he was shot.

The defendant testified that he went to Randall’s house to purchase car parts and that, on arrival, he asked to use his bathroom. He said that Randall followed him to the door of the bathroom, pushed him and fired a shot. Defendant then claims to have drawn his own gun and shot Randall in self-defense.

ASSIGNMENT OF ERROR

After the verdict, defendant moved for acquittal or, alternatively, that his conviction of murder be reduced to manslaughter. His sole assignment of error is that the trial court erred in denying this motion.

In brief, defendant argues that the State failed to prove that he had the specific intent to kill or inflict great bodily harm required by LSA-R.S. 14:30.1. He also argues that the State failed to prove beyond a reasonable doubt that the homicide was not committed in self-defense.

The appellate standard of review for the sufficiency of the evidence was set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and has been held to be applicable to cases involving direct or direct and circumstantial evidence. State v. Washington, 421 So.2d 887 (La.1982); State v. Hebert, 444 So.2d 228 (La.App. 1st Cir.1983). The Jackson v. Virginia standard requires that the evidence, when viewed in the light most favorable to the prosecution, must be sufficient for a rational trier of fact to conclude that the essential elements of the crime were established beyond a reasonable doubt.

Second degree murder is defined in pertinent part by LSA-R.S. 14:30.1 as:

“Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or inflict great bodily harm;

Specific intent is defined by LSA-R.S. 14:10 as:

“Criminal intent may be specific or general:
(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

As a state of mind, specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982). Here, the defendant testified that he shot the victim in the head and chest while the victim was standing close enough to push him. From this it can be inferred that the defendant had the specific intent to kill or inflict great bodily harm. State v. Noble, 425 So.2d 734 (La.1983). Thus, the State sufficiently met its burden of proving that defendant had the specific intent to kill or inflict great bodily harm upon Randall.

Defendant also argues that he shot Randall in self-defense. Justifiable homicide is defined by LSA-R.S. 14:20 as:

“A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; .... ”

Thus, a homicide is justifiable as self-defense only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. State v. Guinn, 319 So.2d 407 (La.1975); State v. Brockington, 437 So.2d 994 (La.App. 3rd Cir.1983).

However, the defendant who asserts self-defense does not assume any burden of proof on that issue. The State has the affirmative duty of proving beyond a reasonable doubt that the homicide was not perpetuated in self-defense. State v. Sylvester, 438 So.2d 1277 (La.App. 3rd Cir.1983), aff’d 444 So.2d 606 (La.1984); State v. Brockington, supra; State v. Pittman, 428 So.2d 979 (La.App. 1st Cir.1983), writ den., 433 So.2d 155 (La.1983), U.S. cert. den., _ U.S. _, 104 S.Ct. 122, 78 L.Ed.2d 120 (1983). Thus, the State must show beyond a reasonable doubt that the defendant did not reasonably believe that he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary to save his life.

On appeal, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Sylvester, supra; State v. Brown, 414 So.2d 726 (La.1982).

The defendant and his wife, Mrs. Jane Payne, had been physically separated since 1979. Despite this informal separation, the couple was on friendly terms and visited each other occasionally. On August 7, 1983, Mrs. Payne was visiting a friend, Clarence Randall, at his house. According to Mrs. Payne, they were not “dating;” they were just friends. Defendant claimed he needed an auto part, so he went to Randall’s house to see if he could buy it from Randall. He knocked on the door and Randall answered it. Mrs. Payne heard the two men talking about auto parts. Randall attempted to latch the door but defendant pushed the door open and came inside the house anyway.

Mrs. Payne testified that no one was talking as the men walked in. Suddenly, defendant pulled up his shirt, pulled out a .38 caliber pistol, and aimed at Randall’s head. Mrs. Payne yelled, “Larry, don’t do that,” but defendant shot Randall in the head. Randall raised his hands in a defensive manner in front of his face which caused the bullet to go through his left arm and fatally strike his head. Mrs. Payne pleaded with defendant again but he fired another shot into Randall’s chest. She stated that Randall did not have a gun in his hand when he was shot.

After the second shot, Randall whirled around and fell; the shots woke up Randall’s son, Raymond Randall, who was sleeping on the sofa in the front room. He ran into the back room and saw defendant standing over his father. Raymond Randall ran from the house to a neighbor’s house and called the police. Mrs. Payne ran out of the house in fear and later returned to find that the defendant was gone.

The defendant testified that Randall let him in the house for him to use the bathroom. The defendant initially testified that, as he was walking to the bathroom, Randall pushed him from the back and shot at him. Defendant stated that he turned around, pulled his gun from inside his shirt and shot Randall in the head and chest. At another point in his testimony, defendant stated that, as he turned around he saw Randall pull a gun from his pocket. When confronted with this contradiction, defendant reverted to his original story that Randall shot before he turned' around. When he was later asked if Randall shot at him, he answered “I don’t know.” There was no empty shell from the weapon located in the room, nor was there any bullet holes located that may have been made by the automatic. This gun, when examined by the forensic expert, showed that no shell had been shifted into the barrel, thus, it was not in a firing position.

The police testified that the .25 caliber automatic was found near the hand of Randall. We note that, as soon as the shooting ended, Randall’s son and Mrs. Payne left the house, leaving only the defendant and Randall in the room. Defendant, at one point in his testimony, stated that he had seen the gun in Randall’s pocket. Under the circumstances the jury could have concluded that Randall either pulled the automatic after being shot or that it was placed near his hand by the defendant after the shooting took place. The jury, faced with conflicting testimony, obviously accepted the testimony of Mrs. Payne.

In the case of State v. Trosclair, 443 So.2d 1098 (La.1983), the court held:

“The defendant claims, however, that a guilty verdict could not properly be founded upon the testimony of these witnesses as their credibility was destroyed. But it is not our function to assess credibility or reweigh the evidence. Our review for minimal constitutional sufficiency of evidence is a limited one which ends upon our finding that the rational trier-reasonable doubt standard has been satisfied.”

See also, State v. Wright, 410 So.2d 1092 (La.1982); State v. Klar, 400 So.2d 610 (La.1981) and State v. Porter, 454 So.2d 220 (La.App. 3rd Cir.1984). We may not, therefore, find incredible the testimony of a witness, which was obviously found credible by the appropriate factfinder. Thus, the determination of the credibility of Mrs. Payne by the jury will not be disturbed on appeal.

In viewing the evidence in the light most favorable to the prosecution, the jury had sufficient evidence to find that the State proved its case beyond a reasonable doubt.

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

AFFIRMED.

      . Counsel for the defendant told the court, in oral argument, that he had informed Mrs. Payne that the law gave her the privilege to refuse to testify against her husband. She, however, waived the privilege.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Mark R. SMITH, Defendant-Appellant.
    No. CR84-400.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      James S. Gravel, Gravel & Van Dyke, Alexandria, for defendant-appellant.
    Edward E. Roberts, Jr., Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before FORET, CUTRER and CULPEP-PER, JJ.

       William A. Culpepper, Judge ad hoc.

   CUTRER, Judge.

The defendant, Mark R. Smith, was charged by a bill of information with the crime of armed robbery, a violation of LSA-R.S. 14:64. After a jury trial, defendant was sentenced to serve twenty years at hard labor without benefit of probation, parole or suspension of sentence. Defendant appeals urging three assignments of error.

FACTS

On November 6, 1983, at approximately 3:30 P.M., the assistant manager of Bobby’s Fried Chicken was robbed by a man with a gun. There were two eyewitnesses. In addition, the defense stipulated that defendant was the man with the gun. Defendant alleged that he had robbed the store during a “blackout,” and had no memory of the actual robbery.

The assignments of error presented on appeal are as follow:

(1) The trial court erred in overruling defendant’s application for appointment of a sanity commission;
(2) The trial court erred in not granting a new trial when the assistant district attorney, in closing argument, said “He’s guilty,” and
(3) The trial court erred in that the judgment of the jury should be set aside because, when all the evidence is viewed most favorable to the prosecution, reasonable men must find that the defendant was insane at the time of the perpetration of the crime.

ASSIGNMENT OF ERROR NUMBER 1

The defendant urges that the trial court erred in overruling defendant’s application for appointment of a sanity commission. Defendant urges that, at the time of the trial, he lacked the mental capacity to proceed with the trial.

Mental incapacity to proceed is defined in LSA-C.Cr.P. art. 641 as:

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”

The issue of present insanity or mental incapacity to proceed may be raised at any stage of the proceeding, even after conviction. State v. Henson, 351 So.2d 1169 (La.1977); LSA-C.Cr.P. art. 642. When the issue is raised, the trial court is required to order a mental examination of the defendant when it has reasonable grounds to doubt the defendant’s mental capacity to proceed. State v. Henson, supra; State v. Wright, 446 So.2d 479 (La.App. 4th Cir.1984). Because of the presumption of sanity in our law, the accused bears the burden of establishing by a preponderance of the evidence reasonable grounds for the trial judge to believe that he is mentally defective, that he lacks the capacity to understand the proceeding against him or to assist in his defense. State v. Rogers, 419 So.2d 840 (La.1982); State v. Wilkerson, 403 So.2d 652 (La.1981).

The appointment of a sanity commission is addressed to the sound discretion of the trial judge and, absent an abuse of discretion, his ruling will not be overturned on appeal. State v. Wright, supra; State v. Brogdon, 426 So.2d 158 (La.1983).

In his application for the appointment of a sanity commission, the defendant alleged mental incapacity on the basis of having been placed several times, as a juvenile, in the L.T.I. Division for individuals suffering from mental disorders and his two voluntary hospitalizations in Central Louisiana State Hospital for alcohol and substance abuse. However, a psychiatrist who had treated defendant at Central testified that, although defendant suffered from a personality disorder, this was not a mental disease or defect.

A review of the trial transcript indicates that defendant was capable of testifying without any problem and that he appeared to fully understand his rights and the nature of the proceedings. It would appear that the defense failed to introduce any evidence or to allege any facts which suggest that the accused was unable to understand the nature of the proceedings against him. Therefore, the presumption of sanity was unrebutted and there was no reasonable ground for the trial court to question defendant’s capacity to stand trial. State v. Bickham, 404 So.2d 929 (La.1981). This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred by failing to grant a new trial when the assistant district attorney, in closing argument, said, “You’ve heard the evidence. You’ve seen the defendant testify. He’s guilty.” Defendant urges that this remark was so prejudicial to defendant that the conviction should be reversed.

According to LSA-C.Cr.P. art. 774:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusion of fact that the state or defendant may draw therefrom, and to the law applicable to the case.”

It is generally error for a prosecutor to state an individual belief concerning the accused’s guilt when that remark is made in such a way that the jury might conclude that the prosecutor’s belief is based on evidence outside the record. However, the expressing of an opinion based on evidence within the record is permissible. State v. Motton, 395 So.2d 1337 (La.1981), U.S. cert. den., 454 U.S. 850, 102 S.Ct. 289, 90 L.Ed.2d 139 (1981).

In this case, the remark made by the assistant district attorney clearly refers only to the evidence in the record. “You’ve heard the evidence. You’ve seen the defendant testify. He’s guilty.” It would, therefore, seem unlikely for the jury to conclude from this statement that the prosecutor’s belief in the defendant’s guilt was based on evidence outside the record. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 3

The defendant urges that the judgment be set aside because any rational finder of fact, viewing the evidence in light most favorable to the prosecution, could not find beyond a reasonable doubt that the defendant failed to present a preponderance of proof in support of the insanity defense.

LSA-R.S. 14:14 provides:

“If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.”

There is a legal presumption that the defendant is sane and responsible for his actions. LSA-R.S. 15:432. LSA-C. Cr.P. art. 652 provides:

“The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence.”

Therefore, for purposes of the insanity defense, the burden is on the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense. He must show that he suffered from a mental disease or defect which rendered him incapable of distinguishing right from wrong with reference to the conduct in question. State v. Brog-don, supra.

On appeal, the relevant inquiry is whether any rational factfinder, viewing the evidence in the light most favorable to the prosecution, could find beyond a reasonable doubt that the defendant failed to prove his insanity by a preponderance of the evidence. State v. Noble, 425 So.2d 734 (La.1983).

Defendant alleged that he had “blacked out” during the commission of the robbery and had no memory of the actual incident. He said that he had been drinking heavily and taking Valium the night before the holdup. On the day of the holdup, defendant reported finding a pistol in a garbage can on the side of Mary’s Bar, near Bobby’s Fried Chicken. He apparently remembered walking down an alley and coming out by Bobby’s Fried Chicken. The next thing defendant claimed to remember was being inside Bobby’s, with the assistant manager giving him the money. He also remembered holding the gun at this time.

Defendant had spent several months in L.T.I. as a juvenile. He had twice voluntarily committed himself to Central Louisiana State Hospital on account of alcoholism and substance abuse. Dr. C. Charles Laurent, Jr., a psychiatrist at Central, testified that defendant had had an extremely traumatic childhood. According to Dr. Laurent, defendant had a history of blackouts. He said that it was impossible for him to say whether defendant blacked out during the robbery, not having examined him at the time, but that it was possible. The psychiatrist also stated that it was possible that, during a blackout, defendant would not know the difference between right and wrong. Dr. Laurent testified that defendant was diagnosed as having a personality disorder. According to the doctor, a personality disorder is not considered a mental disease or defect and would not, in itself, prevent a person from distinguishing right from wrong.

Viewing this evidence in the light most favorable to the prosecution, it would appear that any rational finder of fact could find beyond a reasonable doubt that the defendant failed to prove his insanity defense by a preponderance of the evidence. This assignment of error lacks merit.

For these reasons, the conviction and sentence of defendant are affirmed.

AFFIRMED.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lloyd BERTRAND, Defendant-Appellant.
    No. CR84-439.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Denied March 8, 1985.
    Patrick F. Willis, Jr., Deán, Lomenick, Seemann & Willis, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Donald J. Richard, Opelousas, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

The defendant, Lloyd Bertrand, was charged by a grand jury indictment with the crime of aggravated rape, a violation of La.R.S. 14:42. On December 12, 1983, jury selection began in connection with the defendant’s trial. On December 16, 1983, a twelve-man jury found the defendant guilty as charged. On March 9, 1984, the defendant was sentenced to serve life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals urging four (4) assignments of error.

On April 19, 1983, the mother of the victim noticed a mucous-like discharge in the victim’s panties. When the mother of the victim asked the victim if anyone had touched her, she replied that Lloyd had touched her.

The victim testified at trial that while she was attending Mary’s Playschool, the defendant took her into the bathroom and that she took her pants down. The victim further testified that the defendant touched her genitalia with his hand and his penis. After some hesitation on the part of the victim, she testified that the defendant rubbed her with his penis and that he rubbed his penis inside her. The victim testified that the defendant did not ejaculate inside of her.

The day after the incident the victim was examined by Dr. Reginald Segar, the family physician. Tests revealed that the victim had contracted neisseria gonorrhea. Tests performed on the defendant revealed that he was suffering from neisseria gonorrhea.

The defendant contends that the trial court erred in allowing the alleged victim, age four years, to testify.

La.R.S. 15:469 states:

“Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no- child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.”

In this case, the trial judge, district attorney, and defense attorney questioned the four-year old victim as to her competency outside the presence of the jury. The victim was never sworn in. However, in State v. Pace, 301 So.2d 323 (La.1974), the court held that a six-year old rape victim’s testimony was properly admitted into evidence, even though a formal oath was never administered to the witness. In this case, the trial court questioned the victim about her understanding of the importance of telling the truth, the necessity of telling the court only what she remembered, and her obligation to tell the court when she did not remember something. On the stand, the victim correctly answered questions concerning her name, age, and birthday but she did not know which town she lived in. The trial judge determined that the child was competent to testify.

The determination of the trial court as to whether or not a child has sufficient understanding to testify is entitled to great weight because the trial court has the advantage of seeing and hearing the witness. State v. Edwards, 420 So.2d 663 (La.1982); State v. Humphrey, 412 So.2d 507 (La.1982); State v. Thompson, 364 So.2d 908 (La.1978); State v. Francis, 337 So.2d 487 (La.1976); State v. Dees, 439 So.2d 614 (La.App. 1st Cir.1983).

In this case, the victim first stated, on several occasions, that she did not remember facts but, upon further questioning, she answered these questions. The court has held that a child’s sometimes hesitant or unresponsive answers do not necessarily indicate incompetency. State v. Humphrey, supra. The child did testify without hesitation that she was touched on her “butt” in “the front” and that the defendant took from his pants “the thing he uses the bathroom with”.

During cross-examination, the victim was questioned about whether or not she remembered what happened on the day of the offense and she said no. On redirect examination, the victim testified that no one told her what to say on the stand. The trial judge instructed the jury, after the victim had testified, that they were to weigh the child’s testimony “with special caution”.

The jury, as the trier of fact, determines the weight given to the testimony of any witness. State v. Wright, 410 So.2d 1092 (La.1982); State v. Stevenson, 323 So.2d 762 (La.1975); State v. Anderson, 261 La. 244, 259 So.2d 310 (La.1972), appeal dismissed, cert. denied, 409 U.S. 1030, 93 S.Ct. 533, 34 L.Ed.2d 481 (1972). The record in this case contains no manifest error by the trial court in finding the victim competent to testify. This assignment of error appears to lack merit.

The defendant contends that the trial court erred in denying the defendant’s motion for new trial; that the trial court erred in denying defendant’s motion for post verdict judgment of acquittal; and that the trial court erred in that the verdict is contrary to the law and the evidence in that the State failed to prove beyond a reasonable doubt the essential element of penetration. All these relate to sufficiency of the evidence regarding the element of penetration.

La.R.S. 14:41 states in pertinent part that:

“Emission is not necessary; and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.” (emphasis added)

In State v. Prestridge, 399 So.2d 564 (La.1981) the Louisiana Supreme Court explained that:

“Article 1, § 13 of the Louisiana Constitution of 1974 provides that an accused in a criminal prosecution must be informed of the nature and cause of the charge against him. A statute is unconstitutionally vague if men of common intelligence must guess as to its meaning. State v. Cannon, 383 So.2d 389 (La.1980). Due process requires that the language of a statute have a generally accepted meaning sufficient to give adequate warning of the conduct proscribed and provide standards to enable judges and juries to fairly administer the law. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952); State v. Cannon, supra; State v. McCoy, 395 So.2d 319 (La.1980); See also, State v. Dousay, 378 So.2d 414 (La.1979).
The terms “sexual intercourse” and “sexual penetration” are terms of common and generally accepted meaning sufficient to give adequate warning of the proscribed conduct.”

In Prestridge, supra, the Court found sufficient evidence of penetration based upon the victim’s testimony, i.e., the description of the physical contact between the defendant and herself, and stated that based on their common knowledge and understanding of the human anatomy, the jury could rationally conclude that sexual penetration, however slight, occurred. The victim in this case testified that the defendant rubbed his penis in her.

The defendant argues that the recent addition of the words “anal or vaginal” changed the concept of penetration to require proof of actual penetration of the vagina itself. Therefore the defendant contends that penetration, as required by the statute, was not proven. When this argument was urged at the hearing on the Motion for New Trial and for post-verdict judgment of acquittal, the trial judge stated his belief that the new language in the statute has not changed the concept of penetration. We agree with his interpretation. The effect of the change in language in La.R.S. 14:41 is to add anal penetration as a form of rape. The change does not change the type of penetration necessary for a rape to occur. Any penetration, however slight, of the aperture of the female genitalia, even its external features, is sufficient.

Dr. Segar, the family physician, testified that when he examined the victim after the offense, he observed the area around the vagina to be very red and inflamed and that there was a pussy, greenish-yellow discharge exuding from the vagina. Dr. Segar also testified that he did not notice any trauma as far as bruising or bleeding around the vaginal area at the time of the examination. Testimony revealed that tests performed by Dr. Segar resulted in the finding that the victim had contracted neisseria gonorrhea. Testimony at trial revealed that the defendant was suffering from neisseria gonorrhea.

The trial jury also heard testimony from medical experts explaining the methods of transmitting gonorrhea. Dr. Kemp’s testimony that gonorrhea could only be spread by direct contact with a mucousal surface was typical of other medical testimony given. Dr. Kemp testified that disease could only be transmitted by direct contact between the penis and the mucous membranes of the vagina or by ejaculate of an infected person touching the mucous membranes of the vagina or by urine of the infected person touching the mucous membranes of the vagina. At the conclusion of trial, the jury found the defendant guilty of aggravated rape.

The due process clause of the United States Constitution prohibits conviction of a crime except on proof sufficient to convince the trier of fact of the existence of every essential element of the offense beyond a reasonable doubt. Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the test is no longer whether there is some evidence of guilt. Reversal of a conviction is mandated where proof of guilt is such that no rational trier of fact could find guilt beyond a reasonable doubt. State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983).

Considering the testimony given by the victim coupled with the presence of gonorrhea in both the victim and the defendant and the testimony of the medical experts regarding the disease, a rational trier of fact could have concluded that sufficient evidence had been presented to prove the element of penetration. It is not the role of the appellate court to second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson v. Virginia standard of review. State ex rel. Graffagnino v. King; supra; State v. Knighton, 449 So.2d 1171 (La.App. 2nd Cir.1984).

Since the State satisfactorily proved beyond a reasonable doubt the element of penetration, the trial court acted correctly in denying the defendant’s motion for new trial, and for post-verdict judgment of acquittal. These assignments of error are without merit.

For the above reasons we affirm the sentence and conviction.

AFFIRMED.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Erma RING, Defendant-Appellant.
    No. CR84-468.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 17, 1985.
    Writ Denied March 22, 1985.

      Bertrand Deblanc, Sr., Linda Veazey, Abbeville, for defendant-appellant.
    Louis G. Garrot, Asst. Dist. Atty., Abbe-ville, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   LABORDE, Judge.

Defendant, Erma Ring, was indicted by a grand jury for second degree murder in violation of LSA-R.S. 14:30.1. She was tried by a twelve-member jury and found guilty. The trial judge sentenced her to life imprisonment at hard labor without benefit of parole or probation. Defendant appeals her conviction and sentence by raising five (5) assignments of error. We affirm.

FACTS

On March 28, 1982, the St. Martin Parish Sheriff’s Office removed a corpse from a body of water running underneath the interstate bridge in St. Martin Parish. At trial, counsel stipulated that the body was that of Carlon Ring. He had been shot twice, once in the thigh and once in the chest. The cause of death was the piercing of the heart by a bullet.

On March 24, 1983, the grand jury returned an indictment against Erma Ring for the second degree murder of her husband, Carlon Ring. At trial, Howard Bailey testified that in March of 1982, he and Mrs. Ring’s son, Rayford McMillan (Sonny), were living in Vermilion Parish on a sailboat owned by Carlon Ring. He further testified that on March 19, 1982, Erma Ring arrived at his residence and claimed that she had shot Carl. Bailey then stated that he and Sonny went to the Rings’ trailer and found Carl’s body in the front yard, wrapped it in a tarpaulin, and threw it over a bridge into a stream. According to Bailey, the three devised a story to explain Carl's disappearance.

Rayford McMillan (Sonny) testified that he had no knowledge of the circumstances surrounding his stepfather’s death.

Paulette Rawdon and Norman Fred, friends of the Rings, testified that on March 20 and 21 of 1982, Erma told them that Carl had left on a motorcycle with another woman. Mrs. Rawdon also stated that in February of 1983, Howard Bailey confessed to her his knowledge of the events concerning Carl’s death.

Karen and Richard LeDoux, who met Erma in October of 1982, testified that she repeatedly told them that she had killed her husband in her front yard during a barbecue in the presence of Bailey and Sonny, and that they had “dumped him in a river.” Since the LeDouxs were concerned about this story, they called Mrs. Rawdon who informed them that Carl had been missing.

Two deputies with the Vermilion Parish Sheriff’s Department stated that in March and April of 1982, they had received calls from Mrs. Ring informing them of her husband’s disappearance.

Defendant, Erma Ring, was indicted by a grand jury for second degree murder. On July 20, 1983, she pled not guilty at arraignment. She was tried before a twelve-member jury on January 24-26, 1984 and found guilty as charged. The trial judge sentenced her to life imprisonment at hard labor without benefit of probation or parole. Defendant appeals, urging five (5) assignments of error.

ASSIGNMENT # 1: SPEEDY TRIAL

Defendant contends that the trial court erred in denying the defendant’s motion to quash in violation of LSA-C.Cr.P. art. 701, and in violation of the defendant’s constitutional right to a speedy trial. LSA-C.Cr.P. art. 701 provides in pertinent part:

“D. After the filing of a motion for a speedy trial by the defendant, the time period for commencement of trial shall be as follows:
(1) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody arid within one hundred eighty days if he is not continued in custody.
(2) The trial of a defendant charged with a misdemeanor shall commence within thirty days if he is continued in custody and within sixty days if he is not continued in custody. Failure to commence trial within the time periods provided above shall result in the release of the defendant without bail or in the discharge of the bail obligation, if after contradictory hearing with the district attorney, just cause for the delay is not shown.
E. ‘Just cause’ as used in this Article shall include any grounds beyond the control of the State or the Court.”

On March 24, 1983, defendant was indicted. On July 8, 1983, defendant filed a motion for speedy trial. On July 20, 1983, defendant was formally arraigned and entered a plea of not guilty. On October 18, 1983, the state moved for a continuance on the basis of the absence of a key witness. The court granted the continuance but ruled that the trial had to be held on January 24, 1984. On January 4, 1984, the defendant filed a motion to quash which was denied. The trial was held on January 24, 1984.

In analyzing an allegation of deprivation of the right to a speedy trial, the court will consider the following factors:

1) the length of and the reason for the delay;
2) the defendant’s assertion of the right; and,
3) the prejudice which the defendant has suffered.

Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972).

In State v. Reaves, 376 So.2d 136 (La.1979), a three and one-half (3V2) month delay was found unreasonable because the state did not give reasons for the continuances. In State v. Smith, 357 So.2d 798 (La.1978), a twenty (20) month delay between arrest and indictment was considered reasonable because the state acted in good faith. In this instance, the nine (9) month delay between the indictment and trial was due to the state’s search for a key witness and was therefore reasonable. We find that the state’s delay for this purpose was for just cause in this limited instance. The defendant did assert her right. She filed a motion for speedy trial before she filed the motion to quash. However, the defendant does not appear to have suffered any prejudice. Regardless of the trial date, defendant could not have been released from custody prior to January 24, 1984 because she was being held in custody for an additional forgery charge. Although the trial did not transpire within one hundred and twenty (120) days of the filing of the motion for speedy trial pursuant to LSA-C.Cr.P. art. 701, the defendant was not denied a right to a speedy trial. The trial court did not err in denying the motion to quash. This assignment of error is without merit.

ASSIGNMENT # 2: VENUE

Defendant contends that the trial court erred in finding that the crime was committed in Vermilion Parish since the victim’s body was found in St. Martin Parish. The state relied upon one witness who testified that the victim was shot in Vermilion Parish and then transported to St. Martin Parish. However, defendant argues that there was no evidence proving the location of the actual shooting.

All trials must take place in the parish where the offense occurred. Louisiana Constitution Article I, section 16; LSA-C.Cr.P. art. 611. While the state is required to prove venue beyond a reasonable doubt at trial, LSA-C.Cr.P. art. 615, the appellate review of the factual question of venue is limited to whether the state submitted some evidence of proper venue. State v. Skipper, 387 So.2d 592 (La.1980).

Our review of the record reveals that the state submitted sufficient evidence. Howard Bailey testified that after defendant informed him of shooting her husband at their residence located in Vermilion Parish, he drove there and found Mr. Ring’s body in the front yard. Karen and Richard LeDoux testified that the defendant told them that she shot her husband in the front yard of her home in Vermilion Parish. Even construing this evidence in a light most favorable to the defendant, we find that a reasonable trier of fact could conclude beyond a reasonable doubt that the victim was shot in Vermilion Parish.

The record, therefore, shows that evidence of proper venue was submitted by the state. This assignment of error is without merit.

ASSIGNMENT # 3: SPECIFIC INTENT

Defendant claims that the trial court erred in denying a judgment of acquittal or in failing to grant a new trial because the verdict was contrary to the law and evidence in that the state did not present evidence showing a specific intent of the alleged crime of second degree murder. LSA-R.S. 14:30.1 defines second degree murder, in pertinent part, as follows:

“the killing of a human being:
(1) When the offender has a specific intent to kill or inflict great bodily harm.”

In connection with this, LSA-R.S. 14:10 defines specific intent as follows:

“(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

Specific intent, however, is a state of mind which need not be proven as a fact but which may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Holmes, 388 So.2d 722 (La.1980); State v. Williams, 383 So.2d 369 (La.1980); State v. Boyer, 406 So.2d 143 (La.1981). LSA-R.S. 15:438 provides:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

Our review of the record indicates that there was sufficient evidence presented at trial which excluded every reasonable hypothesis of innocence, and that it was sufficient to prove that Erma Ring did shoot Carlon Ring. It is strongly inferred from the circumstances and nature of the killing that the defendant intended to kill or inflict great bodily harm to the victim. The victim was shot twice, once in the chest and once in the thigh. The cause of death was the shot in the chest. Howard Bailey testified that the defendant told him she shot Carl Ring when Carl announced that he was on his way to shoot her son, Sonny. Bailey further testified that he, the defendant, and Sonny devised a plan to explain Carlon Ring’s absence.

The defendant’s son, Sonny (Ray-ford McMillan), testified that he knew nothing about his . stepfather’s death. However, the jury assigned greater credibility to Bailey’s version of the facts than to Sonny’s version. When there is conflicting testimony as to a factual matter, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. Its factual determination will not be disturbed unless clearly contrary to the evidence. State v. Klar, 400 So.2d 610 (La.1981).

After review of the evidence presented, we find a strong inference that Erma Ring had the required specific intent to commit second degree murder. This assignment is without merit.

ASSIGNMENT #4: ABANDONED ASSIGNMENTS

Although this assignment of error was filed in the trial court, it was not briefed and is therefore considered as abandoned. State v. Fruge, 438 So.2d 1337 (La.App. 3d Cir.1983); State v. Lewis, 416 So.2d 921 (La.1982). For this reason, it lacks merit on appeal.

ASSIGNMENT #5: DEFENDANT’S UNCORROBORATED CONFESSION AS A BASIS FOR CONVICTION

Defendant contends that the trial court erred in denying her motion for acquittal and in failing to grant a new trial since the conviction was based on the defendant’s ■ uncorroborated confession.

It is well-settled that an accused party cannot be legally convicted on the basis of his own uncorroborated confession without proof that a crime has been committed by someone, that is, without proof of the corpus delicti. State v. Simmons, 443 So.2d 512 (La.1983); State v. Reed, 420 So.2d 950 (La.1982); State v. Freetime, 334 So.2d 207 (La.1976). In this case, both the state and the defendant stipulated that Carlon Ring was dead and that the death was due to one of two shots by a .38 caliber weapon. Since there is no evidence of suicide, it appears that his death was caused by someone’s conduct. The corpus delicti was therefore established by evidence independent of the defendant’s confession. Accordingly, this assignment of error is without merit.

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

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Wilbert LaFLEUR, Jr., Defendant-Appellant.
    No. CR84-640.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Denied March 8, 1985.
    Frank Granger, Delphin & Granger, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   DOUCET, Judge.

Defendant, Wilbert LaFleur, Jr., appeals from a conviction and sentence for Simple Burglary and Theft.

In the early morning hours of March 9, 1983, Angela Fontenot Dempsey saw three black men rob a burned out residence at 2401 Elm Street, taking certain “box-like” items. Ms. Dempsey awakened her boyfriend who called the Calcasieu Parish Sheriffs Office. Before any deputies arrived, the three men drove away. Ms. Dempsey described the car to Calcasieu Parish Sheriffs Deputy Pelloquin. About one-half mile from the burglarized residence, an automobile fitting the description given by Ms. Dempsey was stopped by Deputy Pelloquin. The car was being driven by Kenneth Manuel. Wilbert LaFleur, Jr. and Darrel Kennerson were the only passengers. There was stereo equipment in the back seat. A search of the trunk of the vehicle, made with Kenneth Manuel’s consent, revealed more stereo equipment. A short time later, Ms. Dempsey identified the three men as the ones she had seen enter the house at 2401 Elm Street. The owner of 2401 Elm, Mr. Sherer, identified the stereo equipment as his own, by the use of serial numbers assigned to the equipment for insurance purposes.

All three men were charged with the crimes of simple burglary and felony theft. Kenneth Manuel and Darrel Kennerson pled guilty to the charges. Wilbert La-Fleur, Jr. was found guilty by a six-person jury of simple burglary and theft in the amount of $300.00. A motion for post-verdict judgment of acquittal and a motion for a new trial were heard and denied. Defendant waived legal delays and was sentenced to serve seven years on the burglary charge and two years on the theft charge, with the sentences to run concurrently. Defendant appeals from the verdict, the denial of the motion for post-verdict judgment of acquittal and the motion for new trial, as well as from the sentence imposed.

Defendant contends in his assignments of error that the verdict of the jury was contrary to the law and the evidence, and that the trial court erred in denying his motion for a new trial and for post-verdict judgment of acquittal. La.C.Cr.P. art. 851 provides with regard to motions for new trial that:

“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:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(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.”

In State v. Smith, 430 So.2d 31 (La.1983) the Supreme Court noted that:

“... the motion for acquittal is properly made only when the case is tried before a judge alone. La.C.Cr.P. art. 778; State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Middlebrook, 409 So.2d 588 (La.1982). Since the present case was tried before a jury, this court will treat the acquittal motion as one for a new trial. State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Brown, 395 So.2d 1301 (La.1981).”

As in that case, defendant’s motion for post-verdict judgment of acquittal will be treated as one for new trial.

Defendant bases all these assignments of error on the contention that insufficient evidence was presented to prove that Wilbert LaFleur, Jr. was guilty beyond a reasonable doubt.

The standard by which the sufficiency of the evidence is to be judged is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 560 (1979).

The evidence at trial was conflicting. Angela Fontenot Dempsey testified that she saw three black men rob the residence at 2401 Elm Street. Three black men, including Wilbert LaFleur, were stopped a short distance away. Their car met the description given by Angela Dempsey of the vehicle driven by the burglars. Ms. Dempsey identified the men who were stopped as those who robbed the house.

Mr. LaFleur and his two accomplices all testified that the defendant was drunk and slept through the burglary without participating.

The arresting officer, Deputy Pelloquin, testified that when he stopped the car, Mr. LaFleur did not seem drunk or sleepy.

When there is conflicting testimony as to a factual matter, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. Its factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Cobbs, 350 So.2d 168 (La.1977). The jury, as the trier of fact in this case, found the testimony of Ms. Dempsey and Deputy Pel-loquin more credible than that of the defendant and his accomplices. We find that the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact beyond a reasonable doubt that Wilbert LaFleur, Jr. did commit the crimes of simple burglary and theft in the amount of $300.00.

In consideration of this finding that sufficient evidence exists to uphold the conviction, we find that the verdict of the jury is not contrary to the law and the evidence and that the trial judge correctly denied the motion for new trial and for post-verdict judgment of acquittal.

The defendant further argues that the sentence imposed is 1) unconstitutionally excessive and 2) was imposed without sufficient consideration for the sentencing guidelines of Art. 894.1.

The crime of simple burglary is punishable by a fine of not more than $2,000, imprisonment with or without hard labor for not more than 12 years or both. La. R.S. 14:62. The crime of theft when the taking amounts to a value of $100 or more, but less than $500 is punishable by imprisonment with or without hard labor for not more than ten years, or a fine of not more than $3,000 or both. La.R.S. 14:67.

On the simple burglary conviction, defendant was sentenced to seven years. On the theft charge, a sentence of two years was imposed. The sentences are to run concurrently. Both sentences are well within the statutory limits. However, even a sentence which falls within the statutory limits may violate a defendant’s right against excessive punishment. La. Const. art. 1 § 20; State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Brown, 412 So.2d 998 (La.1982).

A sentence may be vacated as unconstitutionally excessive, and the case remanded for resentencing “when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. Otherwise, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits.” State v. Jones, 381 So.2d 416 (La.1980) (citations omitted). As was the case in State v. Jones, supra, the sentence imposed on Mr. LaFleur is not “apparently severe in relation to the offense committed.and the particular offender.” Therefore, in accord with the Supreme Court’s decision in Jones, we need go no further in reviewing the sentence imposed. We cannot find that the trial judge abused his discretion.

We affirm the conviction and sentence.

AFFIRM.


author: CULPEPPER, Judge Pro Tern.

text:
    Peggy Gruber BISHOP, Plaintiff-Appellant-Appellee, v. SHELTER INSURANCE COMPANY, et al., Defendants-Appellants-Appellees.
    No. 83-1060.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 15, 1985.
    Writ Denied March 22, 1985.

      J. Edward Knoll of Knoll, Roy & Spruill, Marksville, for plaintiff-appellee-appellant.
    Bolen & Erwin, Ltd., James A. Bolen, Jr., Alexandria, for defendant-appellant-appel-lee.
    Gold, Little, Simon, Weems & Bruser; Sam N. Poole, Jr., Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees-appellants.
    Robert E. Tillery, Baton Rouge, Ben C. Bennett, Jr., Marksville, John W. King, Baton Rouge, for defendants-appellees.
    Before FORET and CUTRER, JJ., and CULPEPPER, Judge Pro Tempore.
   CULPEPPER, Judge Pro Tern.

The plaintiff, Peggy Gruber Bishop, seeks damages for her own personal injuries and for the wrongful death of her husband, William R. Bishop, arising out of an automobile accident which occurred at about 2:15 a.m. on December 13, 1981 on U.S. Highway 71 approximately four miles south of Bunkie, Louisiana. Plaintiff and her husband were passengers on the rear seat of a Pontiac Firebird being driven by the defendant, Mrs. Ollie McGhee. The McGhee vehicle was traveling in a northerly direction on this two-lane, two-way highway and collided in the south bound lane of traffic with a Mercury automobile being driven by the defendant, Eunice Edwards. Named as defendants are: (1) Mrs. Ollie McGhee, driver of the Pontiac, and her liability insurer, State Farm Mutual Automobile Insurance Company; (2) Eunice Edwards, driver of the Mercury, and his liability insurer, Shelter Insurance Company; (3) the Louisiana Department of Transportation and Development, on the theory that a cause of the accident was a defect in the shoulder of the highway which caused Ollie McGhee to lose control and spin across the highway into the path of the Edwards vehicle.

In a bifurcated trial beginning on August 29, 1983, a jury of 12 heard the case as to the individual defendants, and the judge heard the case as against the Louisiana Department of Transportation and Development. The jury found both vehicle drivers negligent and, under our comparative negligence law, attributed 10% of the fault to Eunice Edwards and 30% to Mrs. Ollie McGhee. The award of damages by the jury totaled $477,600. Following announcement of the jury verdict, the trial judge dictated written reasons finding no negligence on the part of the Louisiana Department of Transportation and Development because the plaintiff had failed to prove by a preponderance of the evidence that there was any defect in the shoulder of the highway. All parties appealed, except the Louisiana Department of Transportation and Development.

The substantial issues are: (1) Does the provision of LSA-R.S. 13:5105 prohibiting trial by jury of a suit against the State violate the equal protection provisions of the State or Federal Constitutions? (2) What are the applicable rules of appellate review in this bifurcated trial? (3) Was the jury clearly wrong in finding Eunice Edwards at fault? (4) Was the jury clearly wrong in finding Mrs. Ollie McGhee at fault? (5) Was the trial judge clearly wrong in finding no fault on the part of the Louisiana Department of Transportation and Development? (6) Did the trial judge err in refusing to allow the defendants to cross-examine plaintiff and her witnesses as to her remarriage and her present emotional condition? (7) Did the trial judge err in refusing to permit review by the jury of the limits of coverage of the insurance policies introduced into evidence by the defendants? (8) Did the trial judge err in submitting to the jury interrogatories as to twelve separate items of damages? (9) Did the trial judge err in not submitting to the jury the issue of any fault by the Department of Transportation and Development? (10) Did the trial judge err in refusing to give certain jury instructions requested by the plaintiff? (11) Were certain items of the awards either excessive or duplicative?

CONSTITUTIONALITY OF STATUTE PROHIBITING JURY TRIAL IN SUIT AGAINST THE STATE

Plaintiff argues first that the provision of LSA-R.S. 13:5105 prohibiting jury trials in actions against the State or an agency thereof violates the equal protection provisions of the Louisiana and United States Constitutions. Plaintiff quotes at length from a dissenting opinion by Judge Redmann in Carter v. City of New Orleans, 327 So.2d 488 (La.App. 4th Cir.1976).

This constitutional issue was neither raised nor ruled upon in the trial court. Jurisprudence has established the general rule that an attack on the constitutionality of a state statute cannot be made in the appellate court where it has not been raised and adjudicated in the trial court. Ryals v. Home Insurance Company, 410 So.2d 827 (La.App. 3d Cir.1982), writs denied, 414 So.2d 375 and 376 (La.1982); Succession of Dupree v. Miller, 433 So.2d 372 (La.App. 3d Cir.1983), writ denied, 440 So.2d 732 (La.1983). We note one case, Crosby v. Crosby, 434 So.2d 162 (La.App. 5th Cir.1983) which, without discussion, held to the contrary in its original opinion, but the court granted a rehearing, after which the case was settled and dismissed as being moot, 442 So.2d 1248 (La.App. 5th 1983).

In the present case, we see no reason not to apply the general rule that attacks on the constitutionality of a state statute not urged in the trial court cannot be raised for the first time in the court of appeal. Therefore, we will not consider the constitutional issue.

RULES OF APPELLATE REVIEW IN THIS BIFURCATED TRIAL

In a bifurcated trial where the jury and the judge reach conflicting findings of fact and there is an appeal, the court of appeal should resolve these differences and render a single harmonized decision based upon the record as a whole. Moran v. Thornton, 341 So.2d 1135 (La.App. 1st Cir.1976), writ granted and case remanded to the Court of Appeal with instructions, 343 So.2d 1065 (La.1977), decision on remand, 348 So.2d 79 (La.App. 1st Cir.1977), writs refused, 350 So.2d 897, 898, 900 (La.1977); Bunkie Bank & Trust Company v. Avoyelles Parish Police Jury, 347 So.2d 1305 (La.App. 3d Cir.1977); Whittington v. Sowela Technical Institute, 438 So.2d 236 (La.App. 3d Cir.1983), writ denied, 443 So.2d 591, 592 (La.1983).

Plaintiff argues that where the jury and the judge make conflicting findings of fact in a bifurcated trial, the “manifest error rule” is inapplicable, and neither trier of fact is entitled to have greater weight accorded to its factual findings. There are court of appeal decisions applying this rule. Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223 (La.App. 4th Cir.1978), writ denied 365 So.2d 242; and Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir.1983), writ not considered, 437 So.2d 1135 (La.1983). The Third Circuit Court of Appeal has stated the rule in a somewhat different way in Deville v. Town of Bunkie, 364 So.2d 1378 (La.App. 3d Cir.1978), writ denied, 366 So.2d 564 (La.1979), where the court considered the entire record and found the factual conclusions of the trial judge “more reasonable” than those of the jury.

Plaintiff argues that in the presentíase the finding of fact by the jury that Edwards was 10% at fault and Mrs. McGhee 30% necessarily implies that the Department of Transportation was 60% at fault, which conflicts with the finding of fact by the trial judge that the Department of Transportation was not at fault. Plaintiff points out that in his charge to the jury the trial judge instructed that the percentage of fault assigned to either one of the individual defendants or both combined could be less than 100%, but that only the judge could determine whether the State was negligent and the percentage thereof. Moreover, although the record before us does not show it, the jury apparently did make a penciled notation on its verdict form that 60% of the negligence was attributable to the Department of Transportation. When the jury verdict was handed to the judge he noticed this improper penciled notation and ordered it erased. From these arguments we recognize the jury’s intention must have been to find 10% of the fault attributable to Edwards, 30% to Mrs. McGhee and 60% to the Department of Transportation.

However, regardless of the jury’s intention, it did not, as a matter of law, have the right or the duty to determine whether the Department of Transportation was at fault and, if so, the percentage thereof. LSA-R.S. 13:5105 clearly provides that, “No suit against the state or a state agency or a political subdivision shall be tried by jury.” Thus, as a matter of law, the jury verdict has no weight on the issue of the State’s fault. Under this view, there is no conflict between the finding of fact by the jury and that by the judge on the issue of the State’s fault. It follows that since there is no conflict between the triers of fact, there is no need for the Court of Appeal to harmonize in accordance with the jurisprudence discussed above. It also follows that in our appellate review of the facts found by the jury and the facts found by the trial judge the applicable rule will be the well established test of whether the trier of fact was clearly wrong.

Counsel for Eunice Edwards argues that the apparently inconsistent findings of fact with regard to the State’s fault has such an effect on the apportionment of fault among the individual defendants that the manifest error (clearly wrong) rule should be inapplicable to this appeal. This is a respectable argument, but one which we need not answer, because, for the reasons expressed hereafter, we conclude that even applying the clearly wrong rule, the evidence was insufficient to find fault on the part of Eunice Edwards. We also ultimately conclude the trial judge was not clearly wrong in finding no fault on the part of the State. Additionally, we find the jury was not clearly wrong in finding fault on the part of Ollie McGhee. This means that the accident was caused solely by the negligence of Ollie McGhee and thus no apportionment of fault is required in this case under LSA-C.C. art. 2324.

FAULT OF EUNICE EDWARDS

The next issue is whether the jury was clearly wrong in finding Eunice Edwards at fault. Edwards testified that on the night of the accident he had gone to the “Big Wheel,” a lounge in Bunkie, where he remained until about 2:00 a.m. On leaving the lounge, he drove south on Highway 71 toward his home in Lemoyen, at a speed of between 45 and 55 miles per hour. He denies being under the influence of intoxicating liquor and there is no evidence that he was. He did not remember seeing any other vehicles traveling south in front of him. It was misting rain, and the highway was wet. His first recollection of the McGhee vehicle was when he saw it skidding from the northbound lane into his path in the southbound lane. There is no question that the point of impact, as found by the investigating state troopers, was in the southbound lane approximately 6 feet west of the centerline of the highway. Edwards denied that his vehicle ever went into the northbound lane.

The evidence shows that William Bishop, the decedent, and Louis McGhee were both football coaches at Alexandria Senior High School. They and their respective wives had gone from Alexandria to New Orleans to attend the State High School Football Play-offs at the Super Dome. After the last game, they left New Orleans at about 10:30 or 11:00 p.m. with Louis McGhee driving and his wife, Ollie, on the front seat. Mr. and Mrs. Bishop were on the back seat. At some point after they passed through Baton Rouge, Ollie McGhee started driving, and Louis McGhee took her place on the front seat. Ollie McGhee testified that as they approached Bunkie she was meeting some cars and the first car was coming over in her lane, so she swerved to miss the car and drove into some gravel and the car started spinning. She said she could feel her car go onto the shoulder and that she tried to steer back onto the highway, but her vehicle started spinning and she lost control and skidded into the southbound lane, where, of course, the evidence shows she struck the oncoming Edwards vehicle. At no point in her testimony does she say it was the Edwards vehicle which was the lead vehicle that crossed into her lane of travel. At the trial, she testified under cross-examination as follows:

“BY MR. POOLE:
Mrs. McGee, do you have any idea as to the description of the vehicle that crossed the centerline of the highway before you went onto the shoulder?
A. No, I don’t.
Q. Do you have any idea as to how close the vehicle that crossed the center line was to your car, when it actually did cross the centerline?
A. No, in actual distance, I don’t; I just know it was close enough that I felt I had to do something to avoid being hit.
Q. Did you feel that that car would have collided with your vehicle had you not swerved?
A. Yes.
Q. Based upon your answer to that question, isn’t it true that the car that actually came across the centerline went on down the road?
A. Well, I don’t know that for sure.”

In her pretrial deposition, Mrs. McGhee had given a slightly different version:

“Q. Okay. When that car came across the centerline, how far were — was your vehicle away from it in car lengths or any other measurement that you can give me?
A. I really can’t say. I just — like I said before, I just knew it was — it was close enough to where if I hadn’t swerved it would have hit us.
Q. You did not hit that car. It went on down the highway?
A. Yes, I feel pretty sure it did. Yes.”

Louis McGhee testified positively that as the line of cars approached from the north, the lead vehicle crossed into the northbound lane and his wife swerved to the right and successfully avoided colliding with that vehicle but then went into the southbound lane where she struck the Edwards vehicle. Louis McGhee testified at the trial as follows:

“Q. Mr. Edwards, how — I’m sorry again. Mr. McGhee, how near or how far was the vehicle that crossed the center line when you first noticed it?
A. Well, my estimation was four or five car lengths. Now, you know, it was night time, but you know, that’s my estimation.
Q. If your wife had not taken evasive actions, would uh, would an immediate collision have occurred?
A. I think so.
Q. Mr. McGhee, the vehicle that crossed the center line, it in fact, passed your vehicle and went on down the road, didn’t it?
A. Sir, in my opinion, uh, it did.
Q. That’s based on the fact that you, when you first saw it cross the center line, the distance when you first saw it cross the center line; is that correct?
A. In my opinion, yes, sir.”

In a later part of his testimony at trial, Louis McGhee stated:

“[Tjhere was no way the car that came in our, our lane could have been the one that hit us because if it had hit us, it would have hit us from the left side. And, the car that we hit was on the right rear of our car. And, there’s, you know, there’s no way I don’t think that we could have hit that car.”

Thus, of the three eyewitnesses to the accident, not one testified that the Edwards vehicle was the one which crossed into the northbound lane causing Ollie McGhee to take evasive action. On the contrary, both Edwards and Mr. McGhee testified positively that the Edwards vehicle did not cross into the wrong lane, and Mrs. McGhee testified somewhat evasively that she was not sure. However, in analyzing Mrs. McGhee’s testimony, it is apparent she remembered the car which swerved into her lane was so close she had to swerve to the right to avoid striking it in the northbound lane, which she was successful in doing.

The two state troopers who investigated the accident found 75 feet of “scuff” marks left by the tires of the McGhee vehicle as it slid sideways from the east shoulder to the point of impact in the southbound lane. Of these 75 feet of tire marks, 12 feet were in the northbound lane and 63 feet in the southbound lane. As stated above, the troopers found the point of impact was in the southbound lane approximately 6 feet west of the center line. The troopers also found that the right front of the Edwards vehicle struck the right rear of the McGhee vehicle. These physical findings are easily reconciled to the theory that the vehicle which crossed into the northbound lane was not the Edwards vehicle but was another vehicle which was so close to Mrs. McGhee that she had to swerve onto the shoulder to avoid striking it, but then lost control and skidded sideways into the southbound lane where she struck the Edwards vehicle. As Mr. and Mrs. McGhee both testified the vehicle which crossed into their lane was very close to them at the time. The time and distance for Mrs. McGhee to swerve to the right onto the shoulder where she must have gone for a short distance and then come back onto the highway and skid sideways a distance of 75 feet to the point of impact, simply cannot be reconciled with the theory that it was the Edwards vehicle which crossed into the northbound lane.

Plaintiff introduced the testimony of Prof. Joseph Barnwell, an expert in accident reconstruction, who gave calculations as to the speeds of the vehicles, the reaction time of Mrs. McGhee and the distance which she must have traveled on the shoulder and the tire marks showing she skidded at least 75 feet on the highway. As counsel for Edwards points out in his brief, if we use Dr. Barnwell’s calculations the McGhee vehicle was 150 feet south of the point of impact 2V2 seconds before the collision. With the vehicles closing on each other at speeds of at least 45 miles per hour, it would have been impossible for the vehicles to have collided within 2lk seconds. The Edwards and McGhee vehicles would have had to have been 300 to 400 feet apart when Mrs. McGhee started her evasive action. After carefully analyzing Dr. Barn-well’s theory, we reach the conclusion that it simply is unacceptable. It is contrary to the testimony of the eyewitnesses and to the physical evidence.

The only other evidence on which plaintiff can possibly rely to support the position that it was the Edwards vehicle which came into the northbound lane, is the testimony of Edwards himself that he does not remember a vehicle proceeding in a southerly direction in front of him. We do not find this negative testimony sufficient to overcome the positive eyewitness testimony or the physical findings of the state troopers.

We conclude it was not the Edwards vehicle which crossed the centerline into the northbound lane of travel. There is no other theory on which Edwards could have been negligent. There is no evidence that he was speeding or that he was failing to keep a proper lookout. We conclude the jury was clearly wrong in finding Edwards at fault.

FAULT OF OLLIE MCGHEE

The next issue is whether the jury was clearly wrong in finding Ollie McGhee at fault. We start with the well established rule that when a collision occurs between two vehicles, one of which is in the wrong lane of travel, there is a presumption that the driver in the wrong lane is negligent, and the burden is on him to exculpate himself from any fault, however slight, contributing to the accident. Delrie v. Transport Insurance Company, 413 So.2d 356 (La.App. 3d Cir.1982). Since the collision occurred in the wrong lane of travel for Mrs. McGhee, she has the burden of exculpating herself from any fault whatever. Mrs. McGhee’s defense is based on the sudden emergency doctrine which is that one who suddenly finds himself in a position of peril, not of his own making, and without sufficient time to fully consider all of the circumstances or the best means of avoiding the danger, is not guilty of negligence if he fails to follow what subsequently may appear to have been a better method. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (La.1972).

Under this rule, counsel for Mrs. McGhee argues the evidence shows she was driving within the posted speed limit of 55 miles per hour, and was suddenly confronted with an unidentified oncoming vehicle invading her northbound lane of travel at a distance of 4 to 5 car lengths. She took evasive action by swerving onto the right shoulder which was graveled and wet, causing her to lose control and spin in a counterclockwise direction as she skidded sideways a distance of 75 feet from the east shoulder to the southbound lane of travel where the collision occurred.

On the other hand, plaintiff argues there was sufficient evidence to support a conclusion by the jury that Mrs. McGhee was at fault in failing to maintain a proper lookout and to take reasonable evasive actions sooner than she did, in failing to maintain proper control of her vehicle after she went onto the shoulder and in losing control and crossing the centerline of the highway where she struck the Edwards vehicle.

Our conclusion is there was insufficient evidence to show that Mrs. McGhee failed to maintain a proper lookout as to the vehicle which invaded her lane of travel. The only evidence on this issue is the testimony of Mrs. McGhee and her husband. She said the vehicle was very close and she had to swerve onto the shoulder to avoid striking it in her lane. Louis McGhee testified the invading vehicle was only 4 or 5 car lengths ahead when it swerved into their lane. However, under the facts as we have found them it was not this invading vehicle which Mrs. McGhee struck. It was the Edwards vehicle which was some distance behind the invading vehicle. The jury could have reasonably concluded that after she drove onto the shoulder she failed to keep a proper lookout as to the oncoming Edwards vehicle and, instead, overreacted by turning immediately back onto the highway and losing control of her vehicle, instead of continuing along the shoulder until she slowed sufficiently for safety. Although Mrs. McGhee’s sudden emergency defense presents a close factual issue, we conclude the jury was not clearly wrong in finding her negligent.

FAULT OF THE DEPARTMENT OF TRANSPORTATION

The next issue is whether the trial judge was clearly wrong in finding as a fact that there was no fault on the part of the Department of Transportation and Development. In written reasons dictated into the record after the jury verdict was read, the trial judge found that plaintiff had not proved, by a preponderance of the evidence, that a hazardous condition existed on the shoulder or on the highway itself. In particular, the trial judge stated a preponderance of the evidence showed that the travel lanes of the highway and both shoulders were in good condition and well maintained, and that there was no defect.

Plaintiff contends the trial judge was clearly wrong. She urges the evidence shows there was a “drop-off” of from 2 to 5 inches from the asphalt surface of the highway to the graveled shoulder, and that this is what caused her to lose control when she drove onto the shoulder and attempted to steer back onto the highway.

Both Mrs. and Mr. McGhee testified they “felt” their car go onto the shoulder. Neither ever saw the shoulder. Plaintiffs expert witness, Prof. Joseph Barnwell, testified he visited the scene about 5 weeks after the accident and that he saw in various places drop-offs of 2 to 3 inches from the blacktopped surface to the graveled shoulder. Barnwell expressed the opinion that in wet weather such a condition was hazardous and could have caused Mrs. McGhee to lose control. Plaintiff also introduced the testimony of Kenneth Hazel-ton, a truck driver, who often drove along this highway, and who also, incidentally, was an auxiliary member of the police department of the City of Bunkie and was called to the scene on the night of this accident. He stated that he had often hauled soybeans along this highway and had noticed the low shoulders with “step-offs” of 2 to 5 inches. Mr. Hazelton’s wife, Delores Hazelton, also testified that she lives in Bunkie and that her parents live on Highway 71 where she was raised, and that she had noticed the “step-offs” on the shoulder in that area. Neither Mr. nor Mrs. Hazelton knew the exact location where Mrs. McGhee went off onto the shoulder. Their testimony was general. Both Mr. and Mrs. Hazelton testified over objections by the State that these were surprise witnesses whose names were not listed in advance of trial, and whom the State had not had an opportunity to depose. Counsel for plaintiff explained that he had not discovered these witnesses until a day or two before trial, so the court permitted them to testify.

One of plaintiffs own witnesses was State Trooper Jeffery Bordelon, who arrived at the scene about one-half hour after the accident and was in charge of the investigation. His testimony shows he and Trooper Manuel made a detailed examination of the scene. They found the 75 feet of “scuff marks,” which Bordelon said were actually tire marks, left by the McGhee vehicle as it slid sideways from the northbound to the southbound lane of travel. Bordelon testified that using the headlights of the patrol car, driven by Manuel, and a flashlight carried by Bordelon, he walked along and closely examined the east shoulder of the highway for a distance of at least 300 feet south of the scuff marks, and that he found no defects and no difference in elevation. Trooper Bordelon took pictures which he says showed no defect or elevation difference between the shoulder and the highway.

Thus, plaintiff relies on the testimony of Mrs. and Mr. McGhee who “felt” their car go onto the shoulder, of Dr. Barn-well, who visited the scene 5 weeks after the accident, and that of Mr. and Mrs. Hazelton whose testimony was very general. The State relies on the testimony of Trooper Bordelon who was on the scene the night of the accident and examined the shoulder specifically for defects and found none. We cannot hold the trial judge was clearly wrong in giving greater weight to the testimony of Trooper Bordelon than to that given by plaintiffs other witnesses.

EVIDENCE OF PLAINTIFF’S REMARRIAGE

The next issue is whether the trial judge erred in refusing to allow the defendants to cross-examine Mrs. Bishop and her witnesses as to her remarriage and her emotional condition following the death of her husband. Defendants concede the general rule is that evidence of remarriage of a widow is inadmissible for the purpose of mitigating damage in an action for wrongful death of her husband. McFarland v. Illinois Central R.R. Company, 241 La. 15, 127 So.2d 183 (La.1961); Whittington v. Sowela Technical Institute, 438 So.2d 236 (La.App. 3d Cir.1983), writs denied, 443 So.2d 591, 592 (La.1983). However, defendants argue this general rule does not apply where a widow seeks at the trial to introduce evidence of her continuing emotional problems as an element of her general damage award. Defendants cite a Federal Court of Appeal case, Caldarera v. Eastern Airlines, Inc., 705 F.2d 778 (5th Cir.1983) for its holding that once the widow opens the door to evidence of her emotional state at the time of trial, the defense should be permitted to introduce in rebuttal evidence of her remarriage and improved emotional condition. Defendants in the present case argue that the exclusion of the evidence was erroneous and the case should be remanded for another trial.

We notice that the jury awarded $12,500 for loss of love, companionship and society of plaintiffs deceased husband and in addition awarded $12,500 for “grief, mental anguish and suffering,” a total of $25,000 for these two items of damages which are actually very similar. Even if the evidence as to remarriage was improperly excluded by the trial judge, we deem it appropriate in the present case to exercise our discretion to evaluate all of the evidence in the case and determine whether this portion of the jury verdict was such that the case should be remanded. It is our view that the award was certainly not excessive even if the evidence of the remarriage had been admitted. Therefore, in the interest of judicial economy we deny the request for a remand and affirm this portion of the jury award. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975); Starks v. Kelley, 435 So.2d 552 (La.App. 1st Cir.1983).

JURY REVIEW OF INSURANCE POLICIES

The next issue urged by the defense is that the trial court erred in refusing to allow review by the jury of the limits of coverage in the insurance policies introduced into evidence by defendants. At the trial, defendants introduced into evidence a certified copy of the State Farm Mutual Automobile Insurance Company policy providing automobile liability on the McGhee vehicle with applicable limits of $20,000 and a copy of the Shelter Insurance Company policy covering the liability of Eunice Edwards with applicable limits of $19,000. Defendants requested the jury be allowed to examine these policies, including the limits of coverage. The trial judge refused to allow the jury to see the policies. On appeal, counsel for Eunice Edwards and Shelter Insurance Company complain this was error.

Counsel for Shelter points out that confusion in our jurisprudence apparently started with Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1st Cir.1975), writ denied, 323 So.2d 478 (La.1975) where a majority of the 3-judge panel of the Court of Appeal affirmed the trial court ruling which refused to allow the jury to see the policy limits. The rationale of the majority was that large policy limits would violate the rule against showing defendant's wealth or ability to pay a large judgment and although evidence is permitted to show defendant’s inability to pay, there is no logical reason to reveal to the jury large policy limits and withhold small ones. Judge Yelverton dissented, being of the opinion that where insurance policies are introduced into evidence the jury should be allowed to examine them and to see the policy limits. The Supreme Court denied writs, 323 So.2d 478, stating:

“Although we do not approve that portion of the opinion which permitted the policy limits to be withheld from the trial jury, we cannot say that under the facts the result is incorrect.”

In Courville v. State Farm Mutual Automobile Insurance Company, 386 So.2d 176 (La.App. 3d Cir.1980), reversed in part, 393 So.2d 703 (La.1981), the opinion states if insurance policies are introduced as evidence they may be exhibited to the jury. The Fourth Circuit Court of Appeal apparently takes a contrary view in Briscoe v. Stewart, 423 So.2d 1198 (La.App. 4th Cir.1982), writ denied, 432 So.2d 266 (La.1983), where the court holds it is error to inform the jury of insurance limits, not only because it is irrelevant but also because it could be prejudicial to the jury’s impartial determination of the amount of damages.

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), counsel for plaintiff and for defendant had stipulated the insurance coverage and its limits. The trial court refused to inform the jury about the contents of this stipulation. The Supreme Court held this was error, stating: “In a jury trial, the jury is entitled to know all the evidence. We know of no statute or jurisprudence which, in the absence of agreement of the litigants, would permit admissible evidence to be withheld from the jury.”

In Domingue v. Continental Insurance Company, 348 So.2d 209 (La.App. 3d Cir.1977), the issue was fully discussed and a majority of the panel held, with the author of the present opinion dissenting, that policy limits may go to the jury.

From the above brief discussion of the jurisprudence, it would appear that our Supreme Court has indicated in both Arcen-eaux and in the writ denial in Ashley that the jury may be informed of insurance policy limits. The Third Circuit has also held to this effect. In the absence of an opinion with a full discussion of the issue by our Supreme Court, there is certainly room for argument on both sides. However, what we do have from the Supreme Court indicates it prefers to let the jury see the policy limits, and the Third Circuit has so held. Therefore, we find it was error for the trial judge to refuse to allow the jury to see the policy limits.

Although we conclude the trial judge erred in failing to allow the jury to see the policy limits, the error was not prejudicial in the present case. The apparent purpose of the request of counsel for Eunice Edwards and Ollie McGhee that the jury see the policy limits was to inform the jury that these two individual defendants had relatively small liability insurance coverage in comparison with the award which the jury was likely to make. Our discussion hereinafter of the items of the award shows the awards were very reasonable and, if anything, were low. This error by the trial judge is not sufficient to warrant reversal or a remand for a new trial.

JURY INTERROGATORIES ITEMIZING DAMAGES

Counsel for Ollie McGhee and State Farm argues it was “grossly prejudicial” for the trial judge to submit to the jury interrogatories on 12 separate items of damages. These interrogatories and the amounts awarded by the jury are as follows:

“a) Pain and suffering of her deceased husband prior to his death. $20,000.00
b)Loss of past support of her deceased husband ... 29,000.00
c) Loss of future support of her deceased husband ... 350,000.00
d)Loss of love, companionship and society of her deceased husband. 12,500.00
e) Grief, mental anguish and suffering. 12,500.00
f) Funeral bill. 4,000.00
g)Past pain and suffering of Peggy Gruber Bishop_ 22,000.00
h) Future pain and suffering of Peggy Gruber Bishop . 7,500.00
i) Physical disability and/or impairment of Peggy Gru-ber Bishop. 16,000.00
j) Past medical expenses ... 1,100.00
k) Future medical expenses. 600.00
l) Impairment of earning capacity . 2,400.00
TOTAL. $477,600.00

Defendant argues as to Item (a) that there is no evidence plaintiffs husband suffered any pain between the time of the accident and his death. There is a factual dispute in this regard, so it was certainly appropriate for the trial judge to include this interrogatory. As to Items (d) and (e), defendant argues these are duplica-tive in that they are both for damages for loss of love, companionship and mental anguish due to her husband’s death. As stated above, the jury awarded only $12,500 for each of these items, a total of $25,000, which is not excessive even if they are duplicative. We find no prejudice in this regard. Finally, defendant argues that over-all, the listing of 12 separate items of damages was prejudicial. LSA-C.C.P. arts. 1812 and 1813 expressly provide in essence that the court may submit to the jury, together with appropriate forms, written interrogatories on any of the factual issues in the case. Much discretion is allowed the trial judge in this regard. Scheer v. Pat O’Briens’s Bar, Inc., 404 So.2d 292 (La.App. 4th Cir.1981). There was certainly no abuse of the trial court’s discretion in this case. The interrogatories as to the items of damages appear to be reasonably required for the jury to decide the awards.

COURT’S FAILURE TO SUBMIT TO THE JURY INTERROGATORY AS TO ANY FAULT OF THE DEPARTMENT OF TRANSPORTATION

Counsel for Mrs. McGhee and State Farm also contends they were prejudiced by the failure of the trial court to submit to the jury interrogatories regarding the degree of fault of the Department of Transportation and Development and the degree of fault of the unidentified motorist who invaded Mrs. McGhee’s lane of travel. We find in the record (Tr. pgs. 706-707) that counsel for the plaintiff timely objected to the lack of a jury interrogatory as to the State’s negligence and the percentage thereof, but we find no objection by counsel for the defendants in this regard. Moreover, we find no objection in the record by any counsel as to the lack of a jury interrogatory directed at the negligence of the unidentified motorist who invaded Mrs. McGhee’s lane of travel. Of course, it is well established that failure to timely object to jury instructions before the case goes to the jury for decision constitutes a waiver of any objections to the charges or the interrogatories. Ryals v. Home Insurance Company, 410 So.2d 827 (La.App. 3d Cir.1982), writ denied, 414 So.2d 375, 376 (La.1982). Thus, by their failure to timely object, counsel for defendants have waived their right to raise this issue on appeal. Counsel for the plaintiff did object timely and can raise the issue.

From his argument made at the time of his objection during the trial, it is apparent counsel for the plaintiff understood the serious problems presented in this bifurcated trial where comparative negligence was also at issue. The problem has probably been answered by Act No. 534 of 1983 amending LSA-C.C.P. art. 1812 so as to permit the court to require special verdicts in the following situation:

“(2) If appropriate, whether another person, whether party or not, other than the person suffering injury, death, or loss, was at fault, and, if so:
(a) Whether such fault was a legal cause of the damages, and, if so:
(b) The degree of such fault, expressed in percentage.”

By coincidence, Act No. 534 of 1983 did not become effective until August 30, 1983; which was one day after the present trial started on August 29, 1983. Under this amendment, the trial judge could have directed interrogatories to the jury as to the fault of the Department of Transportation and the degree thereof and also as to any fault of the unidentified motorist and the degree thereof.

After considering all of these factors, we conclude that in the present case there was actually no prejudice to either the plaintiffs or the defendants caused by the lack of a special jury interrogatory as to any fault on the part of the State or the unidentified motorist and the degree of such fault. The judge’s charge made it clear to the jury that they could find one or both of the individual defendants negligent and assess a percentage to one or both, so long as the percentage did not exceed 100%. The judge also explained to the jury that he would decide whether the State was negligent. What the jury actually did was to conclude that the State was guilty of fault in the degree of 60%, and that Edwards was guilty of fault in the degree of 10% and Mrs. McGhee 30%. Even if the judge had submitted to the jury special interrogatories requiring the jury to decide whether the State was negligent and the degree thereof, their decision would have been the same. Of course, as explained above, although the jury as a practical matter decided the State was guilty of fault to the degree of 60%, this finding by the jury has no legal effect because it had no right to make this decision.

Our conclusion is that even if it was error for the trial judge to fail to submit to the jury an interrogatory as to the fault of the State and the degree thereof, such error is not grounds for reversal.

FAILURE TO GIVE CERTAIN JURY INSTRUCTIONS REQUESTED BY THE PLAINTIFF

Plaintiff complains on appeal of the trial judge’s failure to give certain jury instructions regarding traffic laws, evidence of prior convictions on traffic charges, the award of damages, and awards for pain, suffering, and mental anguish, past and future. We have carefully examined all of these requested charges which were not given and find they were adequately covered by the judge’s charge as a whole.

EXCESSIVENESS OF THE AWARDS

Defendants contend certain items of the award were either excessive or dupli-cative. The itemized awards are set forth above. Defendants first argue the award of $20,000 for the pain and suffering of the decedent prior to his death is not supported by the evidence. The decedent was thrown from the Pontiac automobile and suffered a broken neck and" a basal skull fracture. Plaintiff testified her husband made “gurgling sounds,” but there is no evidence that he spoke to anyone or opened his eyes or was conscious. He was pronounced dead on arrival at the Bunkie General Hospital at 3:17 a.m., which was approximately 1 hour after the accident. We have examined the cases cited by defendants where smaller awards were given for apparently comparable pain and suffering prior to death, but we do not find the award in this case is an abuse of the much discretion of the jury as to awards of damages for personal injuries and death.

Defendants also complain of the jury’s award of $29,000 for loss of past support and $350,000 for loss of future support to plaintiff because of the death of her husband. The principal argument in this regard appears to be that plaintiff’s expert economist, Dr. Culbertson, did not take into account any deduction required for the decedent’s own personal expenses, which Dr. Culbertson admitted on cross-examination could be as much as 40% of the decedent’s income. Defendants cite Roundtree v. Technical Welding & Fabrication Company, Inc., 364 So.2d 1325 (La.App. 4th Cir.1978), writ denied, 367 So.2d 389 (La.1979), where the decedent was a welder earning $12,610 annually and the economist calculated the loss of future support of the widow at $108,830. The Court of Appeal amended the judgment so as to allow a discount of 20% for the personal living expenses of the decedent. See also Jones v. Kansas City Southern Railway Company, 143 La. 307, 78 So. 568 (La.1918); Blanchard v. Rodrigue, 340 So.2d 1001 (La.App. 1st Cir.1976), writs denied, 341 So.2d 1129, 1130 (La.1977); and Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223 (La.App. 4th Cir.1978), writ denied, 365 So.2d 242 (La.1978), where the decedent’s personal expenses were considered as a factor in determining loss of future support of the widow.

In the present case, the decedent’s earnings as a high school football coach were $17,960 in 1981 and would have been $18,-632 in 1982. Dr. Culbertson used a lifework expectancy of 30.2 years, a 6% wage increase per year and he discounted this 10V2%, arriving at a net loss of earnings of $321,367. No discount was made by Dr. Culbertson for the personal living expenses of the decedent. As shown above, the jury awarded $350,000 for loss of future support of the plaintiff.

We conclude the jury abused its much discretion in awarding $350,000 for loss of future support. This is not only more than Dr. Culbertson’s total figure of $321,367, but it obviously fails to allow any deduction whatever for the decedent’s personal expenses during his expected lifework expectancy of 30.2 years. Although Dr. Culbertson expressed the opinion the decedent’s personal expenses could amount to as much as 40% of his income, we conclude the lowest discount which the jury could have reasonably calculated is 20%. Accordingly, we will use Dr. Culbertson’s figure of $321,367 and discount that by 20%, resulting in an award of $257,094 for loss of future support.

Defendants also argue the award of $29,000 for loss of past support should likewise be discounted for the living expenses of the decedent. We agree. Accordingly, the award for loss of past support will be reduced to $23,200.

Defendants also complain of the award of $29,500 to plaintiff for her past and future pain and suffering. At the time of the accident, plaintiff was also thrown from the Pontiac. She was taken that night to the Bunkie General Hospital where she was treated for general bruises and contusions of the face, nose and right leg. The following day she was taken to Rap-ides General Hospital in Alexandria where she was diagnosed as having bruises and contusions of the face and possibly a broken nose and also a badly bruised and swollen right knee. She was discharged from Rapides General the next day with instructions to consult her personal physician. She next was seen by physicians in Little Rock, Arkansas, the home of her parents. It developed that her most serious injury was a tear of the medial meniscus of the right knee. The injury was surgically examined on January 29, 1982, but no surgical repair of the meniscus was found necessary. It healed normally and by March 16, 1982, her physician in Little Rock released her to return to work. Plaintiff testified she did return to work, but continues to have pain on occasion.

Under these facts, we find no abuse of the jury’s much discretion as to the award of $29,500 for past and future pain and suffering.

Defendants also complain of the award of $16,000 for plaintiff’s physical disability and/or impairment. Under the facts of her injury generally discussed above, we find no abuse of discretion by the jury as to this award.

Defendants also object to the award of $600 to plaintiff for future medical expenses. Under plaintiff’s testimony that she continued to have pain and some impairment of use of her knee, the jury could have reasonably concluded that some future medical expenses will be necessary. We find no abuse of discretion as to this award.

Finally, defendants complain that the award of $12,500 for loss of love, companionship and society of her deceased husband is a duplication of the award of $12,-500 for grief, mental anguish, and suffering. We have discussed these awards above and have already concluded that the total of $25,000 for these two awards is not excessive even if they are duplicative.

DECREE

For the reasons assigned, the judgment appealed is amended in the following respects:

(1) The judgment in favor of Peggy Gru-ber Bishop and against defendants, Eunice Edwards, and his insurer, Shelter Insurance Company, is reversed and set aside and plaintiff’s suit against these two defendants is dismissed with prejudice;

(2) The judgment in favor of Peggy Gru-ber Bishop and against Ollie McGhee and her insurer, State Farm Mutual Automobile Insurance Company, is reduced from the sum of $477,600 to the sum of $407,527;

(3) The assessment of 25% of the costs in the trial court against Shelter Insurance Company is reversed and set aside, and all costs in the trial court are assessed against Ollie McGhee and State Farm Mutual Automobile Insurance Company.

Otherwise than as herein amended, the judgment appealed is affirmed. All costs of this appeal are assessed against Ollie McGhee and State Farm Mutual Automobile Insurance Company.

AFFIRMED, AS AMENDED.