text:
    STATE of Louisiana, Appellee, v. John L. WILLIAMS, Sr., Appellant.
    No. 16147-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      J. Stacey Freeman, Bossier City, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Terry L.
    Lindsey, Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   HALL, Judge.

The defendant was charged by bill of information with committing negligent homicide in violation of LSA-R.S. 14:32. Upon the advice of his retained counsel the defendant pled guilty. There is no indication in the record that either the charge or the guilty plea was the result of any plea bargaining. After a sentencing hearing but without the benefit of a pre-sentence investigation report, the district court imposed a sentence of five years imprisonment at hard labor, the maximum term of imprisonment authorized by LSA-R.S. 14:32. Defense counsel moved for and was granted an appeal but failed to file any assignments of error in the district court. Because of the absence of any assignments of error this court, in a per curiam opinion, found defendant was entitled to an error patent review only and, finding no errors patent, affirmed the conviction and sentence.

The defendant, represented by different counsel, thereafter filed an application in the district court for post-conviction relief asserting that (1) he had been assured by his original retained counsel that he would not receive any jail time, and (2) he had been deprived of a review of his sentence on appeal because of the ineffectiveness of his original counsel in failing to file assignments of error in connection with his appeal. Defendant prayed that he be allowed to withdraw his guilty plea or, alternatively, that he be granted a delayed appeal. The district court found no merit to defendant’s claim concerning the assurance of no jail time because of defendant’s clear statements at the guilty plea hearing that he had been given no assurances or promises as to the length of the sentence that might be imposed. However, the district court found it patent on the face of the record that defendant was deprived of his constitutional right of appellate review of the sentence imposed because of the ineffectiveness of his counsel in failing to properly assert his complaint as to the sentence by filing an assignment of error. The district court, therefore, granted defendant an out-of-time or delayed appeal, the appropriate and correct relief under the circumstances.

In his assignments of error filed in connection with this appeal, defendant contends the trial court erred in failing to follow the sentencing guidelines provided by LSA-C.Cr.P. Art. 894.1 and in imposing an excessive sentence contrary to the provisions of the Louisiana Constitution of 1974, Art. 1, § 20.

Article 894.1 lists 3 factors justifying the imposition of a sentence of imprisonment, enumerates 11 factors to be considered by the court in its determination of suspension of sentence or probation, and requires that the court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence. The sentencing guidelines of Article 894.1 provide the criteria to be considered in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Article 894.1, the record must reflect that the judge adequately considered these guidelines in particularizing the sentence to the offense and to the offender. State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983).

The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Hammonds, supra; State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983). The sentence must be adapted to the offender as well as the offense. State v. Fields, 394 So.2d 597 (La.1981). A sentence is constitutionally excessive if it amounts to the imposition of needless suffering and if the sentence imposed tends to shock the court’s sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

Maximum sentences are appropriately imposed only in cases involving the most serious violations of the subject offense and the worst kind of offender. State v. Jones, 398 So.2d 1049 (La.1981). Maximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class. State v. Telsee, 425 So.2d 1251 (La.1983).

The statement of the facts given at the guilty plea hearing by the prosecutor which the defendant agreed is correct is as follows:

“Your Honor, on the date charged in the Bill of Information, which is December 6th, 1981, John L. Williams was arrested at his residence at 3115 Alabama Street after firing one shot from a .357 magnum, which struck Roger Smith, who also lived at that same address along with Mr. Williams. There were several individuals at the residence including a son of the defendant, John L. Williams. All individuals gave brief statements to police officers at the scene, stating that the shooting was accidental. It was apparent to the officer responding to the call that all occupants at that time had been drinking. The officers were able to determine that at some point during the drinking among these individuals an argument took place between John L. Williams and several other occupants of the residence. Mr. Williams went to a bedroom and came back with a .357 magnum revolver, pulled the hammer back and was waving the gun in the air at that time, continuing to yell. At some point the gun discharged and Roger Smith was struck. The defendant identified himself as the person firing the weapon when officers came to the scene, and was arrested at that time.”

The record indicates that the defendant who is in his early sixties owns his home in Shreveport where he has lived for many years. He was a long-time employee of the Illinois Central Railroad, now retired. The victim had lived with and been cared for by the defendant for many years. The defendant also cares for his elderly grandmother. The defendant is remorseful and apologetic about the incident, which he stated was entirely accidental.

The defendant has no prior convictions. A police record showed that he was arrested for DWI on two occasions several years prior to the shooting incident but did not show any disposition of the charges. The police record also reflected that some 24 years prior to the shooting incident the defendant was involved in another incident where a man was shot. The only information concerning the previous shooting incident was furnished by the defendant himself and his explanation left him entirely without blame or fault in that incident.

At the sentencing hearing the trial court found that the defendant would not be a proper candidate for a suspended sentence and that this type of incident could happen again. There is no factual basis in the record for the court’s finding that there is an undue risk that during the period of a suspended sentence or probation the defendant would commit another crime. The trial court noted that with the death of an individual, as we have in this case, any lesser sentence than the maximum would take away from the seriousness of the offense. Since all negligent homicide cases involve the death of a person, this reasoning would require the maximum sentence in every such case regardless of the circumstances. Unquestionably, however, the defendant’s conduct amounted to a serious violation of the charged offense. The trial court noted that there are certain mitigating factors which the court considered, but the court failed to articulate any of the mitigating circumstances or to give effect to any of those circumstances in imposing the maximum sentence. The trial court was of the opinion that the maximum penalty allowed by law is called for based upon the facts of this case and the defendant’s previous record. The court stated that the previous shooting incident “bears quite heavily on the sentence given by the court in this case.” This was an inappropriate consideration because the only information concerning the previous shooting incident which occurred 24 years earlier indicates that the defendant was not culpable in that incident.

The record does not reflect consideration by the trial court of the other factors enumerated in Article 894.1. Because of noncompliance with Article 894.1 and because the facts and circumstances of this offense and this offender as revealed by the present record do not seem to justify the maximum sentence authorized by LSA-R.S. 14:32, the sentence will be set aside and the case will be remanded for resen-tencing. A pre-sentence investigation report should be obtained and considered by the trial court.

A troublesome feature of this case is that at no point in these proceedings has the applicability of LSA-C.Cr.P. Art. 893.1 been raised; not by the state, defense counsel, or the district court. This article, as applied to this case, would mandate a sentence of five years at hard labor without benefit of suspension of sentence, probation, or parole.

During the guilty plea hearing, defendant was advised by the court that the maximum sentence which could be imposed was a $5,000 fine and five years imprisonment with or without hard labor. He was not advised of the enhanced penalty provisions of Article 893.1. Because the defendant was not given notice of the applicability of Article 893.1 and the penalty provided therein, the guilty plea was taken and the sentence was imposed under the penalty provisions of LSA-R.S. 14:32, and the state makes no assertion of the applicability of Article 893.1 or that the sentence is illegally lenient, fundamental fairness requires that the defendant’s sentence on remand be considered under the provisions of LSA-R.S. 14:32 without regard for the provisions of Article 893.1. See State v. Jackson, 452 So.2d 682 (La.1984); State v. Na- poli, 437 So.2d 868 (La.1983). See also Sentencing — Commission of Felony With a Firearm, Cheney C. Joseph, Jr., 42 La.L. Rev. 701.

For the reasons assigned, the defendant’s sentence is set aside and the case is remanded for resentencing after receipt and consideration of a pre-sentence investigation report.

Reversed and remanded for resentenc-ing.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Tommy VIZENA, Defendant-Appellant.
    No. CR83-702.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 1984.
    John Harris, Oakdale, John Demoruelle, Kinder, for defendant-appellant.
    John A. Duck, Asst. Dist. Atty., Oakdale, for plaintiff-appellee.
    Before LABORDE, YELVERTON and KNOLL, JJ.
   LABORDE, Judge.

Tommy Vizena, defendant, was charged by bill of information with simple burglary in violation of LSA-R.S. 14:62. He was convicted by a six-member jury and sentenced to serve nine (9) years at hard labor. Defendant now appeals from his conviction and sentence contending that he was unduly prejudiced during trial by being presented before the jury venire while restrained in handcuffs and that his sentence is unconstitutionally excessive. We affirm.

FACTS

On December 29, 1982, the Oaklin Springs Grocery Store, located on Highway 26 in Allen Parish, was burglarized. An investigation revealed that defendant and Randy Fruge unlawfully entered the store and took miscellaneous items which included whiskey, knives, bandanas, leather gloves and various other items. These items were seized by the police from defendant subject to a search warrant based on information related to the police by Fruge. Defendant was charged by bill of information with burglary. He entered a plea of not guilty, was tried by a six-member jury, convicted and sentenced to serve nine (9) years at hard labor. Defendant now appeals from his conviction and sentence.

ISSUES

The following issues are presented on appeal:

1) Whether the defendant was unduly prejudiced and deprived of a fair trial by having been presented before the jury venire in handcuffs and shackles prior to selection of the jury; and,
2) Whether the trial judge properly followed the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1 in imposing sentence and whether defendant’s sentence is unconstitutionally excessive.

DEFENDANT’S APPEARANCE IN HANDCUFFS: UNDUE PREJUDICE

Defendant contends that his presence before the jury venire in handcuffs prior to selection of the jury was so prejudicial as to have deprived him of a fair trial by jury.

The record indicates that the trial judge ordered the handcuffs removed immediately upon noticing them. Further, defense counsel did not move for a mistrial nor did he seek admonition to the jury.

In State v. Clark, 340 So.2d 208 (La.1976), the Supreme Court was presented with a similar issue. The court held that the defendant must clearly show that the occurrence complained of served to prejudice his rights in order for reversal. The mere fact that a defendant is restrained in shackles or handcuffs before the jury does not, in and of itself, constitute a basis for reversal of his conviction. The defendant must show, or the record must reflect, that he was prejudicially affected to the extent that reversal is warranted. State v. Rome, 432 So.2d 207 (La.1983).

In the course of reviewing the record and defendant’s brief, we do not find that defendant was unduly prejudiced in this instance. One of the prospective jurors did indicate that this factor would affect her ability to be impartial. However, of the jurors that were impaneled, there appears to be no showing or apparent evidence that they were influenced by seeing the defendant in handcuffs, nor that they could not render a fair and impartial verdict based on the evidence presented. We hold that the defendant received a fair trial although the trial court came perilously close to infringement upon his constitutional rights.

Although the trial court was in error for allowing the prospective jurors to view the defendant in handcuffs, it does not appear that the defendant has made a sufficient showing, nor does the record reflect, that he was unduly prejudiced. For this reason, reversal is unwarranted.

Accordingly, this assignment of error is without merit.

REVIEW OF SENTENCE

Defendant complains that the sentence imposed, nine (9) years at hard labor, is unconstitutionally excessive and further, that the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1 were not followed by the trial judge.

The defendant contends that the trial judge did not state for the record the consideration and factual basis for the sentence imposed. We agree. However, in State v. Cox, 369 So.2d 118 (La.1979), the Louisiana Supreme Court held that where the trial judge imposes a sentence without adequate compliance with the mandatory requirements of article 894.1, that he state the considerations and the factual basis for his sentence, the reviewing court may vacate a sentence and remand for re-sentencing when the reasons of an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record.

On a claim of excessiveness, we will first consider whether the trial court has complied with the requirements of article 894.1. If he has, we then determine the question of excessiveness on the merits. If the trial court has failed to comply with article 894.-1, as in this case, we will consider whether the defendant has shown that his sentence is an apparently severe or excessive one. If it is shown to be excessive, the court will remand for re-sentencing. If it is not, we will affirm.

In spite of the trial judge’s failure to comply with article 894.1, we find that defendant has failed to show that his sentence is excessive. Further, we do not find from our independent research that defendant’s sentence is excessive under these circumstances. State v. Frank, 310 So.2d 110 (La.1975). The crime of simple burglary carries a potential twelve (12) year sentence. The defendant is a record felony offender and it is reasonable that he be sentenced to nine (9) years for the present offense in order to avert further criminal activity by him.

In State v. Jones, 381 So.2d 416 (La.1980), the Supreme Court refused to remand a sentence despite the trial judge's inadequate compliance with article 894.1. The court held that the penalty was not an apparently severe one, even for a first offender. The same is true in the case before us.

Accordingly, we hold that defendant’s sentence must be upheld.

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

AFFIRMED.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Gary BOUDREAUX, Defendant-Appellant.
    No. CR83-928.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 1984.

      Richard T. Haik, Haik, Haik, Minvielle & Patout, New Iberia, for defendant-appellant.
    Louis G. Garrot, III, Marc Amy, Asst. Dist. Attys., New Iberia, for plaintiff-appel-lee.
    Before LABORDE, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Convicted of second degree murder, LSA-R.S. 14:30.1, Gary Boudreaux appeals arguing six assignments of error, all involving the State’s use at the trial of an inculpatory statement taped on the night of the homicide. Finding no error, we affirm the conviction.

The stabbing death of the victim, Herbert Joseph (“Black”) Broussard, occurred around 7:30 one evening in a bar in Del-cambre; about 11:30 that same evening defendant gave a statement to three law enforcement officers at the Sheriff’s office in Abbeville. The taped statement, in the form of questions and answers later transcribed, was inculpatory because Bou-dreaux, although denying that it was his knife or that a knife was in his hand when Broussard was fatally stabbed, admitted that he approached the victim at the bar, that a fight erupted between the two of them, and that the victim was cut during the fight.

Before the State began its opening statement to the jury, it gave written notice to defendant of its intent to use the recorded statement. Attached to the notice was a copy of the typewritten transcript of the tape. When the time came, on the third day of the trial, to use the taped statement, it could not then be found, and the State, by an amending notice, declared its intent to use the typewritten transcript. This was introduced into evidence, along with the waiver of rights form signed by the defendant, and the statement was read to the jury by the trial judge’s law clerk. The next day the tape itself was found. It was then put into the record but not played to the jury. These were the procedural events of the trial out of which the defendant’s objections, and the trial court’s disputed rulings, arose.

Two of defendant’s assignments of error are addressed to the notice requirement of La.C.Cr.P. art. 768. Appellant contends that the amending notice that the transcript would be used, given three days after trial began, came too late to be admissible. He relies on article 768, which reads:

“Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

We disagree with defendant’s contention that the only effective notice he received came three days after the trial began. The notice given on the first day of trial read as follows:

“The State of Louisiana intends to introduce into evidence at the trial of this case the recorded statement of the Defendant given to Detectives Lester Lu-quette, Wayne Touchet of the Vermilion Parish Sheriff’s Office and Detective Kenneth Mouton of the Louisiana State Police, said statement giyen on the 27th day of June, 1981 at the Vermilion Parish Sheriff Office, Abbeville, Louisiana. A copy of the transcript of said statement is attached hereto.”

We hold that this notice complied with the article. There is no requirement under article 768 that the State specify, in the case of a taped inculpatory statement, whether the tape itself, or only a transcript, will be introduced in evidence and presented to the jury. While the defendant is entitled to a satisfactory explanation of why the transcript and not the tape is introduced into evidence, he is not entitled to the formality of an amending notice when the circumstances, beyond the control of the State, render the substitution of a transcript necessary. For purposes of determining the sufficiency of the notice, we need to look only at the notice given before the trial began; it met the notice requirements of article 768 and therefore this argument is without merit.

The second argument concerning the timeliness of notice is that defendant was prejudiced. We disagree. The purpose of article 768 is to avoid surprise and allow adequate time in the preparation of a defense. State v. Billiot, 421 So.2d 864 (La.1982). The original notice served that purpose and therefore no prejudice has been shown.

Appellant’s third assignment of error argues that the transcript should not have been presented to the jury because it was not the best evidence of his statement. We find otherwise, and hold that the best evidence rule has not been violated on the facts of this case. As in State v. McDonald, 387 So.2d 1116 (La.1980), the necessity of introducing the transcript because the tape could not be found was satisfactorily explained. If the non-availability of a taped confession is adequately explained, secondary evidence, such as a transcript, is admissible. R.S. 15:437; State v. Abram, 353 So.2d 1019 (La.1977), cert. denied 441 U.S. 934, 99 S.Ct. 2058, 60 L.Ed.2d 663 (1979). It has been held that the introduction of both the transcript and the tape recording, for the convenience of the trier of fact, does not violate the best evidence rule. State v. Hennigan, 404 So.2d 222 (La.1981). In the instant case the tape’s absence was satisfactorily explained, and the State’s use of the admittedly accurate typewritten transcript was therefore permissible.

As an additional argument that the use of the transcript rather than the tape prejudiced him, appellant complains that the reading by the trial judge’s law clerk resulted in “vocal inflection and intonation” that could not have faithfully reproduced the original, coming as it did from the mouth of a highly educated law clerk rather than from the voice of this seventh grade educated defendant. This argument is without merit. Defendant has cited us no case, and we have found none, condemning the widespread practice in this State of permitting the reading to the jury of written confessions or inculpatory statements. Moreover, there is no indication here that the reader’s “inflection and intonation” dramatized or otherwise influenced the listener’s understanding of the transcribed statement. The reading was done under the watchful eye of the trial judge, whose explanation to the jury as to why it was being handled in that way included the observation that the law clerk was merely a verbatim reader of someone else’s words.

The missing tape was discovered the day after the transcript was read to the jury. Its introduction, the basis of defendant’s fifth assignment of error, was objected to on the ground that it was cumulative evidence, and came too late. We disagree. There was no cumulation, or repetition of damaging evidence, because the tape was not played before the jury.

Finally, defendant asserts that the statement should have been ruled inadmissible because it was not free and voluntary. This assertion is based on two arguments. First, he argues that when the statement was taped he was too intoxicated to know what he was doing. Second, he declares that when he signed the waiver of rights form and agreed to give the statement, he did so because he was induced by the promises of the three officers to “go easy” on him. Before the waiver of rights form and inculpatory statements were admitted, the trial judge conducted a hearing into whether they were free and voluntary, heard the testimony of all three officers as well as that of the defendant himself, and ruled that the waiver and the statement were admissible.

We agree with that ruling. In his trial testimony defendant said that after he had stabbed the victim—in claimed self-defense—he went to sleep in the back seat of his brother’s car, and that when the statement was given (some four hours after the killing), “I was sober. I had slept_ I bad my concentration. I was thinking of an alibi.” The officers who obtained the statement all maintained that they never promised to “go easy” on the defendant, and that he was in full control of himself, neither frightened nor intoxicated, when he signed the waiver and gave the statement. The trial judge was accordingly correct in finding that the defendant was not mentally incompetent due to the intoxication. State v. Meredith, 400 So.2d 580 (La.1981). The voluntariness of the statement and the absence of inducement were trial court conclusions based on the credibility and weight of conflicting testimony. These conclusions were supported by the evidence and we will, as we must, give them great weight. State v. Terracina, 430 So.2d 64 (La.1983).

For these reasons, the conviction is affirmed.

AFFIRMED.


author: FORET, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Appellee, v. Jerome BRYAN, Appellant.
    No. CR 83-1004.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 1984.
    Writ Denied Oct. 12, 1984.

      Max M. Morris, Lake Charles, for appellant.
    Jerry G. Jones, Dist. Atty., Cameron, for appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   FORET, Judge.

The defendant, Jerome Bryan, was convicted of second degree murder, in violation of LSA-R.S. 14:30.1. Subsequently, he was sentenced to the mandatory term of life in prison at hard labor, without benefit of parole, probation, or suspension of sentence. He now appeals, alleging two assignments of error:

“(1) The trial court erred when it failed to sustain defendant’s objection and motion for mistrial made to the method employed to purge the box of prospective jurors.
(2) The trial court erred when it failed to grant defendant’s motion for a new trial in that the evidence presented a serious question of self-defense and, at the very least, negated the elements of second degree murder and, if anything, indicated that the defendant was guilty of manslaughter.”

FACTS

In the early morning hours of February 22, 1983, the defendant, Jerome Bryan, was sitting at a table in the galley of the vessel, “Key Wester”. Along with him in the galley were Jeff Thompson and Robert Lee Ross. The defendant had been working as a crew member of the “Key Wester” for about two weeks prior to the altercation at issue. The victim, Thompson, had been working on that same vessel for about nine months. Ross was a crew member of a sister vessel, the “Key Lady”. The three had no prior history of altercations between them and all appeared to get along rather peacefully.

The three men had previously been out drinking in the Town of Cameron since the early afternoon of February 21. They continued this behavior in the galley, drinking shots of whiskey and chasing them down with beer. Suddenly, Thompson grabbed a large butcher knife and ordered the defendant and Ross into a corner. The defendant speculated that the victim’s behavior was due to a comment that he and Ross had made about a certain girl. Ross felt that the victim was only “playing around”. Nevertheless, Thompson began thrusting the knife at the men declaring that he was a “savage”. Thompson kept the men in the corner for several minutes. The defendant then attempted to take the knife away from Thompson, and when he did, the defendant was slightly cut on the right hand. Immediately thereafter, Thompson exited the galley with the butcher knife still in his hand. Ross left the galley also.

About a minute later, Thompson reentered the galley. This time, however, the defendant had armed himself with a small knife used to cut fishing nets. A fight ensued, with Thompson being cut in the neck area. He subsequently bled to death.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendant contends that the Cameron Parish jury selection process was improper. The record shows that the defendant moved for a mistrial when the jury selection began. The Louisiana Code of Civil Procedure is clear that the proper vehicle for urging this objection is the motion to quash, not the motion for mistrial. LSA-C.Cr.P. Arts. 532 and 775. When this motion to quash is not urged prior to trial, any objection to the jury venire is waived. LSA-C.Cr.P. Art. 535, Official Revision Comment, Paragraph (c)(2).

Because a hearing on a motion to quash was never held, we have nothing in the record before us which would indicate that the defendant was somehow prejudiced by the jury selection process. Therefore, since the defendant waived his right to object to the jury venire, his objection was not properly preserved at the trial level and this assignment need not be reached.

ASSIGNMENT OF ERROR NO. 2

By this assignment, the defendant initially contends that the trial court erred in denying his motion for a new trial. From the record, we find that the defendant based his motion on the grounds that (1) the verdict was contrary to the law and evidence and (2) the ends of justice would be served thereby. LSA-C.Cr.P. Art. 851(1) and (5). Although some cases have indicated otherwise (see State v. Powell, 438 So.2d 1306 (La.App. 3 Cir.1983), writ denied, 443 So.2d 585 (La.1983)), when these grounds are urged as the basis for a new trial, .nothing is presented for appellate review. LSA-C.Cr.P. Art. 858; State v. Chapman, 438 So.2d 1319 (La.App. 3 Cir.1983).

Also by this assignment, the defendant contends that the evidence was insufficient to support his conviction of second degree murder. To reverse a trial court on insufficiency of evidence, the issue is whether a rational fact finder, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In the case at bar, the defendant claims that his actions were taken in self-defense. When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Savoy, 418 So.2d 547 (La.1982). Consequently, defendant’s first argument is that the evidence was insufficient to show that he did not act in self-defense.

LSA-R.S. 14:20 provides in part:

“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, the issue is whether a rational fact finder, viewing the evidence in the light most favorable to the prosecution, could not have concluded that the state carried its burden of proving that the defendant did not reasonably believe that he was in imminent danger of losing his life or receiving great bodily harm and that his actions were not necessary to save himself from that danger.

Because there were no eyewitnesses to the second altercation between the defendant and the victim, it is difficult to determine exactly what happened when the two men met each other that second time. The evidence clearly shows, however, that the original altercation was provoked by the victim. Nevertheless, there is no evidence which tends to prove that the victim wished to continue fighting after he left the galley or that he was actually armed when he reentered the room. Even the defendant admitted on cross-examination that he was not sure if Thompson was still armed. In fact, the butcher knife used by the victim to back the defendant and Ross into a corner was never located.

In addition, the defendant received no injuries from the fight despite the fact that he was physically much smaller than the victim. Furthermore, there is some evidence which would indicate that the defendant could have left the galley after the original altercation and thus avoided any further confrontations with the victim. We conclude that a rational trier of fact could have concluded that the state carried its é burden of proving.that the defendant’s actions were not taken in self-defense.

In the alternative, defendant argues that the evidence was insufficient to support his conviction of second degree murder because of the mitigating circumstances which surrounded his actions, and that only the lesser verdict of manslaughter could have been returned by the jury. LSA-R.S. 14:31(1) provides:

“Manslaughter is:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or ...”

The existence of “sudden passion” and “heat of blood” are not elements of the offense, but rather are factors in the nature of mitigating circumstances which may reduce the grade of homicide. State v. Thompkins, 403 So.2d 644 (La.1981). Thus, our issue here is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded that these mitigating circumstances were not present when the defendant killed the victim.

As was stated before, the evidence clearly shows that this entire incident was provoked by the victim. Robert Lee Ross, the only eyewitness to the original altercation, felt that Thompson was merely “playing around” when he backed the two men into the corner with a huge butcher knife. The defendant, however, had known the victim for only two weeks and had no objective signs which would indicate to them that the victim was only acting in jest.

When a person is backed into a corner at knife point and must repeatedly avoid the thrust of a huge knife, and where there are no objective signs to indicate that the aggressor is acting in jest, we feel that the ordinary person would have cause for apprehension and would likely take reasonable steps to protect himself. Although we have already concluded that the steps taken by the defendant were not reasonable; we do find that the circumstances were such that there was a sufficient provocation to deprive an average person of his self-control and cool reflection. We find that the defendant acted in sudden passion or heat of blood in the killing of Jeff Thompson, and that no rational trier of fact could have concluded otherwise. This view is reinforced by the fact that there had been no prior history of trouble between the two men, which makes this Court hard pressed to find any motive for the killing other than a reaction to the provocation of the victim.

For the aforementioned reasons, the conviction and sentence of defendant on the charge of second degree murder is hereby reversed. This Court now renders a judgment of conviction on the lesser included responsive offense of manslaughter under LSA-C.Cr.P. Art. 821(E). This case is now remanded to the trial court for sentencing.

REVERSED, MODIFIED AND REMANDED.

DOMENGEAUX, J., dissents and assigns written reasons.

DOMENGEAUX, Judge,

dissenting.

I respectfully suggest that my esteemed colleagues of the majority have erred egregiously in two instances. Firstly, defendant’s assignment of error No. 2 was not briefed and we should not consider it. As indicated in footnote 1 of the majority opinion, our own Uniform Rules prohibit such consideration and the fiat of the Louisiana Supreme Court does likewise. I know of no exception in our procedure which allows us to disinter this dead issue. Secondly, the first error is compounded by second guessing the trial jury on purely factual matters.

This is a classic example of what happens when Jackson v. Virginia creeps over the horizon. I regret to say that I find, in some instances, our appellate courts, although in conscientious efforts to follow Jackson v. Virginia, fail to “view the evidence in the light most favorable to the prosecution.”

After applying the “favorable light” perusal to the prosecution’s evidence in this case, I find absolutely no difficulty in concluding that this conviction should be affirmed, and that we should not, under any ;pretext, attempt to second guess the trial jury.

This conviction should be affirmed.

For a further elaboration of my views on the question of review of facts in criminal matters see my concurring opinions in State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983); and State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983).

      . Assignment of error No. 2 was not briefed and would normally be considered as abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); Uniform Rules, Courts of Appeal, Rule 2-12.4. In the interest of justice, however, we feel compelled to reach this issue.

      . LSA-C.Cr.P. Art. 858 provides:
      “Art. 858. Review of ruling on motion for new trial
      Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.”

      . The record reveals the following colloquy between the defendant and his counsel on direct examination:
      “Q. Did you have any ideas ... has anyone ever said to you before that Jeff just likes to fun?
      A. No, nobody ever said nothing to me.
      Q. Do you think he was funning?
      A. No, he couldn’t have been funning, you know.
      Q. Why couldn’t he have been funning?
      A. Not with a knife, I don’t guess. A grown man playing with a knife doesn’t seem like an every day thing to me.”


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Calvin DUNN, Defendant-Appellant.
    No. CR83-1165.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 1984.
    Writ Denied Oct. 26, 1984.

      Patrick L. Durusau, Lloyd Hennigan, Jr., Peters, Hennigan & Walters, Jena, for defendant-appellant.
    J.P. Mauffray, Jr., Dist. Atty., Jena, for plaintiff-appellee.
    Before LABORDE, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Calvin Dunn, was convicted of aggravated battery, a violation of LSA-R.S. 14:34. Defendant appeals his conviction alleging three assignments of error:

(1) In denying his motion to quash and motion for a new trial premised on a plea of double jeopardy;
(2) In denying a motion for a new trial alleging that the trial court commented on evidence during defendant’s closing argument; and,
(3) In denying defendant’s motion for post-conviction acquittal because insufficient evidence was introduced to persuade a reasonable trier-of-fact of defendant’s guilt beyond a reasonable doubt.

We affirm.

FACTS

On the evening of June 4, 1983, Dunn was drinking in Dorothy Howard’s bar in Jena. Some LaSalle Parish deputies testified that Dunn told them he drew a knife from his pocket and cut Elijah Nelson, Jr., from the ear to the lower lip because Nelson cursed Dunn’s mother. When the deputies arrived, Dunn was still near the scene of the crime and, after stating that he cut Nelson, he handed the pocket knife to Deputy James Smith.

Dunn was arrested and charged with aggravated battery and carrying a concealed weapon by a convicted felon. He was first tried on the latter charge but that trial was never completed for reasons explained infra. He was tried and convicted of aggravated battery, by a six-member jury, and sentenced by the trial judge to serve seven and one-half years at hard labor.

ASSIGNMENT OF ERROR ONE

Dunn argues that his prosecution for aggravated battery is barred by double jeopardy. He was charged by two bills of information for two separate offenses arising from the incident in which he cut Nelson’s face.

Dunn was charged with carrying a concealed weapon by a convicted felon, a violation of LSA-R.S. 14:95.1. He was brought to trial on that charge on September 23, 1983; a jury was empanelled, and the taking of evidence was begun but the case was recessed to allow the State to seek writs on a critical evidentiary matter. The writs were disposed of, but the trial has not resumed.

Dunn’s prosecution on the charge of aggravated battery commenced on October 18, 1983. He argues that this prosecution is barred by double jeopardy because of the first prosecution of carrying a concealed weapon by a convicted felon. We disagree.

No person shall be twice put in jeopardy of life or liberty for the same offense. Amendment V, United States Const.; Art. I, § 15, La. Const.; LSA-C.Cr.P. Art. 591. In Louisiana, the statutory limitation on the prohibition against double jeopardy is provided in LSA-C.Cr.P. Art. 596 as follows:

“Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

The test for determining whether two offenses are distinguishable was stated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

.. where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not....”

See also, State v. Littleton, 436 So.2d 500 (La.1983); State v. Solomon, 379 So.2d 1078 (La.1980).

Battery is defined in pertinent part in LSA-R.S. 14:33 as “... the intentional use of force or violence upon the person of another; _” Aggravated battery is defined as "... a battery committed with a dangerous weapon.” The carrying of a concealed weapon by a convicted felon is provided in pertinent part in LSA-R.S. 14:95.1:

“A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burglary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon.

A conviction of an aggravated battery requires proof that (1) a battery was committed (2) upon the person of another and

(3)with a dangerous weapon. A conviction of carrying a concealed weapon by a convicted felon requires proof that (1) defendant is a felon convicted of one of the enumerated crimes in R.S. 14:95.1, and (2) defendant was carrying a concealed weapon. Each crime requires proof of additional facts which the other does not; therefore the accused may be tried and convicted on both offenses. This assignment of error is without merit.

ASSIGNMENT OF ERROR TWO

Dunn contends that the trial court improperly commented on the evidence during defendant’s closing argument. We pre-termit discussion of this issue because Dunn failed to raise a contemporaneous objection at trial and has therefore failed to preserve this issue for appellate review. LSA-C.Cr.P. Art. 841; State v. Webb, 419 So.2d 436 (La.1982).

ASSIGNMENT OF ERROR THREE

Dunn argues that there was insufficient evidence presented to persuade a reasonable trier-of-fact of his guilt beyond a reasonable doubt. We disagree.

When appellate courts review a conviction for a determination of whether sufficient evidence was presented to prove defendant’s guilt beyond a reasonable doubt, the applicable standard is articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979):

“[T]he relevant question 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.

The evidence at trial shows beyond a reasonable doubt, when viewed in a light most favorable to the prosecution, that Dunn cut Nelson’s face with a knife. Several eyewitnesses testified that Dunn cut Nelson without provocation and that Nelson only held a beer can in his hand when Dunn attacked. When the police arrived, Dunn readily admitted that he cut Nelson and surrendered the pocket knife to the investigating officers.

After - the State rested its case-in-chief, the defendant presented one witness who testified that he saw whiskey and beer bottles in the bar a few months before the offense. The defendant then rested his case. In his brief to this Court, defendant contends Nelson attacked him with a beer bottle. The defendant presented no evidence at trial of an attack by Nelson with a beer bottle. To the contrary, the eyewitnesses testified that Nelson was holding a sixteen ounce can of Miller beer and had done nothing to provoke Dunn's attack. The State clearly met its burden of proof and the jury had sufficient evidence to convict Dunn of aggravated battery. This assignment of error is without merit.

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: HAWKINS, Justice, for the Court:

text:
    Dr. J. Shelvey HOLLAND, Jr. v. Dr. Verne R. KENNEDY, Dorothy Barham, Thomas Hood, Norman H. McCrummen, III, and Belhaven College.
    No. 54340.
    Supreme Court of Mississippi.
    Aug. 22, 1984.
    Abe Rotwein, John L. Maxey, II, Cupit & Maxey, Jackson, for appellant.
    Joseph L. McCoy, McCoy, Wilkins, Nob-lin & Anderson, Thomas H. Suttle, Jr., Daniel, Coker, Horton & Bell, Jackson, for ap-pellees.
    Before BOWLING, HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice, for the Court:

Shelvey Holland, Jr., has appealed from a summary judgment against him in the Circuit Court of the First Judicial District of Hinds County, in which he had sued Belhaven College and its officers.

Because the original declaration was filed prior to January 1, 1982, we reverse.

Holland was employed by Belhaven College, and on April 1, 1981, was given written notice his services would terminate May 31, 1981.

On December 30, 1981, he filed a declaration against Belhaven and its president Verne R. Kennedy. The defendants demurred; the circuit judge sustained the demurrer by order dated March 31, 1982; and gave the plaintiff until April 19, 1982, to file an amended declaration.

An amended declaration was filed, which named Dorothy D. Barham, Thomas G. Hood and Norman H. McCrummen, III, as additional parties defendant.

The defendants made a motion for summary judgment under Rule 56(b) of our Mississippi Rules of Civil Procedure. The plaintiff made a motion to strike, and the circuit judge overruled the motion. He held that while the original declaration was filed in 1981 prior to the Rules becoming effective, the court dismissed it on demurrer, and the plaintiff had filed an amended declaration bringing in new parties, all after the effective date of the Rules. Therefore, the court held that Rule 56 was applicable to this case.

Following the filing of numerous affidavits and a hearing, the circuit judge found there was no genuine issue as to any material fact, and all defendants were entitled to a summary judgment as a matter of law. He accordingly entered a summary judgment in favor of all defendants.

While we view this case an excellent example of a proper disposition of a case under Rule 56 and would find no error in the court’s having entered summary judgment in the defendant’s favor; under Litten v. Grenada County, 437 So.2d 387 (Miss.1983), we are compelled to hold Rule 56 was not applicable to this case. The amended declaration was a continuation of the original filed prior to January 1, 1982, the effective Rules date.

We therefore reverse and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Malachi LEWIS v. STATE of Mississippi.
    No. 55011.
    Supreme Court of Mississippi.
    Aug. 22, 1984.

      George L. Dorrill, Thornton, Guyton, Dorrill & Pettit, Kosciusko, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before WALKER, P.J., and BOWLING and HAWKINS, JJ.
   WALKER, Presiding Justice, for the court:

This is an appeal from the Circuit Court of Attala County, Mississippi wherein the appellant, Malachi Lewis, was indicted, tried and convicted of murder and sentenced to serve the remainder of his natural life in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court’s holding, he has perfected an appeal to this Court.

Annie Christine Lewis and her two sons, James and Michael, resided in a home in Sallis, Mississippi with her husband, Malachi. Annie and Malachi were married in September of 1982.

On the evening of February 7, 1982 the children heard the couple argue and that night Annie slept on the sofa in the living room. Before dawn the boys were again awakened by the couple’s arguing.

On February 8, upon coming home from school, the boys found the door to their home locked. After gaining access to the home through a window, Annie was found dead in the bedroom propped against the dresser, one arm resting on the bed and blood all over her clothing. The living room was torn up, and the breakfast dishes had not been cleaned. A bloody knife was found on the stereo in the livingroom. Annie’s death was the result of six stab wounds to her chest.

After locating the appellant in Newberry County, South Carolina, the police officials on February 12 returned him to Mississippi where he was charged with the murder of Annie Lewis.

I.

THE LOWER COURT ERRED IN ADMITTING A PHOTOGRAPH OF THE DECEASED.

Objection was entered on the basis that the photograph was highly prejudicial and had no evidentiary value. The objection was overruled.

This Court has repeatedly held that in considering the competency, relevancy and materiality of photographs, it is within the sound discretion of the trial judge to determine whether or not the photographs have a legitimate evidentiary purpose. Sadler v. State, 407 So.2d 95 (Miss.1981); Voyles v. State, 362 So.2d 1236 (Miss.1978).

In Groseclose v. State, 440 So.2d 297 (Miss.1983), we upheld the admission of a single photograph which depicted the victim’s body where the photo showed the position of the body at the time it was found by the law enforcement officers and also where it was not inordinately gruesome. In the cause before us now we again do not find the admission into evidence of the single photograph of Annie Lewis to be in error as it merely showed the position of her body at the time the officers arrived at the scene and as in Groseclose was not inordinately gruesome.

II.

THE JURY ERRED IN NOT ACCEPTING HIS VERSION OF WHAT TOOK PLACE IN VIEW OF THERE BEING NO EVIDENCE OR TESTIMONY TO THE CONTRARY

In support of this contention appellant asks this Court to apply what has become known as the Weathersby rule.

The appellant was the only possible eyewitness to the crime. Testifying in his own behalf, he stated that he and the victim did argue on the morning of February 8. They argued and she reached over and hit him beside the head with a piece of firewood approximately the size of a man’s arm. He pushed her down and she fell on a chair and they began to tussle. The piece of firewood she was holding must have fallen back into the woodbox. Although he was “woozy” after being hit on the head he did recall seeing blood on her clothing as she went into the bedroom and fell. He did not have a knife and if there were one, he felt she must have had it. He did not stab her. After she fell he did not follow her or check on her condition but, out of fear that her brothers would retaliate against him, left in her automobile for South Carolina where he was picked up on February 12.

The victim who was described as sickly and had a muscle disease was found in a sitting position in the bedroom. She .suffered six stab wounds to the chest and two cuts on her left hand in between her fingers. A kitchen butcher knife streaked with blood was found on top of the stereo unit located right outside the bedroom where she was found. There was blood on the wall, a blanket and pillow on the couch and a jacket belonging to the appellant.

According to William H. Hudson, the investigating officer who spoke with the appellant on February 16 in the Attala County jail, the appellant after being advised of his rights, told the officers of the argument gnd fight. Appellant did not know who picked up the knife, either he or she did but the next thing he knew she staggered into the bedroom and fell. She was bleeding and had blood all down the front of her blouse. When asked if he stabbed her, he replied “I must have. It wasn’t anybody else there.”

The evidence in this case does not meet the requirements of the Weathersby rule. The appellant concedes he and his wife argued and admits the existence of the knife and the fact that Annie was bleeding as she staggered and fell. Furthermore, the appellant immediately left the scene without attempting to notify anyone or without aiding his wife. We have held that flight itself is evidence to be considered by the jury on the question of guilt as stated in McElwee v. State, 255 So.2d 669 (Miss.1971):

It is true that the appellant was the only eyewitness to the shooting, but his own voluntary statement to the sheriff and investigator to some extent contradicted his testimony given at the trial. These contradictions together with the fact that the appellant immediately left the scene and never reported the incident to the sheriff or anyone else, were sufficient to take the case out of the Weathersby rule.

255 So.2d 671.

Therefore, the Weathersby rule which requires that where the defendant is the only eyewitness, his version, if reasonable, must be accepted as true, unless substantially contradicted by material particulars by a credible witness or witnesses, or by physical facts or facts of common knowledge is not applicable to this case. It was for the jury, having been properly instructed, to determine from all of the evidence the guilt or innocence of the appellant.

III.

THE STATE FAILED TO PROVE THE KILLING OF THE DECEASED WAS OF MALICE AFORETHOUGHT AND NOT IN THE HEAT OF PASSION

Appellant contends there is no testimony in the record to indicate he planned to murder the deceased prior to their argument. He argues that one who kills in defense of his own physical safety and while resisting an attempt by another person to commit a felony cannot be convicted of any crime higher than manslaughter.

In Gholar v. State, 441 So.2d 113 (Miss. 1983) a similar argument was raised where this Court held:

Deciding whether the killing was justifiable or murder was an appropriate jury function, which the jurors discharged in this case and found against Gholar. The matters of flight, refusal to get medical aid, his stating Teresa was asleep, and the gun having been moved and placed in the left hand of Teresa (a right-handed person) were significant items of evidence indicating Gholar’s guilt of killing her with malice. If he had nothing to conceal about his guilt, why would he, after shooting her, have made the statement that she was in the house asleep and why would he have fled?

113 So.2d 115.

In the cause before us the appellant and Annie argued the day prior to the stabbing; Annie’s sons both testified they were awakened during the night by the couple’s argument, yet, appellant denies they argued after they had gone to bed; on.the day of the alleged stabbing the couple again argued; it was unusual for Annie to sleep in the living room as she did the evening of February 7; appellant denied having a knife or of stabbing Annie, yet he recalled seeing blood on the front of her blouse; appellant also had informed the investigating officers that he must have done it as there was no one else present; after seeing Annie’s blood-stained clothing and seeing her fall to the floor, he neither attempted to aid her nor did he attempt to advise her family that she was in need of assistance; and following the incident he left for the State of South Carolina.

This evidence was sufficient for the jury to find that appellant acted with malice.

The jury was properly instructed and obviously rejected appellant’s claim of self-defense in finding him guilty as charged.

Finding no errors in the trial below, we affirm.

AFFIRMED.

ROY NOBLE LEE, P.J., BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

      . Weathersby v. State, 165 Miss. 207, 147 So.481 (1933).


author: PRATHER, Justice, for the Court:

text:
    James L. ROBERTS, Commissioner of Public Safety of the State of Mississippi v. The MISSISSIPPI REPUBLICAN PARTY STATE EXECUTIVE COMMITTEE.
    Misc. No. 1687.
    Supreme Court of Mississippi.
    Aug. 29, 1984.
    Edwin Lloyd Pittman, Atty. Gen., Stephen J. Kirchmayr, Asst. Atty. Gen., Donald G. Barlow, John T. Kitchens, Sp. Asst. Attys. Gen., Jackson, appellant.
    Michael S. Allred, David A. Barfield, Tom Kirkland, Satterfield & Allred, Jackson, for appellee.
   ON PETITION FOR REHEARING

PRATHER, Justice, for the Court:

Upon the petition for rehearing, or in the alternative, petition for writ of supersedeas filed by the Mississippi Republican Party State Executive Committee, containing its offer and tender to post a sufficient surety bond in the premises, this Court grants the petition for rehearing upon condition of the posting and approval of a bond.

The granting of this petition for rehearing on this date vacates, the en banc per curiam order of this Court of May 16, 1984, which prior order granted a writ of super-sedeas to the Honorable James L. Roberts, the Commissioner of Public Safety of the State of Mississippi, and reinstates the order of the Chancery Court of the First Judicial District of Hinds County, Mississippi of April 3, 1984; providing, however, the Mississippi Republican Party State Executive Committee shall post a bond in the amount of $85,000.00 payable to the State of Mississippi and approved by the Clerk of the Chancery Court of the First Judicial District of Hinds County conditioned upon the performance of all orders of the lower court. However, no records shall be furnished which are classified as confidential by law under Mississippi Code Annotated section 45-1-21 (1972).

WALKER, P.J., and BOWLING, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.

ROY NOBLE LEE, P.J., and HAWKINS, J., dissent.

PATTERSON, C.J., not participating.


author: BOWLING, Justice, for the Court:

text:
    Robert McGRUDER v. STATE of Mississippi.
    No. 55008.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    , Brenda A. Freeman, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and BOWLING and HAWKINS, JJ.
   BOWLING, Justice, for the Court:

Appellant was indicted on two counts of burglary. Appellant confessed to stealing some five cases of beer from a railroad ear. In pre-trial plea negotiations, the district attorney’s office made an offer to recommend a seven year sentence in exchange for pleas of guilty to both charges; this offer was rejected by appellant. Appellant gained release from jail on a bail bond and did not appear for trial. He was later apprehended and placed in the Biloxi Jail. While awaiting trial, in November 1983, appellant was injured in the Biloxi Jail fire, which was allegedly set by another prisoner. As a result of these injuries appellant filed a civil suit for damages against the county in Federal District Court.

On three occasions during pre-trial plea negotiations, the prosecutors warned appellant that if he did not drop his federal suit pending against the county, he would be prósecuted as a recividist. Because of appellant’s prior violent convictions in Illinois, [which include burglary, larceny, escape, and three counts of armed robbery], conviction for burglary would result in a sentence of life imprisonment without parole. Appellant rejected this offer, was tried and convicted as a recidivist and sentenced to life imprisonment.

His sole assignment of error on this appeal is prosecutorial misconduct.

Appellant relies on the cases of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Black-ledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). However, these cases are readily distinguishable as they deal with enhanced charges and/or sentences in retaliation for a defendant’s appeal.

The United States Supreme Court dealt with prosecutorial vindictiveness in a pre-trial setting for the first time in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). There, the defendant refused to plead guilty to a felony indictment for forgery, punishable by a two to ten year sentence; the state carried out a threat made during plea bargaining and had the defendant re-indicted under the habitual criminal statute, subjecting him to a mandatory life sentence upon conviction. A conscious exercise of selectivity of enforcement is not in itself a federal constitutional violation, so long as the selection is not based on an unjustifiable standard, such as race, religion or other arbitrary classification.

Likewise, a case dealing with prosecuto-rial vindictiveness in a pre-trial setting is United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). There the defendant rejected various misdemean- or plea bargaining offers, requesting a jury trial. The prosecutor then sought a felony indictment for the same offense, upon which the defendant was subsequently convicted and sentenced. The Court stated that the presumption of prosecutorial vindictiveness applies only where a reasonable likelihood of such exists. This rarely occurs in a pre-trial setting, especially where the duty imposed on the prosecutor is to punish criminals.

In the case at bar, the original indictment contained all the necessary elements to convict appellant as a violent habitual offender. It lists appellant’s prior convictions, the terms he was sentenced to, and the time .he actually served. It is not disputed that he is guilty of the crime charged,, nor that he was properly charged and sentenced under our recidivist statute. While the prosecutor’s offer was heavy-handed, it should be noted that appellant rejected it. His access to the courts for his civil suit has not been denied.

It should be noted that appellant filed a civil suit for damages in federal district court against the prosecutors in this case. McGruder v. Necaise, 733 F.2d 1146 (5th Cir.1984). That Court cited Imbler v. Pachtman, 424 U.S. 409, 96. S.Ct. 984, 47 L.Ed.2d 128 (1976), which held that prosecutors enjoy absolute immunity from liability under Section 1983 for alleged civil rights violations (free and equal access to courts) committed in the course of initiating and presenting the state’s case. That court went on to say:

These defendants allegedly used their prosecutorial powers to threaten McGru-der into dismissing his damages suit. McGruder therefore argues that their activities were not those of a prosecutor seeking to punish and deter crime, but of an agent of the county seeking to intimidate a citizen in his exercise of constitutional rights. Such a motivation would be reprehensible and such threats abho-rent, but they do not lift the decision to maintain a criminal prosecution from the prosecutorial activities protected by Imbler. See Boyd v. Adams, 513 F.2d 83, (7th Cir.1975). (anticipating Imbler test; dismissal of charges in return for release was within immunity).
Our language in Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir.1979), is not to the contrary. The prosecutor in that case allegedly acted with the same motive as Necaise and Henry — to intimidate Henzel into agreeing not to sue state officials. But the Henzel prosecutor’s activities — conditioning parole on an agreement not to sue — were not those protected by Imbler. In contrast, Henry and Necaise sought to “persuade” with their prosecutorial power, and therefore remained within the field of their prose-cutorial immunity. (Emphasis added).
733 F.2d at 1154.

That Court also noted that appellant failed to establish the existence of an arbitrary class. Appellant’s rejection of the offer reflects the give and take nature of plea negotiations referred to by the Supreme Court. It should be noted that appellant received a fair trial, was convicted and properly sentenced under the recidivist statute and he was not denied access to the courts to file his civil suit. Thus reversible error was not committed and the decision below is affirmed.

WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

      . Appellant had stolen several cases of beer from a distributor’s truck within several days of the burglary of the railroad car. A separate appeal is pending in this Court for that second conviction.


author: SULLIVAN, Justice, for the Court:

text:
    Robert McGRUDER v. STATE of Mississippi.
    No. 55060.
    Supreme Court of Mississippi.
    Sept. 5, 1984.
    Brenda A. Freeman, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   SULLIVAN, Justice, for the Court:

Appellant was convicted of burglary in violation of Mississippi Code Annotated § 97-17-33 (1972), and as a violent habitual criminal under Mississippi Code Annotated § 99-19-83 (Supp.1983), by the Circuit Court of Harrison County, Mississippi, Judge J. Ruble Griffin presiding. On April 21, 1983, appellant was sentenced to life imprisonment without parole.

Appellant’s sole ground on this appeal is that the trial court erroneously refused to grant his motion for mistrial based on the prosecutor’s conduct which allegedly violated his constitutional rights.

This is a companion case to McGruder v. State, 454 So.2d 1310, and is controlled by this Court’s decision rendered in that case on this date.

Therefore, we affirm.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

PATTERSON, C.J., not participating.


text:
    Darryl John ROBERTS, v. Lark Elayne Luckette ROBERTS.
    No. 54776.
    Supreme Court of Mississippi.
    Sept. 12, 1984.
   Appeal from Chancery Court, Lafayette County; L. Glenn Fant, Jr., Chancellor.

Omar D. Craig, Dwight N. Ball, Oxford, for appellant.

Shelby D. Goza, Ethridge, Grisham & Goza, Oxford, for appellee. /'

Before WALKER, P.J., PRATHER and SULLIVAN, JJ., and SUGG, Retired Supreme Court Justice.

AFFIRMED.


text:
    Harry ALLEN v. MERCHANTS AND FARMERS BANK OF COLUMBUS, MISSISSIPPI.
    No. 55114.
    Supreme Court of Mississippi.
    Sept. 12, 1984.
    Dennis W. Voge, Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, for appellant.
    Dewitt T. Hicks, Jr., Gholson, Hicks & Nichols, Columbus, for appellee.
   Appeal from Chancery Court, Oktibbeha County; W.W. Brand, Jr., Chancellor.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.

AFFIRMED.


text:
    Nathaniel MORGAN v. STATE of Mississippi.
    No. 55086.
    Supreme Court of Mississippi.
    Sept. 12, 1984.
    Jimmy D. McGuire, Gulfport, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    Adoris TURNER v. STATE of Mississippi.
    No. 55081.
    Supreme Court of Mississippi.
    Sept. 12, 1984.
    Joe M. Buchanan, Indianola, for appellant.
    Bill Allain, Atty. Gen., by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; B.B. Wilkes, Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    Ray GLENN and Deborah P. Glenn v. David HERRING and Laurel Federal Savings and Loan Association and Kalford Ratcliff, Trustee.
    No. 54270.
    Supreme Court of Mississippi.
    Sept. 12, 1984.
    J. Ronald Parrish, Laurel, for appellant.
    Wyatt Collins, Collins & Collins, Ellis-ville, Kalford C. Ratcliff, Pack, Ratcliff & Ratcliff, Laurel, for appellee.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

Before WALKER, P.J., PRATHER and SULLIVAN, JJ.

AFFIRMED.


author: SHORES, Justice.

text:
    Charles KELLY v. Coy SMITH.
    82-1160.
    Supreme Court of Alabama.
    May 25, 1984.
    Rehearing Denied July 20, 1984.
    John T. Crowder, Jr. and Gregory B. Breedlove of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellant.
    Willis W. Holloway, Jr., Mobile, for ap-pellee.
   SHORES, Justice.

Kelly, the defendant below, appeals from a judgment against him in the amount of $30,000. We reverse.

Charles Kelly was a real estate developer. in 1973, he held an option on two pieces of real estate, both of which were abandoned subdivisions. In March of 1973, Charles Kelly, Coy Smith, and Joe Debrow formed a corporation called LanDevCo., Inc. The company was owned equally by these three men until 1976. At that time, Joe Debrow sold his one-third interest in the corporation to Charles Kelly.

LanDevCo, Inc., was formed for the purpose of exercising Kelly’s option on the land in Mobile County and developing two subdivisions, Campenella Estates and Hol-lingers Island Subdivision. During the organization of the corporation, the three shareholders agreed that each of them would be allowed to purchase from the corporation any number of lots in Campe-nella Estates for $2,000 each.

At various times prior to the filing of this lawsuit, shareholders Kelly and Smith took advantage of this agreement. Kelly and corporations he is affiliated with had purchased a total of thirty-five lots at $2,000 each, while Smith had purchased three lots at that price.

The $2,000 price was based on projections made by the three shareholders, reflecting that a substantial profit could be made for the corporation at that price, since each lot cost the corporation less than $600. At the date of this suit, all the lots in the subdivisions had been paid for, and the corporation was operating with a surplus of around $8,000 cash.

Smith brought suit against Kelly and LanDevCo, Inc., alleging that Kelly had fraudulently sold the lots in Campenella Estates to himself and to corporations which he owned or controlled at less than the market value and, in so doing, had depleted the assets of LanDevCo, Inc. In addition, Smith alleged that he had been denied the right to examine the books and records of the corporation. He sought to have the trial court order Kelly to produce the records of the corporation, to make an accounting, and to assess money damages against Kelly in the form of compensatory damages and punitive damages. Smith also requested an injunction preventing the further sale of the subdivision lots at below market value.

Following the trial, the court appointed a special master to review the records and books of the corporation. The report of that special master was submitted to the court on March 15, 1983. Thereafter, the trial court, without making any findings of fact, entered judgment against Kelly in favor of LanDevCo, Inc., in the sum of $30,000. Kelly subsequently filed a motion for a new trial, which was denied, whereupon this appeal was filed. We reverse.

On appeal, a strong presumption of correctness is afforded the trial court’s findings, made on conflicting ore tenus evidence, and these findings should not be disturbed by the reviewing tribunal unless they are unsupported by the evidence or found to be clearly erroneous and against the great weight of the evidence. Davis v. Thomaston, 420 So.2d 82 (Ala.1982); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala. 1981); Raidt v. Crane, 342 So.2d 358 (Ala.1977).

In the present case, the critical facts are not disputed. A corporation was formed for the purpose of purchasing land and developing two subdivisions. An agreement between the shareholders of that corporation was entered into during its formation, whereby each of them could purchase from the corporation as many lots of the Campenella Subdivision as he pleased for the purchase price of $2,000 each. This agreement was never amended; it was never terminated; and it was utilized by Kelly and Smith at varying times and to varying degrees. Both of them were periodically and timely informed of the financial status of the corporation and had access to the corporation’s books and records. The record shows, without dispute, that Smith’s copies of the corporation’s quarterly financial reports were mailed to his attorney, who forwarded them on to Smith.

The only disputed fact is whether the $2,000 purchase price for the lots was subject to increase as the subdivision developed. The great weight of the evidence is that the agreed-on price was not subject to change at any time. The only evidence to the contrary is the testimony of Smith, who says the price of the lots was to “go up at all times.” Smith, however, offered no evidence of how the increased price was to be determined or when the alleged price increases were to take place.

Appellant contends not only that the trial judge’s decision is against the great weight of the evidence, but that Smith’s action is time barred. We agree. The general statute of limitations for claims for fraud or deceit is one year from the date of the fraud. Ala.Code 1975, § 6-2-39. This section is subject, in appropriate instances, to the “saving clause” found in § 6-2-3. Under that section, the claim for fraud is considered as having accrued at the time of “the discovery by the aggrieved party of the fact constituting the fraud.” Following that discovery, that party has one year within which to file his action. This Court has held that fraud is “discovered” when it ought to or should have been discovered. Moulder v. Chambers, 390 So.2d 1044 (Ala.1980); Jefferson Co. Truck Growers Ass’n v. Tanner, 341 So.2d 485 (Ala.1977). Thus, the time of “discovery” is the time at which the party actually discovered the fraud, or had facts which, upon closer examination, would have led to the discovery of the fraud. Papastefan v. B & L Construction Co., Inc., of Mobile, 385 So.2d 966 (Ala.1980).

The evidence shows that Smith knew or should have known of the activities of Kelly several years before he filed this action. He was aware as late as 1976 of the continuing nature of the original agreement and stated that in 1976, he thought that Kelly was “cheating” him. Smith, through his attorney, received quarterly financial reports of the corporation, and in 1976 Smith’s attorney reviewed, at Smith’s request, the records and books of the corporation, which revealed the continual purchases by Kelly of lots in the Cam-penella Subdivision. Kelly made several purchases during the years 1975-77, at a time when Bob Moore, a close friend and associate of the appellee, was overseeing the day-to-day operations of the corporation.

We find that, at the latest, Smith had facts in 1977 which should have prompted inquiry into Kelly’s purchases. Under the applicable statutes, therefore, Smith’s action is time barred.

Due to the above findings, the judgment of the trial court must be, and it hereby is, reversed and rendered.

REVERSED AND RENDERED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.

      . LanDevCo, Inc., was later realigned as a party plaintiff.