author: NIMMONS, Judge.

text:
    Freddie Bee JAMES, Appellant, v. STATE of Florida, Appellee.
    No. AS-347.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.
    Michael Allen, Public Defender, and Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

James appeals the trial court’s order revoking his probation and the judgment and sentence imposed after revocation. We affirm the order revoking probation and the resulting adjudication of guilt of the subject felony.

The appellant complains that the sentence which was imposed after revocation did not give him credit for the ten months county jail time he had served as a condition of probation.

The State asserts that the appellant may raise the alleged sentencing error only by a Fla.R.Cr.P. 3.850 motion, not by direct appeal from the sentence. We reject this assertion. See Walker v. State, 422 So.2d 977 (Fla. 1st DCA 1983); Polk v. State, 418 So.2d 388 (Fla. 1st DCA 1982).

At the sentencing hearing, the trial judge announced that he was giving the defendant credit for the time he had already served by imposing a four year term instead of a five year term which he would have otherwise imposed. This is improper under Section 921.161(1), Florida Statutes (1981), which provides:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

The revocation order and judgment are AFFIRMED. The sentence is VACATED and this cause is REMANDED to the trial court for resentencing. Although the defendant may be sentenced up to a maximum of five years, the new sentence shall specifically credit the defendant with all time which the defendant has served in connection with the subject charge.

SMITH and WIGGINTON, JJ„ concur.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. William Jackson SIMMONS.
    No. 82-KA-0588.
    Supreme Court of Louisiana.
    April 4, 1983.
    Rehearing Denied May 13, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Nancy F. Gilliland, Bruce Whitaker, Asst. Dist. Attys., for plaintiff-appellee.
    Albert W. Block, Monroe, for defendant-appellant.
   DIXON, Chief Justice.

Defendant, William Jackson Simmons, was charged by amended bill of information filed July 29, 1981 with three counts of simple arson with damage amounting to more than $500 in violation of R.S. 14:52 and one count of aggravated arson under R.S. 14:51. On May 20, 1981 a hearing was held on defendant’s motion to suppress his confessions. The trial judge overruled the motion, finding that the confessions were freely and voluntarily given. After trial by jury on October 26 through October 29, 1981, defendant was found guilty by a unanimous verdict on both Counts 1 and 4, and by an eleven to one vote on both Counts 2 and 3 (Count 3 was the aggravated arson charge).

On November 24, 1981 defendant’s motion for a new trial was heard and denied. Defendant was sentenced on December 16, 1981 on Counts 1, 2 and 4 to ten years at hard labor with a $2000 fine (additional year on default) on each count. On Count 3, the aggravated arson charge, defendant was sentenced to fifteen years at hard labor and fined $5000 (additional year on default). The sentences were to run consecutively.

Simmons now appeals his convictions arguing seven assignments of error.

Defendant was tried for the following offenses:

Count 1: Simple arson of the Mini-Togs building on April 19, 1980.

James W. Richards, Deputy City Fire Marshal of the City of Monroe, Louisiana, testified that a fire occurred at the Mini-Togs building, an infant’s and children’s clothing factory, on April 19, 1980. The fire was primarily located in the rear of the building off of the alley. Even though he did not locate any flammable liquids, any explosives, or “any fire starters of any sort” at the scene, Richards suspected that the fire had a suspicious origin since he “didn’t find any natural causes for the fire.”

Count 2\ Simple arson of the Mini-Togs building on April 27, 1980.

Richards testified that on April 27, 1980 a major fire destroyed the front portion of the same Mini-Togs factory. Again he could not uncover any natural causes for the fire, and so classified the fire as “suspicious.” However, he did not discover any evidence that would positively indicate arson.

Hakim, the factory owner, claimed that this fire caused approximately $400,000 in damages. After this fire Hakim “found a five (5) gallon army can that appeared to have about an inch of gasoline in it” at the back door. He informed fire officials at the scene about the presence of the can. In addition the owner mentioned that the building had recently been renovated in compliance with local fire codes and “all materials that were in that building, walls and all, would not burn.”

Count 3: Aggravated arson of the Amvets Club on October 28, 1980.

Richards testified that at approximately 7:46 p.m. on October 28, 1980, a fire was reported at the Amvets Club. The fire was minor and was confined to a doorway on the north side of the building. At the time the fire occurred, the club was filled with approximately seventy-five to one hundred twenty-five persons playing bingo. However, none “of the people saw anyone or knew anything about this fire.” Again Richards did not discover any natural causes for the fire. Debris gathered from around the doorway smelled like petroleum.

Count If: Simple arson of Star Hardware on December 24, 1980.

Ronald Weaver, a Monroe police officer, testified that he observed a fire in the rear storage area of Star Hardware during the early morning hours of December 24, 1980. Star Hardware is situated next to the Mini-Togs building and the same alley runs parallel to both establishments.

Richards declared that he was unable to discover any natural causes of the fire since the fire destroyed any evidence that might have existed. He noted that he smelled no unusual odors at the scene. The fire apparently started in the back of the building where some cardboard containers were stored. He characterized the fire as suspicious since “it was so quickly involved.” Richards “saw nothing to create that fast a fire.” He found no trace of flammable liquids at the scene of the fire.

Argument No. 1 (Assignment of Error No. 1)

By this assignment defendant contends that the trial court erred in denying his motion to suppress his confessions in that they were not knowingly and voluntarily given due to his intoxication.

At the suppression hearing, Sergeant Warren Brown, an investigator with the Monroe Police Department, testified that Simmons had been arrested at 7:15 p.m. on the night of February 5, 1981. Defendant explained the circumstances of his arrest to Sergeant Brown who recalled:

“I told him, I said, ‘Now, I want to make sure that you’re not intoxicated,’ that’s before we took the statement, I said, ‘because you’ve been arrested for D and D.’ He said, T may have been intoxicated a little back,’ he said, ‘but I really wasn’t ... ’ T knew what I was doing,’ he said, ‘and it was cold ... and I didn’t have nowhere to stay, and I called the police department myself and told them that old Bill was down there on Sam’s parking lot drunk,’ and he said, ‘and just a few minutes later three or four police cars showed up and they brought me on to jail. That’s what I wanted them to do.’ ”

At approximately 7:30 p.m. Brown, the detective on duty, was informed that defendant, who was in jail, wanted to talk to him. At 9:30 p.m. defendant told Brown that “he wanted to tell [him] about some fires.” Specifically, defendant confided in Brown that he wanted to talk about the Star Hardware fire, the two fires at Mini-Togs, and the one at the Amvets Club. Brown then stopped defendant and advised him of his rights. Brown testified that defendant appeared to comprehend his rights and stated that he understood them. Defendant then executed a waiver form.

Brown interrupted their conversation and contacted the State Fire Marshal’s Office and asked to have an investigator sent over. After the arrival of Deputy State Fire Marshal Pete Medak, Brown read and explained the Miranda rights to defendant a second time. Medak added his name to the waiver as a witness.

Two recorded statements were made by defendant at 11:10 p.m. and 11:45 p.m. One statement concerned the two fires at Mini-Togs and the fire at the Amvets Club. The other statement concentrated on the Star Hardware fire. Brown affirmed that prior to making the statements, defendant “was very cooperative” and did not “appear to be under the influence of any narcotics or intoxicants of any sort.” Brown further asserted that the statements were not obtained by the use of force, promises or coercion. Deputy Medak’s testimony corroborated that of Sergeant Brown’s in its essentials.

Defendant presented the testimony of two bar owners and a drinking crony which tended to suggest that defendant drank heavily, could carry on a conversation when intoxicated, and laced his conversation with braggadocio when intoxicated.

The trial court, in denying defendant’s motion, concluded that while defendant may have been drinking, he was not intoxicated “to the extent that he didn’t know enough to understand his rights and give a free and voluntary statement.”

Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. R.S. 15:451; State v. Robinson, 384 So.2d 332 (La.1980). The state must also establish that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. State v. Kersey, 406 So.2d 555 (La.1981); State v. Robinson, supra.

Intoxication will render a confession inadmissible when the intoxication renders the defendant incapable of understanding his right to remain silent. In State v. Robinson, supra at 335, this court reiterated its standard for determining the effect of intoxication on confessions. There we noted:

“... Where the free and voluntary nature of a confession is challenged on the ground that the accused was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. State v. Rankin, 357 So.2d 803 (La.1978). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977).”

See also State v. Godeaux, 378 So.2d 941, 943 (La.1979); State v. Hammontree, 363 So.2d 1364, 1367-1368 (La.1978).

Although the evidence produced at the hearing established that defendant had consumed alcoholic beverages prior to his arrest at 7:15 p.m., the evidence also revealed that the confession, given approximately four hours later, was free and voluntary and followed a thorough explanation of the Miranda warnings.

Defense witnesses testified that the speech patterns of the defendant were “slurred” when he was intoxicated. Sam Messina, the owner of Sam’s Bar and a past employer of defendant, noted that after drinking heavily, defendant “does not have a consistent train of thought, he goes backwards and forwards and skips back and forth ...”

The testimony of the interviewing officers reveals that defendant, while perhaps intoxicated earlier in the evening, was lucid and able to understand the nature of the Miranda rights, his waiver of them, and the consequences of what he was saying. Their testimony clearly negates any claim of intoxication sufficient to vitiate the vol-untariness of the confessions. In addition, a review of the transcribed confessions discloses a coherent colloquy containing minor details of the fire, clearly not indicative of defendant’s speech patterns when intoxicated.

Accordingly, the trial court’s denial of defendant’s motion to suppress is adequately supported by evidence in the record.

This assignment lacks merit.

Argument No. 2 (Assignments of Error Nos. 2, 3 and 4)

By these assignments defendant contends that the trial court erred in denying his mistrial motion based upon allegedly prejudicial remarks made by a prospective juror in the presence of the entire jury venire; that the trial court erred in not polling the jury venire to ascertain whether the statements would prejudice the jury; and that the trial court erred in failing to admonish the jury panel to disregard the statements.

The following occurred during voir dire:

“By Ms. Gilliland:
Sft 3* # * * *
Q. Do you know the defendant, Mr. Simmons?
A. Yes, I do.
Q. Do you know him personally?
A. Well, I have been around him. My husband’s mother and his mother were close friends and both of them is dead now and I have been visiting his mother, you know, when she would come and there was several times that I visited with her and was at his mother’s home and then his brother was a personal friend of my husband and his brother has been in my home several times.
Q. Now, I don’t want to embarrass you but I need to know. Do you not feel that the fact that you know him and his family quite well would keep you from being fair and impartial?
A. I know of his background. So I don’t know whether I could be partial or fair.
Q. You don’t know whether or not you could be fair?
A. I don’t know whether I could or not.
Q. Okay. All right.
Ms. Gilliland: Without wanting to embarrass you, Judge, I would challenge Mrs. Auttonberry for cause.
By the Court
Q. Do I understand you, Mrs. Autton-berry, to say that because of facts that you know about him and his family and your relationship to him you can’t be sure you could get those out of your mind and relate solely to the evidence?
A. Well, I know what has went on in the past and for that reason I don’t know if I could be fair or not.
The Court: Okay. The Court is going to excuse you from this case. Call in tonight and find out about tomorrow, please, ma’am.
The Court: Let the record show that all prospective jurors are excluded from the Courtroom. All right, Mr. Block.
Mr. Block: Your Honor, at this time I am going to move for the entry of a mistrial as a result of the remarks made by Mrs. Auttonberry concerning her knowledge of Mr. Simmons alleged past history. I believe she used the words ‘some goings on in the past,’ Your Honor. The complete jury panel was present at the time the remarks were made. They were made in open Court. They were made audibly. I am sure everyone heard them. I would submit that there is obviously a prejudicial effect that can result from this statement and that as such, we would be entitled to a mistrial and the empaneling of a new jury.
The Court: Well, I don’t recall her having said anything that was — had reference to any particular fact other than she knows facts. Let the motion be overruled.
Mr. Block: Note our objection to the overruling of the motion.”

Defendant made no request for an admonition by the trial judge to the prospective jurors or for individual voir dire of prospective jurors.

C.Cr.P. 786 provides that the court, the state and the defendant shall have the right to examine prospective jurors and the scope of the examination shall be within the discretion of the court. We have recognized that the purpose of voir dire examination is to determine the qualifications of prospective jurors by testing their competency and their impartiality. State v. Jackson, 358 So.2d 1263 (La.1978); State v. Ford, 349 So.2d 300 (La.1977).

Defendant relies on C.Cr.P. 771 in arguing that the trial court’s failure to grant a mistrial or admonish the jury resulted in reversible error. However, the statements of the prospective juror were not of such a nature that they might prejudice the defendant. The remarks reflect a prior knowledge of defendant and his family that might have affected that particular juror’s impartiality in the case. The juror’s general comments that she knew what had gone on in the past do not necessarily infer that she had knowledge of any particular past crimes. Her statement that she didn’t know whether she could be “partial” or fair suggests that she might show a partiality to the defendant. Since the juror’s knowledge was not related to the instant case but rather to defendant’s personal history, and since the other jurors were not exposed to the factual bases for the juror’s possible partiality, it is unlikely that the jurors were prejudiced against the defendant on the basis of the remarks.

In any event the juror’s remarks do not fall within the ambit of the mandatory mistrial provisions of C.Cr.P. 770; State v. Cushenberry, 407 So.2d 700 (La.1981). Under C.Cr.P. 771 it is only when an admonition is insufficient to assure a fair trial that a mistrial should be ordered. State v. Baldwin, 388 So.2d 664 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981). The trial court did not abuse its discretion in failing to grant a mistrial.

These assignments lack merit.

Argument No. 3 (Assignment of Error No. 5)

By this assignment defendant contends that the trial court erred in admitting his confession since the state failed to prove the corpus delicti of the offenses charged.

In State v. Mullins, 353 So.2d 243, 246 (La.1977), this court stated: “It is well settled that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other words, without proof of the corpus delicti....” See also State v. Willie, 410 So.2d 1019 (La.1982); State v. Romero, 369 So.2d 1342 (La.1979); State v. Ashley, 354 So.2d 528 (La.1978).

As a general rule extrajudicial confessions, declarations and admissions by the accused are not of themselves sufficient to establish the corpus delicti, but may be considered along with other evidence in determining whether the corpus delicti has been proved beyond a reasonable doubt. As this court observed in State v. Mullins, supra at 246:

“... Although the better practice is to require the establishment of the corpus delicti before an admission or confession is admitted in evidence, the law does not require proof of the corpus delicti as a condition precedent to the introduction of evidence, such as an admission or confession, to connect the accused with the crime charged as long as proof of the corpus delicti is subsequently established during trial. State v. Odom, 247 La. 62, 169 So.2d 909 (1964); State v. Gani, 157 La. 235, 102 So. 319 (1924); State v. Hill, 135 La. 625, 65 So. 763 (1914); State v. Gebbia, 121 La. 1083, 47 So. 32 (1908)....”

Count 1 of the bill of information charged the defendant with simple arson of the Mini-Togs warehouse which occurred on April 19, 1980. Deputy City Fire Marshal James W. Richards testified that the fire occurred at the rear of the building near the alley. He noted that there were rolls of cloth and other materials right inside the door. Edward Hakim, the owner of the building, testified that the back doors were always locked and that there were windows facing the alley between the two doors. Because of the fire damage, there was no way of telling “whether the windows were broken out or not.”

Hakim testified that between $700,000 and $800,000 worth of damage was done to his business. He noted that 99% of the material stored in the warehouse was fire retardant and was to be used in the manufacture of children’s clothing. Defense counsel inquired of Hakim how this material could burn if set fire to:

“Q. Now, you said that 99 percent or virtually all of this fabric that was being stored in the warehouse was, in fact, fire retardant?
A. Right. Now, fire retardant does not mean that it will not burn. That is not what retardant means. A fire retardant material will burn. It just restricts the flame.
Q. Now, it is my understanding that fire retardant, when you remove the flame, that it will go out.
A. The polyester part will go out. The cotton part will not go out.
Q. Well, if I were to walk to your building right now and take a lighter with me in order to light the corner of one roll—
A. Okay. I can probably explain it to you a little bit better. If you took a big piece of material, you could start a fire on one end of it and it would burn the cotton portion of it across the fabric. All right. What is left behind it, the cotton part would burn. What is left behind it, would be the polyester and it will melt but the fire will continuously gó across the cotton portion of the goods because in terry, your loop is cotton and your backer, your flat part of your terry is polyester. So the nap will burn but the polyester portion will not burn. It will melt.”

This evidence was presented prior to the introduction of defendant’s confession. In his confession defendant recalled how he set fire to the building the first time:

“Q: O.K. now ... tell us how you set the fire the first time?
A. The first time ... I walked through the alley and there was a window broke out ... there was a hole in the window ... and ... and ... I didn’t break into the building ... I went ... I didn’t go in the building.
Q. You never got in the building?
A. No ... cause I didn’t have to ... cause the window was broke out and there was a board across there and I just stuck my cigarette lighter in there and set it on fire ...
Medak
Q. Was the window completely broke out or ...
A. No sir ... there was round hole ... like I ... showed you while ago ... Brown
Q. In other words you talking about ... about a 6 or 8 inch hole...?
A. Yea ... well about a 5 inch hole...
Q. But ... it was big enough for you to get your arm through...?
A. My hand through and the cigarette lighter...
Q. O.K. the material was ...
A. The material was right up against the glass and it was so easy to get to ... it ya know.
Q. O.K. and then ... in other words you ... stuck your cigarette lighter through ...
A. And there was a bolt of cloth.
Q. A bolt of ... what you call a bolt of material...
A. Material ... yes.
Q. O.K. and ah ... did you stay around...?
A. No I didn’t ... I stuck the match to it ... I mean the lighter to it and I just took my little walk ...
Q. In other words what I’m saying ... is did you make certain that it was caught before you left?
A. I seen it was caught ... when I left.
Q. It was ... burning?
A. It was burning...
Q. And you left?
A. Ileft...”

The evidence corroborates defendant’s confession sufficiently to establish the corpus delicti of simple arson.

Regarding Count 2 of the bill of information, Richards testified that he investigated another fire of suspicious origin on April 27, 1980 which destroyed the same warehouse as the previous fire. Hakim stated that this fire appeared to have originated in the same area as the first fire. After the first fire, the building no longer had doors and had very few windows left and so was easily accessible from the outside.

Defendant confessed that when he set the second fire, he simply walked into the warehouse since the windows and doors were “all knocked away.” He stuck his lighter into some old bolts of cloth and they flamed up. Defendant stated that he did not use any lighter fluid or gasoline.

As in Count 1, the evidence and the confession corroborate each other to establish the corpus delicti of simple arson.

Count 3 charged defendant with the aggravated arson of the Amvets Club which occurred on October 28, 1980. This fire was located in the doorway of the building. Richards testified that he detected “a petroleum type odor” at the scene of the fire. He collected some debris that was saturated with the accelerant and submitted it for chemical analysis. The criminalistics report verified that the petroleum product was gasoline.

Defendant, who was at one time a member of Amvets, confessed in detail to obtaining a container of gasoline from a truck parked by a nearby tire company, and then throwing it, and a lighted match, into the Amvets building. At the time of the fire the building was occupied by approximately one hundred persons.

The state provided sufficient corroborating evidence in Count 3 to allow for the admissibility of the confession. The evidence sufficiently establishes the corpus delicti of aggravated arson.

Count 4 charged defendant with simple arson of Star Hardware and Furniture Company on December 24, 1980. The damage to the building amounted to approximately $150,000. The fire was determined to have originated in a wooden structure located at the rear of the store. The owner testified that he stored cardboard boxes in the shed during the Christmas season. This fire was also determined to be of suspicious origin by the Deputy Fire Marshal.

Joe Childers testified that he was with the defendant the night of the fire, and that defendant told him that he was “going to burn the damned thing.” Defendant carried two plastic jugs containing a “clear looking liquid” down the alley behind Star Hardware. Childers followed defendant down the alley but left after defendant climbed a ladder to the roof of a building next to Mini-Togs. Shortly thereafter, defendant told Childers that he “burned the damn thing” and they both witnessed the flames from the burning building.

The inculpatory statements of defendant alleged that he set fire to cardboard boxes stacked up in the rear of the building with a cigarette lighter.

The evidence of arson presented by the state at trial provided sufficient corroboration that a crime was committed to allow the admissibility of defendant’s statements. Moreover, defendant’s statements reveal facts which suggest an intimate knowledge of the origin of the fires.

This assignment lacks merit.

Argument No. ⅛ (Assignment of Error No. 6)

By this assignment defendant contends that the trial court erred in denying his special requested jury charge and reading a jury charge which failed to comply with C.Cr.P. 804 A(2). Specifically, defendant argues, relying upon State v. Mack, 403 So.2d 8 (La.1981), that the trial court failed to instruct the jury that it should consider the lack of evidence as well as the sufficiency of the evidence in giving the defendant the benefit of every reasonable doubt.

Defendant requested that the trial court read the following charge to the jury:

“The accused is presumed to be innocent until he is proven guilty beyond a reasonable doubt.
The consequence of this rule of law is, he is not required to prove his innocence, but may rest upon the presumption in his favor until it is overthrown by positive, affirmative proof, the burden is upon the State to establish to your satisfaction, and beyond a reasonable doubt, the guilt of the accused, as to the crime charged in the Bill of Information or any lesser one included in it.
If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your sworn duty to give him the benefit of that doubt and return a verdict of acqui-tal (sic). And, even where the evidence demonstrates a probability of guilt, yet, if it does not establish it beyond a reasonable doubt, you must acquit him.”

The trial judge denied the request for the jury charge, noting that it was covered by his general charge.

After the trial judge refused to give defendant’s requested special charge, the defendant did not object to the judge’s general charge on the grounds of noncompliance with C.Cr.P. 804 either before or after the jury was retired. The defendant first raised this issue on appeal. We have held that a defendant may not wait until his appeal before he complains of the trial judge’s failure to comply with C.Cr.P. 804. Rather, the defendant must bring the error to the attention of the trial judge at a time when the judge can cure the error. State v. Mack, supra; State v. Lee, 346 So.2d 682, 685 (La.1977). Otherwise, his objection shall be deemed waived.

This assignment lacks merit.

Argument No. 5 (Assignment of Error No. 7)

By this assignment defendant contends that the trial court erred in denying his motion for a new trial since: (1) No evidence, testimonial or physical, was adduced to establish the corpus delicti for the offenses of simple and aggravated arson pri- or to the introduction of confessions made by defendant; (2) No evidence, testimonial or physical, was adduced to establish that there had been a fire set to a structure belonging to another without his permission independent of defendant’s confession; and (3) No evidence, direct or circumstantial, was introduced to prove the existence of the specific criminal intent necessary for conviction.

The first two reasons have already been addressed and resolved in Assignment of Error No. 5. Concerning reason (3), sufficient evidence was introduced to prove the existence of the intent necessary for convictions of aggravated and simple arson. R.S. 14:51 defines aggravated arson as “the intentional damaging by any explosive substance or the setting fire ... whereby it is foreseeable that human life might be endangered.” We have interpreted this statute as making punishable “the intentional setting fire to any structure or movable whereby a person of reasonable intelligence and perception would anticipate that human life might be endangered.” State v. Baron, 416 So.2d 537, 538 (La. 1982).

Simple arson is defined as “the intentional damaging by any explosive substance or the setting fire to any property of another, without the consent of the owner ...” R.S. 14:52.

In neither of these statutes is there any mention of specific criminal intent; both statutes only refer to “the intentional damaging” or “the setting fire” without any qualifying provisions. According to R.S. 14:11, “in the absence of qualifying provisions, the terms ‘intent’ and ‘intentional’ have reference to ‘general criminal intent.’ ” The intent required for a conviction of either aggravated or simple arson as defined by R.S. 14:51 and 14:52 is general criminal intent. See Reporter’s Comment, R.S. 14:11.

In State v. Elzie, 343 So.2d 712, 714 (La.1977), this court found that “general intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire on his part to have accomplished such result.” R.S. 14:10(2).

We find that general criminal intent was present in this ease. Both the evidence presented and the confessions indicated that defendant set fire to the structures. For both the crimes of simple and aggravated arson the state was only required to prove beyond a reasonable doubt that defendant either intentionally damaged a structure by an explosive substance or set fire to a structure. In addition, for aggravated arson the state has the burden of showing that it was foreseeable that human life would be endangered, i.e., when from the circumstances the danger to human life may reasonably be expected to follow from the defendant’s setting fire to the structure, irrespective of any subjective desire on his part to have accomplished such a result. State v. Elzie, supra. The state met its burden of proof on all four counts.

The trial judge adequately disposed of the defendant’s assertions at the hearing on the motion for a new trial held on November 24, 1981. This court recently stated in State v. Molinario, 400 So.2d 596, 599 (La.1981), that “... it is well settled that the decision on a motion for a new trial rests within the sound discretion of the trial judge who is accorded considerable latitude in evaluating the reliability of evidence and its potential impact on the verdict. His ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion....” There was no abuse of discretion.

This assignment lacks merit.

For the reasons assigned, the convictions and the sentences are affirmed.

      . On February 19, 1981 the state originally charged defendant with four counts of simple arson under R.S. 14:52. Defendant pleaded not guilty.

      . "Simple arson is the intentional damaging by any explosive substance or the setting fire to any property of another, without the consent of the owner and except as provided in Section 51 of this Title.
      Whoever commits the crime of simple arson, where the damage done amounts to five hundred dollars or more, shall be fined not more than fifteen hundred dollars, and imprisoned at hard labor for not less than two years nor more than fifteen years.
      Where the damage is less than five hundred dollars, the offender shall be fined not more than twenty-five hundred dollars or imprisoned for not more than five years, or both." R.S. 14:52.

      . “Q. All right. Now, when you got there, did you feel that the fire was suspicious or not?
      A. Yes, ma'am. I did.
      Q. All right. Explain to the jury why.
      A. Due to the fact that we didn't find any utilities in that building on or we found no reason for that fire back in the back of that building.
      Q. What do you look for? Could you explain to the jury in a little more detail what you look for as far as the natural causes of a fire?
      A. Well, we look for machinery or faulty wires or something like that.
      Q. Okay. Was there any wiring — you said there were no utilities on. Now, what do you mean?
      A. We had no electricity and no gas.
      Q. You mean there were none hooked up to the building at all?
      A. That is right. It was off.
      Q. What about internal combustion type of thing or what about this cloth?
      A. I didn’t get certification on that. I mean I don’t see it would be though.
      Q. Okay. So is what you are saying is you didn’t find any natural causes for the fire?
      A. That is correct. I did not."

      . The can could not be located at the time of trial.

      . Sam Messina, the owner of Sam’s Bar, testified that defendant had drunk at least six bottles of wine the day he was arrested.

      . "Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

        (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4)The refusal of the judge to direct a verdict. An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial." C.Cr.P. 770.

      . "The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms ‘intent’ and ‘intentional’ have reference to 'general criminal intent.’ ” R.S. 14:11.
      “Reporter’s Comment Mental element:
      This section amplifies the three preceding sections, and makes it perfectly clear that the required mental element varies with varying crimes. In some crimes, particularly criminal attempts, ‘specific intent’ is required. In still others, such as negligent homicide, only 'criminal negligence’ is necessary.

        The definitions of the great bulk of the crimes in the Code, however, state that there must be an 'intentional' production of certain prescribed consequences (for example, 'Aggravated arson is the intentional damaging * * * or setting fire to any structure ***’). However, in some crimes the production of certain consequences plus a specific intent to produce or accomplish some prescribed consequences is necessary (for example, ‘Forgery is the false making or altering, with intent to defraud, of any signature ***’). Such an intent is a ‘specific intent.’

        The concluding sentence of this section indicates that when the term ‘intentional’ or ‘intent’ is used alone without modification, it refers to ‘general criminal intent’ as defined in the preceding section.” (Emphasis added).


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Isaac SWEENEY.
    No. 82-KA-1913.
    Supreme Court of Louisiana.
    Nov. 28, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Carey Schimpf, Asst. Dist. Atty., for plaintiff-appellee.
    Glenn Langley, Shreveport, for defendant-appellant.
   MARCUS, Justice.

Isaac Sweeney was charged by bill of information with possession with intent to distribute phenmetrazine in violation of La. R.S. 40:967(A). After a bench trial, defendant was found guilty as charged and sentenced to serve five years at hard labor with credit for time served. On appeal, defendant relies on ten assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash based on a denial of his right to a speedy trial as guaranteed by the federal and state constitutions.

Defendant was arrested on April 27, 1981. At that time, he was out on bond after an arrest for forgery and receiving stolen goods. On July 24, defendant filed a motion in this case for a speedy trial. On September 8, defendant pled guilty in the other matter to a reduced charge of attempted theft under one hundred dollars and was sentenced to serve six months with credit for time served. Meanwhile, this case had been set for trial for September 28. On that date, the state and defense both announced they were ready to proceed to trial. However, the case was first reset and then continued to the next jury term due to another trial which consumed the entire period. Twice more, in both the October 19 and November 16 jury terms, the case was reset and then continued to the next jury term due to other trials. On November 16, defendant filed a motion to quash based on a denial of his right to a speedy trial. The trial judge denied the motion on November 30, 1981 without a hearing. This court granted writs and ordered a contradictory hearing be held pursuant to La.Code Crim.P. art. 701(D). At that hearing (held on December 22), the trial judge found any delay from arrest to the first trial date had not been undue because of reassignments and problems concerning codefendant’s counsel. Evaluating all the circumstances since then, the judge found the state had exercised due diligence and denied defendant’s motion to quash. On December 15, defendant posted bond. Defendant was tried and convicted on January 14-15, 1982.

The right to a speedy trial is guaranteed by the sixth amendment to the federal constitution and by article one, section sixteen of our state constitution. The right attaches when an individual becomes an accused whether by formal indictment or bill of information or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Perkins, 374 So.2d 1234 (La.1979). Four factors must be considered in determining whether a defendant has been deprived of his right to a speedy trial: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The initial inquiry is into the length of delay; if the delay is presumptively prejudicial, there will be an inquiry into the other factors. The length of delay that will provoke such an inquiry is dependent upon the peculiar circumstances of the case. State v. Dewey, 408 So.2d 1255 (La.1982).

In this case, the length of delay between arrest and the felony trial — eight and one-half months — was not undue. Also, the reason for the delay, which is closely related to the length of the delay, involved the inordinate number of criminal cases on the docket at that time. Defendant concedes there was no bad faith by the state in delaying his prosecution. Furthermore, while he did timely assert his right, there was no prejudice to defendant. Defendant’s time served from arrest to October 19 was attributed to his sentence on an unrelated offense. The following two months of incarceration prior to his posting bond was not oppressive. Of course, defendant was prejudiced to some extent by living under a cloud of suspicion and anxiety. Most importantly, however, defendant’s ability to adequately prepare his defense was not impaired.

Hence, we do not find that defendant’s right to a speedy trial has been violated. The trial court properly denied the motion to quash.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion for the trial judge to view the scene of the crime. Defendant argues the trier of fact should have viewed the scene at night since the officers’ ability to observe and identify defendant was the crucial defense issue.

Defendant requested that the trial judge look at the scene of the crime with binoculars from the vantage point of the officers and see if he could see the specific details of reenacted transactions like those the officers said they saw on the night in question. The defense at trial maintained that if the officers were wrong about the details of the drug sales they claimed to have seen, they could be wrong about the defendant being a participant, instead of being a late arrival as he claimed. The trial judge denied the request. He explained that there was ample testimony on the distances and lighting conditions at the scene and an accurate defense diagram. Considering this evidence and the terrible winter conditions then prevailing and recognizing the issue was primarily one of credibility between the officers and the defense witnesses, the trial judge declined to place himself in a position of becoming a witness as to what he himself could see.

The grant or refusal of a motion to have the trier of fact view the scene of the crime is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. La.Code Crim.P. art. 762(2); State v. Moore, 432 So.2d 209 (La.1983); State v. Johnson, 294 So.2d 229 (La.1974).

In this case, there was ample evidence before the judge to make sufficiently clear the layout and lighting conditions under which the officers had observed the incidents. Hence, the trial judge did not abuse his discretion in denying defendant’s motion to view the scene of the crime.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial court erred in allowing the state to introduce in evidence the binoculars used by Officer Gaha-gan to observe the drug sales, he argues that the state had failed to produce the binoculars in response to his pretrial motion for discovery.

On motion of defendant, the court shall order the district attorney to permit or authorize defendant to inspect or examine tangible objects which are within the possession, custody or control of the state and which are intended for use by the state as evidence at the trial. La.Code Crim.P. art. 718. The duty to disclose is a continuing one. La.Code Crim.P. art. 729.3. Where the defendant has been lulled into a misapprehension of the strength of the state’s case by the failure to fully disclose, such a prejudice may constitute reversible error. However, the failure of the state to comply with the discovery procedure will not automatically command reversal. State v. Ray, 423 So.2d 1116 (La.1982). The defendant must show prejudice before this court will reverse his conviction. State v. James, 396 So.2d 1281 (La.1981). The court will review the record for a determination of whether any such prejudice which may have resulted from the non-compliance caused the trier of fact to reach the wrong conclusion. State v. Ray, supra.

At trial, the prosecutor explained that the binoculars were not listed in the discovery response because he had not intended to introduce them in evidence and had just obtained possession of them that morning. Upon the defendant’s objection, the trial judge ascertained that the use of binoculars by Officer Gahagan had been made known throughout the proceedings. Indeed, the record reveals that Officer Ga-hagan’s testimony at the preliminary examination on their use was no different from that at trial, and that their use was referred to at a later evidentiary hearing. Further, defendant concedes he was shown the binoculars on the morning before trial.

Under the circumstances, we find no prejudice to defendant resulting from the failure of the state to list the binoculars in the discovery response. With no surprise or prejudice, the trial judge did not abuse his discretion in allowing the binoculars in evidence.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in allowing an expert witness for the state to respond to the prosecutor’s question concerning the reason for increased illegal use of phenmetrazine.

The witness was qualified as an expert in the identification of phenmetrazine and its use both legally and illegally. Pretermit-ting the propriety of the question, the witness responded that he did not know why there is increased use. This response created no possible prejudice.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for acquittal based on the state’s failure to establish a proper chain of custody for the admission of the phenmetrazine.

The state presented Officer Gahagan, who identified the pills and matchbox he had seized at the time of defendant’s arrest and the marked envelope in which he turned them over to the crime lab the next day. The chemist who performed the test at the crime lab testified that he received the envelope and stored it in the locked evidence locker. Officer Gahagan testified that he picked up the envelope from the crime lab and brought it to court.

To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. State v. Drew, 360 So.2d 500 (La.1978). The law does not require that the evidence as to custody eliminate all possibilities that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972).

After reviewing the record, we find the state laid an adequate foundation for admission of the phenmetrazine by showing it was more probable than not that the items admitted were connected with the case. Hence, the trial judge did not err in admitting the phenmetrazine in evidence and denying the motion for acquittal.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in denying his motion for acquittal based on the state’s failure to prove possession of the phenmetrazine by defendant.

Officer Gahagan testified that he observed defendant participate in two drug transactions immediately before his arrest. In the first sale, a female approached defendant standing in front of the vacant house. Defendant in turn spoke to Gills, who was sitting on the porch, and Gills was heard to state, “she already owes me for five.” After more conversation, the female and defendant walked up to the porch area where Gills reached into a tree fork and retrieved a matchbox. Gills took out and handed pills to the female and received money from her. Shortly thereafter a car drove up, and defendant walked up to the driver’s window and then returned to the porch. Gills again retrieved the matchbox and sorted out a number of pills, which he handed to defendant. Defendant brought the pills to the driver and took money in exchange. Officer Holly’s testimony corroborated this account of defendant’s movements. Fourteen phenmetrazine pills were recovered from the matchbox in the tree upon defendant’s and Gills’ arrest.

One need not actually possess the controlled dangerous substance to violate the prohibition against possession thereof, constructive possession being sufficient. A person may be in constructive possession of a drug even though it is not in his physical custody if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug if he willfully and knowingly shares with a companion the right to control it. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Knight, 298 So.2d 726 (La.1974).

Viewing the evidence in the light most favorable to the state, a rational trier of fact could have found beyond a reasonable doubt that defendant had either actual or constructive possession of the drugs in question. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Hence, the motion for acquittal was properly denied.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OP ERROR NO. 7

Defendant contends the trial court erred in permitting the state to question a defense witness concerning a prior arrest.

Victor Young was called by defendant as a witness. He testified that he was at the intersection where defendant was arrested, he saw defendant arrive, and in the short time defendant was there, he saw no transactions as described by the state. Young admitted to certain prior convictions. On cross-examination, the state questioned Young about a drug arrest some months before in which the state’s witnesses against defendant, Officers Gahagan and Holly, had participated. The trial judge allowed the questioning over defendant’s objection, explaining that the question related to whether Young was biased as to these two officers.

Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness. La.R.S. 15:495. When the purpose is to show that in the special case on trial the witness is biased, has an interest, or is corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption. La.R.S. 15:492.

The limitation of La.R.S. 15:495 on the use of arrests in impeachment applies only to the method of impeaching the credibility of a witness by his prior conviction of a crime. Irrespective of its relevance to the present prosecution, a conviction per se historically is a relevant factor for the trier of fact’s evaluation of a witness’ credibility; however, the mere fact that a witness has been previously arrested or indicted is not regarded as logically relevant to the jury’s evaluation on that ground, being a mere accusation. However, another accepted method of impeaching the credibility of a witness is by showing that the witness is biased or interested in the special case on trial because of partiality or of any acts, relationships, or motives reasonably likely to produce it. Louisiana jurisprudence has generally permitted full scope of cross-examination in the interest of exposing for trier of fact evaluation any bias or interest of the witness which might influence his perceptions or color his testimony. State v. Robinson, 337 So.2d 1168 (La.1976).

Only one prior arrest was raised by the state. The questioning went to whether Young had been arrested by the same two officers who arrested and testified against defendant. The testimony was offered solely to show bias, interest or corruption in this particular case. Indeed, Young’s testimony was directly relevant to that issue:

Q Do you feel that these narcotics agents in particular and narcotics agents in general are out after you for any particular reason? Do you feel like they are persecuting you?
A I feel so.
Q You think so sometimes?
A Yes, sir.
Q These agents in particular?
A Yes, sir.

Thus, the present cross-examination as to the arrest was not within the prohibition of La.R.S. 15:495 because it was independently relevant and permitted under La.R.S. 15:492 to show particular bias in the special case before the court.

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8 Defendant contends his conviction was based on insufficient evidence.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Graham, 422 So.2d 123 (La.1982).

Officers Gahagan and Holly testified that they observed defendant participate in two drug sales from their vantage point in a cemetery immediately overlooking the street corner in question on the night of the crime. Both testified that the area was well lit. Officer Gahagan used binoculars to observe the two transactions from about eighty feet away. The officers then returned to their car and proceeded around to the arrest site. Both maintained the scene was out of their sight only three to five minutes. Defendant claimed that he only walked up to the corner moments before the police arrived, and defense witnesses testified that another named person dressed similarly to defendant that night had been present but left right before defendant and then the police arrived. Officer Gahagan testified that he knows that other person and that he was not there but defendant was, and that this identification was based on facial recognition and not clothing alone.

Viewing this evidence in the light most favorable to the state, we find a rational trier of fact could have found beyond a reasonable doubt that defendant did possess phenmetrazine with intent to distribute.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in imposing an excessive sentence.

The defendant was sentenced to serve five years at hard labor. The maximum penalty that defendant was subject to was imprisonment for ten years at hard labor and a fine of fifteen thousand dollars. At the sentencing hearing, evidence of defendant’s character, personal history and other factors was fully developed and considered by the trial judge. While unemployed at the time of arrest, defendant was employed by the City of Shreveport while awaiting sentence arid had been scheduled to begin CETA vocational training before his arrest. Defendant’s pastor stated his willingness to have defendant entrusted to his custody on probation; however, that was not recommended in the presentence report. Defendant, single and age 29, had no prior felony convictions. He had served six months for receiving stolen goods, six months for attempted simple escape, two months for possession of marijuana, and six months for misdemeanor theft. Defendant had also been arrested for burglary, distribution of heroin, aggravated assault, and simple battery. The trial judge concluded that it was likely that defendant’s conduct would recur and that defendant needed confinement in a custodial environment. In reaching his conclusion, the trial judge considered that defendant was literally providing curb service delivery of drugs for profit.

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

Under the circumstances, we are unable to say that the trial judge abused his discretion in sentencing defendant to five years at hard labor. We do not consider the penalty imposed so disproportionate to the crime committed as to shock our sense of justice. Hence, we do not find defendant’s sentence excessive.

Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends the trial court erred in finding probable cause at the preliminary examination. He further argues that there was no probable cause for his war-rantless arrest.

The question of probable cause for defendant’s pretrial imprisonment is now moot since defendant has been tried and convicted. State v. Luckett, 327 So.2d 365 (La.1976); State v. Richardson, 258 La. 62, 245 So.2d 357 (La.1971).

A defendant adversely affected may move to suppress any evidence from use at trial on the ground that it was unconstitutionally obtained. La.Code Crim.P. art. 703. The record reveals that defendant filed such a motion but later withdrew it. Hence, probable cause for his arrest is not properly before us. In any event, we find ample evidence in the eyewitnesses’ accounts by Officers Gahagan and Holly of the ongoing drug sales to support probable cause for defendant’s arrest.

Assignment of Error No. 10 is without merit.

DECREE

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

      . Defendant now claims that one potential alibi witness, Mrs. Laura Law, was ill and unavailable at the time of trial. The record reveals no mention of Laura Law or her illness by defendant to the trial court. Moreover, defendant conceded at trial that he only required two of the three witnesses involved. The main one was Sandra Law, defendant’s ex-girlfriend, who testified that she remembered that defendant left her house shortly before the time of his arrest on April 27, 1981. Although the court reminded defendant he was entitled to instanter subpoenas without bond at his pleasure, defendant did not even seek to compel the testimony of Rudy Law (who had refused by phone to come to court that morning). Given the nature of Sandra Law’s testimony, the absence of Laura Law was de minimis.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Zane Lanier GREEN.
    No. 82-KA-1914.
    Supreme Court of Louisiana.
    Nov. 28, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, John Sinque-field, Asst. Dist. Attys., for plaintiff-appel-lee.
    David Price, Baton Rouge, M. Michele Fournet, Asst. Public Defender, for defendant-appellant.
   WATSON, Justice.

Defendant, Zane Lanier Green, was found guilty of forcible rape in violation of LSA-R.S. 14:42.1 and sentenced to fifteen years at hard labor, the first two years without benefit of parole, probation or suspension of sentence. On appeal, Green relies on five assignments of error, consolidated into four arguments, for reversal of his conviction and sentence.

FACTS

On September 14, 1980, at approximately 5:00 A.M. the victim, a twenty year old woman sleeping alone in her Baton Rouge apartment, was awakened by a man kneeling beside her bed. The man, who had a flashlight shining in front of his face, put his hand over her eyes and told her not to look at him and she would not be hurt. The assailant taped her eyes, tied her wrists together and then tied her bound hands to the bed post. The intruder then turned on the overhead light, enabling the victim to see his outline, general build, height, haircut and color. After removing her underclothes, the assailant raped her. The rapist then pulled the cord from the telephone, untied her hands from the bed post and told her to stay there until he was gone. When she was sure he had gone, the victim went to her parent’s home where the police were called. Some three weeks later, the victim positively identified defendant in a police lineup.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in denying a motion to suppress an inculpatory statement, which was allegedly taken in violation of his Fifth and Sixth Amendment rights.

The statement was obtained under the following circumstances. In late October, 1981, Lieutenant Shortess of the East Baton Rouge sheriff’s office telephoned the public defender representing Green and requested a polygraph exam for her client. The defense attorney agreed to the exam but declined to attend. The parties did not formalize any agreement about testing procedure.

According to defense counsel, Lieutenant Shortess told her the police wanted the test because they felt defendant was the wrong man. Counsel agreed to the test because the result could not be used in court. Although she claimed that she indicated, at least by implication, that she did not want her client interrogated beyond the polygraph, counsel did not specify this as a condition. The attorney was unaware it was standard procedure for the polygra-phist to confront the person who fails an exam. Although she did not attend the test, she could not remember the specific reason for her absence.

On October 31, 1981, defendant was given a polygraph test by Don Zuelke, a poly-graphist whose company was under contract to the sheriff’s office. Prior to the test, defendant signed a waiver form and was verbally advised of his Miranda rights by Zuelke. After the one and one half hour test, Zuelke analyzed the result and concluded that defendant was not telling the truth. He confronted Green, who admitted he had committed the rape and two others. Zuelke summoned two police officers into the testing room who readvised defendant of his Miranda rights, before he repeated the inculpatory statement.

Fifth Amendment Claim

Before a confession or inculpato-ry statement can be introduced into evidence, the state has the burden of proving affirmatively, beyond a reasonable doubt, that it was free and voluntary, and not made under the influence of fear, duress, menaces, threats, inducements, or promises. State v. Burkhalter, 428 So.2d 449 (La., 1983); State v. West, 408 So.2d 1302 (La., 1982); State v. Henry, 352 So.2d 643 (La., 1977). Additionally, it must be shown that an accused who makes a statement or confession during custodial interrogation was first advised of his Miranda rights. State v. Henry, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court’s conclusion about the admissibility of a confession will not be disturbed if supported by the evidence. State v. Burkhalter, supra.

Defendant concedes that he waived his right to remain silent during the polygraph testing, but argues that the waiver did not extend to the post-test questioning. After the testing, he contends that failure of the polygraphist to repeat his Miranda rights and secure the presence of his attorney renders the statements inadmissible.

In State v. Sonnier, 380 So.2d 1 (La., 1980), defendant sought to suppress an in-culpatory statement which was the fruit of a polygraph examination. As a preliminary step to the examination, Sonnier was asked if he knew why he was there. Sonnier admitted his participation in the crime. The court rejected defendant’s argument that the statement was “part of the process” of the polygraph examination and therefore inadmissible under State v. Catanese, 368 So.2d 975 (La., 1979). The statement was not a “result” of a polygraph exam because it was made before the test began. Sonnier held that the statement was voluntary and admissible.

In State v. Henry, 352 So.2d 643 (La., 1977) defendant gave an inculpatory statement during the course of a polygraph exam conducted according to a detailed written agreement. Henry held the confession was voluntary, stating that “his decision to confess, then, was a reaffirmation of his earlier waiver.” 352 So. at 647. Habeas corpus relief was granted in State v. Henry, supra. Henry v. Dees, 658 F.2d 406 (5 Cir., 1981). Applying a “totality of the circumstances” test, the United States Fifth Circuit concluded that Henry’s statements were not freely and voluntarily made and should have been suppressed. Considered important were the facts that the examination was aborted and a definitive test result was never secured. The court found that Henry’s mental capacity brought into serious question his ability to understand the waiver forms he executed. Further, the court noted that neither Henry nor his counsel contemplated that Henry would be exposed to “questioning which was not an integral part of a polygraph examination.” 658 F.2d at 410.

Other federal appellate decisions have reached contrary results. In Keiper v. Cupp, 509 F.2d 238 (9 Cir., 1975) the appellant challenged the voluntariness of his post-polygraph statement. He had been given his Miranda rights prior to the test. The Ninth Circuit held that the statement was voluntary, finding no authority “to support appellant’s contention that he should have been given another Miranda warning after being told of the ‘gross deceptive patterns’ revealed in his polygraph test.” 509 F.2d at 241. See also United States v. Little Bear, 583 F.2d 411 (8 Cir., 1978).

In Fields v. Wyrick, 682 F.2d 154 (8 Cir., 1982), Edward Fields sought habeas corpus relief after a state court conviction for rape. Fields, following consultation with his retained counsel, had requested a polygraph examination. Prior to testing, he signed a written consent document informing him of his Miranda rights. Despite the waiver form, Fields was advised that he had the right at any time to stop answering questions and speak with his lawyer. At the conclusion of the two hour test, the examiner told Fields there had been some deceit and asked if he could explain his answers. Fields then admitted having sexual intercourse with the eighty-one year old victim but said she had instigated and consented to it. Police were brought in, who readvised Fields of his Miranda rights, before he repeated his version of the crime. This “confession” had been introduced at Field’s state court trial. The Eighth Circuit found that Fields waived his right to have counsel present while the polygraph examination itself was being conducted, but the state had failed to satisfy its burden of proving that Fields knowingly and intelligently waived his Fifth Amendment right to have counsel present at the post-test interrogation. The court suggested that if the examiner had provided new Miranda warnings prior to the post-test interview there would have been no violation.

The United States Supreme Court in an eight to one per curiam opinion reversed the Eighth Circuit. Wyrick v. Fields, — U.S. -, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). Under the “totality of the circumstances” analysis of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), Fields validly waived his right to have counsel present at the post-test questioning. The Eighth Circuit “rule” that the police must again advise the suspect of his rights before questioning him about the results of the polygraph was characterized as illogical.

“[T]he questions put to Fields after the examination would not have caused him to forget the rights of which he had been advised and which he had understood moments before. The rule is simply an unjustifiable restriction on reasonable police questioning.” Id. — U.S. -at -, 103 S.Ct. 394 at 397, 74 L.Ed.2d 214 at 219.

The holding rested exclusively on Fifth Amendment considerations.

The reasoning of Wyrick v. Fields, supra, is persuasive. Green was advised of his rights before the testing. He had not previously asserted his right to counsel in any police interrogation. His attorney had agreed that her client could take the test; set no parameters for its conduct; and chose not to attend.

Green freely attended the test, after being advised of his Miranda rights, including his right to have his attorney present. He was advised that he could terminate the interview and leave at any time. At the conclusion of the one and a half hour test, defendant was confronted with his failure to tell the truth and gave an inculpatory statement.

In the totality of these circumstances, Green voluntarily waived his Fifth Amendment rights to silence and presence of counsel during his post-testing interrogation.

Sixth Amendment Claim

Defendant asserts that his inculpatory statement should have been suppressed because law enforcement personnel misled his attorney in securing permission for the polygraph test, thereby interfering with his Sixth Amendment right to effective counsel. Wyrick v. Fields, supra, left open the issue of whether the post-polygraph interrogation violated Fields’ Sixth Amendment right to counsel. On remand, the Eighth Circuit held that the defendant voluntarily, intelligently, knowingly and intentionally relinquished his Sixth Amendment right to have counsel present at his post-polygraph examination questioning. Fields v. Wyrick, 706 F.2d 879 (8th Cir., 1983).

The Sixth Amendment guarantees an accused the right to assistance of counsel. Government authorities cannot deny a lawyer reasonable access to the client, or ignore a request to confer with the client prior to or during an interrogation. State v. Trevathan, 414 So.2d 316 (La., 1982); State v. Matthews, 408 So.2d 1274 (La., 1982). Once an accused asserts his right to counsel, interrogation must cease. State v. Thucos, 390 So.2d 1281 (La., 1980); State v. Manning, 380 So.2d 46 (La., 1980).

After counsel is appointed, defendant may waive his Sixth Amendment right to legal representation when the government interrogates him. Moore v. Wolff, 495 F.2d 35 (8 Cir., 1974). It is incumbent upon the state to prove an intentional abandonment of a known right and rebut every reasonable presumption against waiver. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); State v. Harper, 430 So.2d 627 (La., 1983); State v. Trevathan, supra.

Green was represented by an appointed attorney. Defendant apparently never indicated that he would speak to the police only in the presence of his attorney. The police contacted defendant’s attorney and secured her consent to the polygraph test. The attorney had the right to be present at the test but chose not to attend. The defendant was advised that his attorney could be present at the test, but chose not to have her there.

Because defendant’s Fifth and Sixth Amendment rights were not violated, the trial court correctly refused to suppress defendant’s inculpatory statement.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends the trial court erred in overruling his objection to- admission of his inculpatory statement. At trial, the polygraphist testified that Green gave his inculpatory statement during an “interview”. There was no reference to the other two rapes and the fact that the polygraph test had been conducted.

Defendant correctly contends that he is entitled to insist upon introduction of the entirety of a statement used against him. LSA-R.S. 15:450; State v. Haynes, 291 So.2d 771 (La., 1974). However, a defendant may waive the benefit of the protective statute. State v. Snedecor, 294 So.2d 207 (La., 1974).

“Consequently, when the state seeks to introduce a confession, admission or declaration against a defendant which contains other crimes evidence, but which is otherwise fully admissible, the defendant has two options. He may waive his right to have the whole statement used, object to the other crimes evidence, and require the court to excise it before admitting the statement; or, he may insist on his right to have the statement used in its entirety so as to receive any exculpation or explanation that the whole statement may afford.” State v. Morris, 429 So.2d 111 at 121 (La., 1983).

Defendant also contends that his statement was taken under circumstances ordinarily inadmissible, i.e., during a polygraph exam, and he was confronted with a constitutionally impermissible choice of foregoing the exculpatory benefits of explaining the circumstances or allowing the jury to hear inadmissible other crimes evidence.

Green’s statement was not given during a polygraph exam, but after. The Snedecor line of cases control. LSA-R.S. 15:450 guarantees the right to have an entire statement offered in evidence. This option was available to Green but he chose to have references to other crimes deleted.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends the trial court erred when it allowed the state, over defense objection, to introduce evidence to establish the credibility of the victim-witness before her credibility was attacked.

On direct examination, the prosecutor was permitted to question the victim as to her education and employment history. Testimony to establish the credibility of a witness is not normally admissible until that credibility has been attacked. LSA-R.S. 15:484. State v. Passman, 345 So.2d 874 (La., 1977); State v. Boyd, 359 So.2d 931 (La., 1978). Nevertheless, a trial court does not err by allowing a few questions to any witness concerning age, family status, education and employment. Some knowledge of a witness’ background is fundamental to the fact-finding process and is not prejudicial to the defendant.

Here, defendant has not shown any prejudice. The defense did not dispute the fact of the rape but focused on alleged mistaken identity.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER SIX AND SEVEN

The defendant assigns as error the imposition of a constitutionally excessive sentence and the failure of the sentencing judge to follow the guidelines of LSA-C. Cr.P. art. 894.1.

Article I, § 20 of the 1974 Louisiana Constitution prohibits the imposition of excessive punishment. State v. Sepulvado, 367 So.2d 762 (La., 1979). A sentence is unconstitutionally excessive when it is grossly out of proportion to the severity of the offense or inflicts purposeless and needless pain and suffering. State v. Reed, 409 So.2d 266 (La., 1982).

Defendant’s fifteen year sentence is less than one half the statutory maximum penalty of forty years for forcible rape. A sentence within statutory limits may yet be constitutionally excessive. State v. Sepulvado, supra; State v. Daranda, 398 So.2d 1053 (La., 1981).

Sentence review must take into consideration the trial court’s wide discretion in imposing sentences within the statutory limits. Sentences should not be disturbed as excessive absent manifest abuse of discretion. State v. Reed, supra.

At sentencing, the trial court considered the defendant’s age, juvenile record, emotional problems, drug abuse, and other pending charges. The court noted that defendant had no past history of sexual deviation and that his victim was not physically harmed beyond the trauma of the rape. Opposed to these mitigating factors was defendant’s need of a custodial environment because he presented an undue risk to society.

There was compliance with LSA-C.Cr.P. art. 894.1 and the fifteen year sentence is not grossly disproportionate to the offense.

These assignments lack merit.

DECREE

For the foregoing reasons, the conviction and sentence of defendant, Zane Lanier Green, are affirmed.

AFFIRMED.

DENNIS, J., concurs with reasons.

      . Defendant’s first trial resulted in a mistrial on December 16, 1981. The second trial began on February 3, 1982.

      . LSA-R.S. 14:42.1 provides:
      "Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

        "Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.”

      . "Q. All right. Was there any specifics of
      what was to happen at the polygraph, was there any ground rules laid out between you and Ms. Fournet?
      "A. No rules at all, just polygraph, that was it.
      “Q. Did you indicate to her or did you tell her that the polygraph might free the man or was there any understanding about the admissibility of it or anything?
      "A. I told her, you know, if he passed the polygraph I’d do what I could, you know. I said that I’d talk to the D.A.’s Office or whoever was involved.
      “Q. At any time specifically did she tell you after the polygraph not to question the defendant?
      "A. No, sir, she didn’t.
      "Q. Okay. At any time did she tell you not to inform the defendant of the results of the polygraph after it was given?
      "A. No, sir, we didn’t go into anything just other than a polygraph exam." (Tr., Motion to Suppress, p. 40)

      . Don Zuelke formerly worked for the East Baton Rouge sheriffs office.

      . "A. Immediately upon completing the analy-
      zation of the charts and formulating an opinion based upon those charts I confronted Mr. Zane and told him that he had in fact, in my opinion, not told the truth during the exam. “Q. Okay. And what was his reactions?
      “A. Zane, uh, then began to insinuate that he could not remember whether or not he had done it. And I then asked Zane if he could have possibly committed the rape and he said at first that he possibly could have but did not remember doing it. * * * He then broke down and cried and told me that he had, in fact, committed the rape that we were testing him on along with the two other rapes that were in question."
      (Tr., Motion to Suppress, p. 49)

      . Defendant was then returned to the detective bureau but refused to give a formal statement pending consultation with his attorney.

      . State v. Cantanese, supra, held that evidence of polygraph examination is not admissible in criminal trials.

      . Under standard procedure the examiner asked the examinee a prepared battery of questions, stopped, and then repeated the questions. In Henry’s exam, the polygraphist asked the first twelve questions, stopped the questioning and informed Henry that he "failed”.

      . Henry was classified as an educable mental retardate with an I.Q. between sixty-five and sixty-nine. His reading skills were on a second grade level.

      . Defendant argues State v. Weedon, 342 So.2d 642 (La., 1977). In Weedon, the defendant was arrested at home in the presence of his attorney. The attorney gave permission for Weedon to answer questions for the arrest register, but told police not to question him about anything pertaining to the crime. At booking, a second officer asked the date and time of the offense. The responses were used at trial in violation of Weedon’s right to counsel. The court noted, “The accused's constitutional rights against self-incrimination and to the effective assistance of counsel cannot be prejudiced by the state’s failure to honor its agreement not to question the accused about the crime unless his attorneys are present." 342 So.2d at 645. Here, there was no agreement between counsel and the police. Weedon does not control.

      . LSA-R.S. 15:450 provides:
      "Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford."

      . When defense counsel objected to the line of questioning the prosecutor replied:
      "Well, I have a witness here who is I guess a stranger to the jury and I’d like the jury to know something about her since I’m sure, you know, her credibility will be focused upon.” (Tr., pp. 8-9)

      . LSA-R.S. 15:484 provides:
      “Before a witness has been sworn he can be neither corroborated nor impeached, nor is testimony to establish the credibility of a witness admissible until that credibility has been attacked."

      . Green was twenty years old at the time of sentencing. He admitted to one Alabama car theft offense as a juvenile for which he received five years probation. There is a pending possession with intent to distribute charge and a rape charge not billed.