author: McCLENDON, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee, v. Oliver GRISSOM, Appellant.
    No. 15753-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Rehearing Denied May 2, 1984.

      Hunter & Scott by Louis G. Scott, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty. by Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Before JASPER E. JONES and NORRIS, JJ., and McCLENDON, J. Pro Tern.
   McCLENDON, Judge Pro Tem.

The defendant was found guilty by a jury of aggravated burglary (R.S. 14:60) and sentencéd to 20 years at hard labor. He appealed. For the following reasons we affirm.

At approximately 1:00 A.M. on July 27, 1982 the victim, Edith Brisco, was grabbed from behind by a masked assailant in the hallway of her Monroe residence. The assailant threatened her life twice and attempted to force her into a bedroom. Her children were awakened by her calls for help and they successfully drove the assailant from the home.

Minutes after the burglary the defendant was stopped by the police two blocks from the Brisco residence. The police officer observed the defendant throw two objects to the ground, which were determined to be a new pair of yellow or gold colored tennis shoes recently purchased for one of the Brisco children and later found missing from the home. Defendant also had in his possession a bent fork which the victim identified as her own. Blue flakes of paint found on the defendant’s hair matched the paint on the wall of the victim’s home in the area where entry was made. Finally, a neighbor identified the defendant as the person he observed fleeing the residence. Defendant was arrested and charged with aggravated burglary.

Defense counsel relied upon five assignments of error in seeking to overturn defendant’s conviction.

Assignments one and two relating to (1) refusal of the trial judge to permit defendant to present evidence of his past relationship with the victim and (2) to the alleged error of permitting the trial to proceed based upon a bill of information after a grand jury had failed to indict defendant, are considered abandoned because neither was briefed or argued. State v. Domingue, 298 So.2d 723 (La.1974); State v. Reed, 324 So.2d 373 (La.1975).

Argument in brief by defense counsel covered the other three assignments in reverse order.

Defendant’s fifth assignment of error related to the court’s alleged error in dismissal of a motion to quash filed because the bill of information was not timely filed. It is further argued that the error was compounded by dismissal being made out of the presence of defendant.

La.C.Cr.P. Article 701(B) states:

The time period for filing a bill of information or indictment after arrest shall be as follows:
(1) When the defendant is continued in custody subsequent to an arrest an indictment or information shall be filed ... within sixty days of arrest if defendant is being held for a felony.
(2) ...
Failure to institute prosecution as provided in subsection (1) shall result in release of the defendant if, after contradictory hearing with the district attorney, just cause for failure is not shown....

The defendant was arrested on July 27, 1982; the bill of information was filed on January 17, 1983. The motion to quash and motion to release were filed on February 7, 1983. A hearing on the motion was held on February 8, 1983; the court minutes reflect the defendant made no appearance in court and the motion was dismissed. The defendant, represented by counsel, appeared in court two more times prior to trial and made no objection to the dismissal of the motion to quash. Clearly, defendant has failed to prove he was prejudiced by the delay in filing the bill. Even had he and his counsel appeared at the time set (February 8, 1983) and argued successfully the motion to quash, he would only have been entitled to release from incarceration, not discharge from prosecution. As noted by the State, defendant was being held on other charges and would not even have accomplished release.

The defendant has a right to be present at all stages of the proceedings, but his presence was not essential to the ruling on the motion to quash (C.Cr.P. Art. 834). This assignment is without merit.

Next the defendant argues under Assignment No. 4 that the trial court erred in denying his motions for a mistrial after two state witnesses made reference to other crimes evidence.

While the victim was being cross-examined by defense counsel on matters relating to her prior relationship with defendant, she was asked when she stopped seeing the defendant. She answered, “I stopped seeing him when he went to the penitentiary.” Defendant moved for a mistrial which was denied.

While cross-examining the arresting officer, Larry Martin, the defense counsel asked if the officers continued to look for suspects in the area after the defendant’s arrest. The officer answered, “Immediately after the arrest, which at the time was on a possession of marijuana charge ... I had my hands full trying to straighten everybody out, then we continued to patrol the area.” Again defendant moved for a mistrial which was denied.

The state may not introduce evidence of criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that the accused has committed the charged offense or that he is a man of bad character. State v. Jackson, 396 So.2d 1291 (La.1981).

However, La.C.Cr.P. Art. 771 provides that if a witness makes a prejudicial remark against a defendant, the court shall admonish the jury to disregard the remark. If the admonition is not sufficient to insure a fair trial, then the court may grant a mistrial.

In State v. Jackson, supra, the court made the following pertinent comment:

“Even if these remarks were within the contemplation of Article 771, it does not follow that a mistrial should have been granted since, in the absence of clear prejudice, the defense is only entitled to have the trial judge admonish the jury to disregard the objectional remark. State v. Lewis, 315 So.2d 626 (La.1975).” (Emphasis added)

The trial judge offered to admonish the jury to disregard the remarks in both instances; however, defense counsel opted instead to have a special instruction given to the jury regarding other crime evidence. The defendant cannot complain of this tactical decision on appeal. Also, the remark by the victim was unsolicited and not designed by her to prejudice the accused. Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for reversal of a conviction. State v. Jackson, supra. This assignment has no merit.

Finally, the defendant complained in Assignment No. 3 that the sentence is excessive because the trial court failed to consider mitigating factors connected with his former relationship with the victim.

The record reflects the trial court considered the following in sentencing the defendant: the extensive prior criminal record of the defendant, the violent nature of the offense, the likelihood that the defendant would commit other crimes, and the fact that the defendant’s parole had been revoked twice in the past. The trial court then sentenced the defendant to 20 years at hard labor. By stating for the record the factual basis for the sentence prior to sentencing, the trial judge adequately complied with C.Cr.P. Art. 894.1.

The defendant was subject to a maximum prison term of 30 years. Clearly, a sentence of two-thirds the maximum is not excessive in light of the offense and defendant’s background. This assignment lacks merit.

For these reasons the conviction and sentence are affirmed.


source: Caselaw Access Project

author: NORRIS, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Jim YOUNG, Appellant.
    No. 15768-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 25, 1984.

      M. Randal Fish, Benton, for appellant.
    William J. Guste, Jr., Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Bul-lers, Asst. Dist. Atty., Benton, for appellee.
    Before JASPER E. JONES and NORRIS, JJ., and McCLENDON, J. Pro Tem.
   NORRIS, Judge.

Defendant, Jim Young, appeals his jury conviction of second degree murder in violation of La.R.S. 14:30.1 assigning two errors:

(1) The trial court erred in granting a blanket Fifth Amendment privilege to HARRY CALVIN, a witness called on behalf of defendant.
(2) The trial court erred in failing to grant defendant’s motion for mistrial after the District Attorney, over objection of defense counsel, deliberately elicited inadmissible testimony concerning other crimes committed by the defendant.

Finding no merit to either, we affirm.

FACTS

On December 13, 1982, defendant, Terry Spears Zenor and Harry Calvin went to the Tornado Lounge in Bossier City in Calvin’s vehicle. After their arrival, two female employees of the lounge became involved in an altercation with Terry Zenor over a rabbit coat which the employees felt had been previously taken from the lounge. During this argument, the defendant interceded and struck the husband of one of the employees. At some point thereafter, Leo Armstrong, who was sitting at the bar drinking in a visibly intoxicated condition, made some comments directed to the defendant to the effect that if he was going to cause trouble that he should leave. Both men resumed their seats and words were exchanged between them for several minutes. Both men then left their seats and defendant advanced toward Armstrong with a knife in his hand. Defendant then stabbed Armstrong in the abdomen with the knife which he removed and brandished in front of him in the direction of the occupants of the lounge who were told to stay away. Defendant backed through the door of the lounge accompanied by Zenor and Calvin and left in Calvin’s vehicle. A description of the vehicle was obtained by one of the lounge’s customers and furnished to the police. Defendant and his companions were later apprehended at Kelly’s Truck Stop on Interstate 20 west of Shreveport.

Meanwhile, Armstrong was taken to the L.S.U. Medical Center in Shreveport where he died a few hours later after surgery from loss of blood which caused shock and the collapse of his heart and respiratory system.

Defendant was indicted for second degree murder. Zenor and Calvin were charged with being accessories after the fact to the crime of second degree murder in violation of La.R.S. 14:25. At defendant’s trial, both Zenor and Calvin were called as witnesses on behalf of the defendant. While Zenor testified that she had observed the victim with a knife, Calvin asserted his Fifth Amendment privilege against self incrimination and refused to testify. It is the testimony of both of these witnesses that forms the basis for the assignments of error raised by this appeal.

ASSIGNMENT OF ERROR NO. 1

After being called to the stand, Calvin gave his name and address. The first question posed thereafter was:

Q. Mr. Calvin, on December 14 at the Tornado Lounge, did you see a gentlemen (sic) by the name of Lebo [Leo Armstrong] with a knife? [Bracketed material added.]

Calvin responded that he wished to plead the Fifth Amendment, and the trial court removed the jury. Out of the jury’s presence, the trial court asked Calvin if he had consulted with his attorney and if he desired to exercise the rights guaranteed to him under the Fifth Amendment. Calvin answered both questions affirmatively. While defense counsel responded that there were some matters about which he could ask Calvin that would not be incriminating to him and objected to the court’s allowing the witness to refuse to answer all questions on that ground, he did not inform the court of the nature of the questions that he might ask that might not be incriminating. The court then noted that the first question asked dealt directly with the events of defendant’s crime and indicated that it did not know exactly what questions defendant intended to ask but that any questions regarding the events surrounding the crime itself would tend to incriminate the witness thereby allowing him to assert this constitutional right. The court then asked defense counsel if he wished to ask the witness further questions and defense counsel stated that he had no further questions since “I think it’s clear what his responce (sic) would be.” The jury was returned and the witness was excused.

Defendant argues that absent peculiar circumstances it is reversible error for a trial court to allow a witness a blanket privilege under which he refuses to answer all questions since that procedure violates the defendant’s right to present a defense guaranteed by the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution of 1974.

The privilege against self incrimination must be liberally construed in favor of the party asserting it; to sustain the privilege it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim should be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. State v. Wilson, 394 So.2d 254 (La.1981). See also In Re Parker, 357 So.2d 508 (La.1978).

The general rule is that it is reversible error to allow a witness to claim a blanket privilege. State v. Darby, 403 So.2d 44 (La.1981); State v. Wilson, supra. However, that rule is subject to exceptions. See State v. Edwards, 419 So.2d 881 (La.1982); State v. Coleman, 406 So.2d 563 (La.1981); State v. Darby, supra; State v. Wilson, supra. The defendant has no absolute right to force a witness claiming his privilege against self incrimination to invoke that right before the jury and have the trier of fact draw an inference from the invocation of the privilege. State v. Edwards, supra.

Defendant contends that it was evident from the nature of the questions which could have been posed to Calvin and from Calvin’s position that an answer or an explanation of a refusal to answer all potential questions would not have resulted in injurious disclosure. However, the record is devoid of any reference to the nature or substance of any relevant questions which might have properly been posed to this witness. While arguing that there were questions which could have been asked this witness which would not incriminate him in the criminal action pending against him at the time of this trial, no questions were posed for the court’s consideration other than whether the witness had seen the victim armed with a knife. - After ruling that the witness was entitled to assert the privilege to questions regarding the events and circumstances surrounding the crime itself, the trial court asked defense counsel if he had further questions and he replied that he did not. Thereafter, the witness was dismissed.

It is evident from the record that the testimony sought to be elicited from this witness concerned whether or not the victim was armed with a knife at the time of the stabbing. We are convinced, as was the trial court, that answers given by this witness in connection with the events surrounding the stabbing coúld result in injurious disclosure to this witness in regard to the charge pending against him because one of the elements of the crime with which he was charged as defined by La. R.S. 14:25 is “knowing or having reasonable ground to believe that [the offender who is aided, concealed or harbored] has committed the felony.” Any disclosure that the witness was actually present at the scene during the commission of the crime or what the witness observed at the time of the commission of the crime would certainly be relevant to the future prosecution of this witness and could be incriminating in that a responsive answer could disclose facts which could be used against the witness in any future prosecution. See In Re Parker, supra.

The trial court did not err in ruling that any testimony by Calvin about the events of the night of December 13, 1982 might have incriminated him. In this factual context, no purpose would have been served by requiring a question by question assertion of Calvin’s privilege against self incrimination. Compare State v. Coleman, supra; State v. Edwards, supra; State v. Darby, supra. It was entirely proper to dismiss this witness once the trial court determined that Calvin would refuse to answer questions concerning the events surrounding the crime itself and defense counsel stated for the record that he did not intend to ask Calvin any further questions. The trial court’s ruling did not constitute the granting of a reversible error blanket privilege.

No person ... shall be compelled in any criminal case to be a witness against himself.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In connection with this assignment of error, defendant argues that it was reversible error for the trial court to fail to grant a mistrial after a witness’ impermissible reference to the defendant’s criminal background. On cross examination of Terry Zenor, the state asked:

Q. When did you first meet Mr. Young?

After defendant’s objection, the jury was removed. In argument in support of the objection defense counsel stated that the information which the state was seeking was evidence of other crimes committed by the defendant because the defendant and this witness had previously been incarcerated together in Montana. The court overruled the objection, the jury was returned and the question was rephrased:

Q. When did you first meet the defendant?
A. I met him in jail in Montana.

The defense objected and asked for a mistrial. The motion was denied, and no admonition was requested by the defendant.

A direct or indirect reference to a crime committed or alleged to have been committed by a defendant, as to which evidence would be inadmissible made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument would require a mistrial on motion of the defendant. La.C. Cr.P. Art. 770(2). A defense witness is not a court official and the unresponsive remarks of this defense witness were at best unsolicited indirect references to other crimes which are not imputable to the state. Accordingly, La.C.Cr.P. Art. 771 is applicable. State v. Stucke, 419 So.2d 939, 951 (La.1982). That article provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Consequently, in the absence of clear prejudice, the defendant is entitled only to an admonition, if requested, to the jury to disregard the objectional remark of the witness. State v. Stucke, supra; State v. Lewis, 315 So.2d 626 (La.1975). No request for an admonition was made, and the mistrial was properly denied because there was no showing made that an admonition would not have been sufficient to assure the defendant a fair trial.

This assignment of error is without merit.

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

CONVICTION AND SENTENCE AFFIRMED.

      . Article I, § 16 of the Louisiana Constitution of 1974 reads:

        Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. No person shall be compelled to give evidence against himself. An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.

      . The Fifth Amendment to the U.S. Constitution reads, in pertinent part:


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Freeman PALMER, Jr., Appellant.
    No. 15,775-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Rehearing Denied May 2, 1984.
    Writ Denied June 25, 1984.

      Indigent Defender Office by Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard Carney and Catherine M. Estopi-nal, Asst. Dist. Attys., Shreveport, for ap-pellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The defendant, Freeman Palmer, Jr., was convicted of distribution of a Schedule II Controlled Dangerous Substance, namely phenmetrazine, in violation of La.R.S. 40:967 A. He was sentenced to nine years at hard labor. He appeals his conviction and sentence relying on five assignments of error.

FACTS

On March 24, 1982 at approximately 11:00 p.m. an undercover narcotics agent with the Shreveport Police Department, accompanied by a confidential informant, went to the Castle Hotel for the purpose of buying some preludin, a pill containing phenmetrazine. The agent was wired for sound. Two backup agents were stationed a short distance away equipped with electronic receiving equipment that empowered them to listen to verbal communications between the undercover agent and those with whom he conversed. The purpose of the agents being equipped with this electronic equipment was to enable the backup agents to become immediately aware of any emergency situation in which the undercover agent became involved in order that they could render the undercover agent assistance if needed.

At the hotel the informant introduced defendant, who was standing on the steps of the hotel, to the agent. The agent asked defendant about purchasing some preludin. Defendant asked the agent how many he wanted and stated they were $25.00 each. After a short discussion the agent purchased two pills and departed. The backup agents heard this conversation but did not record it. The pills were taken to the crime lab and there positively identified as prelu-din.

ASSIGNMENT OF ERROR # 1

Defendant contends the trial court erred in denying his motion for a mistrial made during the State’s opening statement.

During his opening statement, while attempting to explain what led the undercover agent to the location where he' made the purchase, the prosecutor remarked:

“... One of the undercover agents ... acting pursuant to information that he had received about a certain person, that person being Freeman Palmer, Jr.”

At this point defense counsel objected and moved for a mistrial on the grounds that the prosecution was referring to evidence that would be inadmissible because it was hearsay and referred to other crimes. The objection was overruled and the motion denied. When allowed to continue the prosecutor stated that the agent went to the area pursuant to information he had. The prosecutor never stated what the information was.

The trial judge has wide discretion in controlling the scope and extent of opening statements. State v. McClinton, 399 So.2d 178 (La.1981); State v. Brown, 428 So.2d 438 (La.1983). A conviction will not be set aside for error therein unless substantial rights of the accused are plainly violated. State v. Skinner, 251 La. 300, 204 So.2d 370 (1967); State v. Brown, supra.

So long as a police officer does not testify to the substance and content of information he has received, it is permissible for him to testify that he acted pursuant to an informant’s tip. Such testimony does not violate the hearsay rule nor does it reveal other crimes. See, State v. Kimble, 214 La. 58, 36 So.2d 637 (1948); State v. Green, 244 La. 80, 150 So.2d 571 (1963); State v. Vassel, 285 So.2d 221 (La.1973); State v. Sneed, 328 So.2d 126 (La.1976).

The prosecutor, during opening statement, merely stated that the agent acted pursuant to information he had. The content and substance of that information were not .revealed and the statement would have been admissible if elicited from a witness. Defendant’s rights were not prejudiced.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR # 5

Defendant contends the trial court erred in allowing a narcotics agent, who was qualified as an expert at trial in the area of the street use and abuse of phen-metrazine, to testify about the subject matter of his expertise. Defendant claims the testimony was irrelevant and inflammatory. He does not claim that the court improperly qualified the agent as an expert in the area or that the use and abuse of phenmetrazine is a subject matter not susceptible of expert opinion.

The supreme court has approved the admission of such testimony on a number of occasions. See, State v. Carter, 347 So.2d 236 (La.1977); State v. Stewart, 357 So.2d 1111 (La.1978); State v. Coleman, 406 So.2d 563 (La.1981); State v. Montana, 421 So.2d 895 (La.1982).

It was pointed out in Montana, supra at 899 that:

“The procedures and techniques for the illegal use and distribution of heroin are generally unknown to the public at large and may be explained to the jury to aid them in their search for the truth ...”

There was a sound basis for the admission of the expert’s testimony and it was neither irrelevant nor inflammatory.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR # 8

Defendant contends he was denied the right to confrontation because the trial court limited the scope of his cross-examination of a State’s witness called on rebuttal.

During his case-in-chief defendant called two witnesses who testified they saw the alleged transaction wherein the undercover agent obtained the preludin. These witnesses testified it was not the defendant who sold the preludin pills to the agent. These witnesses stated a man, other than the defendant, sold them to the agent. At the close of defendant’s case, the State called the agent on rebuttal. The State’s questioning on direct was limited to whether the agent was sure it was defendant who sold him the pills and whether he observed the two defense witnesses in the area. Defense counsel attempted to cross-examine the agent on why the transaction was not recorded by the two backup agents. Pursuant to the State’s objection, the trial court ruled that the scope of cross-examination on rebuttal was limited to matters gone into on direct examination during rebuttal. Defendant contends that on rebuttal he was entitled to cross-examine the agent on the entire case.

The control of evidence presented on rebuttal is within the sound discretion of the trial judge whose ruling will not be disturbed except in extreme cases. State v. Hills, 354 So.2d 186 (La.1977); State v. Green, 390 So.2d 1253 (La.1980). Defense counsel cross-examined the agent at length during the State’s case-in-chief as to why the drug transaction was not recorded and he again pursued this line of questioning on recross. Defendant was not denied his right of confrontation and the trial court did not commit reversible error in limiting his cross-examination on rebuttal.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR # 10

Defendant contends the trial court erred in denying his motion for a mistrial made during the State’s closing argument. While attempting to attack the credibility of the defense witnesses the prosecution remarked that they could not remember which night they saw. someone other than defendant sell the pills to the agent. Therefore, they could be talking about two or three different nights. Defense counsel objected and moved for a mistrial on the grounds that the prosecutor’s remarks were impermissible references to other crimes. The motion was denied.

Since the defense witnesses testified that defendant did not sell the pills and in fact committed no crime, the prosecutor’s remark that they could be talking about different nights cannot be construed as a reference to other crimes.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR # 12

Defendant contends his sentence is excessive. He argues that since he only distributed two pills, the nine year sentence, which is only one year less than the maximum he could have received under La.R.S. 40:967 B(3), is nothing more than the needless imposition of pain and suffering.

The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and a sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982); State v. Feeback, 414 So.2d 1229 (La.1982); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Morace, 446 So.2d 1274 (La.App. 2d Cir.1984).

The presentence investigation report prepared at the direction of the trial judge shows that defendant has an extensive history of criminal activity and at the time of the commission of the instant offense he was on probation for a prior felony conviction. From this information the trial judge was justified in concluding that defendant was likely to commit another offense. Furthermore, the distribution of a Schedule II substance is a serious offense. Cf. State v. Tully, supra; State v. Morace, supra. These aggravating factors outweighed the fact that defendant only distributed a small quantity of the drug. We find no manifest abuse of discretion in the sentence imposed.

Defendant also argues the trial judge improperly considered two aggravating factors. The first is, the court considered he may have been involved in other illegal drug transactions in the past. The presentence report shows defendant had a prior arrest on a distribution charge. We cannot say the trial judge manifestly abused his discretion by considering the defendant possibly may have distributed drugs before.

Defendant next contends the court improperly considered a number of arrests listed on the presentence report which did not result in convictions. Prior criminal activity is one of the factors listed in La.C. Cr.P. 894.1 to be considered by the trial judge in selecting a sentence. Prior criminal activity is not limited to convictions. State v. Brown, 410 So.2d 1043 (La.1982); State v. Washington, 414 So.2d 313 (La.1982). Defendant does not contend that the information contained in the report is incorrect.

This assignment of error lacks merit.

Defendant’s conviction and sentence are AFFIRMED.

      . In his assignments of error filed with the trial court defendant alleged twelve errors. He only briefed and argued five. Assignments of error neither briefed nor argued are deemed abandoned and are not considered. State v. Buxton, 416 So.2d 71 (La.1982); State v. Rowe, 416 So.2d 87 (La.1982); State v. White, 446 So.2d 1317 (La.App. 2d Cir.1984).

      . During his direct examination of the agent, the prosecutor asked what led him to be in the area. Defense counsel objected to the question before the agent answered and moved for a mistrial. The objection was overruled and the motion denied. When he was allowed to continue, the prosecutor abandoned this line of questioning. Since the question was never answered defendant was not prejudiced by the mere asking of the question.

      . We note that in Montana, supra the defendant’s conviction was reversed because of certain aspects of the expert’s testimony. The expert gave his opinion on the ultimate issue of fact, the defendant’s guilt. Here, nothing in the expert’s testimony could be construed as having, bearing on defendant’s guilt or innocence.

      . In ruling that the testimony was here relevant, the trial court echoed these sentiments:
      "[The jury is] entitled to know how this thing is used, ... These people are not wise to the ways of the street ..."


author: McCLENDON, Judge Pro Tempore.

text:
    STATE of Louisiana, Appellee, v. A.J. HOOKER, Appellant.
    No. 15781-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 25, 1984.

      DeCelle and Hansen by Malcolm DeCelle, Jr., Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty. by C. Lynn Tubb, Asst. Dist. Atty., Monroe, for appellee.
    Before HALL and SEXTON, JJ„ and McCLENDON, J. Pro Tern.
   McCLENDON, Judge Pro Tempore.

The defendant was convicted by a jury on August 14, 1970 of perjury in violation of LSA-R.S. 14:123 and was sentenced to six years at hard labor. No timely appeal was perfected. However, on application by defendant in proper person for remedial writs, the trial court was ordered by the Louisiana Supreme Court on March 4, 1983 to grant an out-of-time appeal to this court.

We affirm.

On July 16 through the 19th, 1979, the trial of State v. Edward Charles Jackson, No. 38,867, was held in the Fourth District Court, Ouachita Parish, Louisiana. Jackson was charged with two counts of aggravated rape and one count of burglary, all allegedly committed on the night of March 17 and morning of March 18, 1979.

The State’s evidence at that trial consisted of the testimony of not one but a number of witnesses who saw Jackson at various locations in the Monroe area between 9:30 and 11:30 P.M. on the night of March 17, 1979. In several of those places he was seen driving a red pickup truck belonging to a Roberta Fleeman, Jackson’s cousin. This truck was taken from the parking lot of the White Front Bar where Ms. Fleeman tended bar, on the evening of March 17, 1979, and was reported stolen by Ms. Flee-man shortly before one o’clock A.M. on the 18th of March.

Jackson was in the dormitory room of Tammie Powers, victim of the rape, from 12:30 A.M. until about 3:00 A.M., according to Ms. Powers’ testimony.

Monroe police officer Tommy Taylor spotted Jackson driving the stolen pickup truck at about 4:30 A.M. on March 18, 1979. He recognized Jackson, gave chase, and apprehended him with the aid of another officer after Jackson abandoned the truck and fled on foot. Officer Taylor described the truck as orange in color, with black trim rather than red with black trim, but it was the missing pickup of Ms. Flee-man.

Completely contrary to this was the testimony of A.J. Hooker, who was called as a witness for Jackson. He testified that he and Jackson were together gambling from 7:00 P.M. on March 17, 1979, first at Jack Potts’ Checkerboard No. 1 on DeSiard Street in Monroe, until it closed between eleven P.M. and midnight, and then at Checkerboard No. 2 on Louberta where they sat around, danced, and drank beer until Hooker left between one and one-thirty A.M., leaving Jackson still there.

After Jackson was convicted, A.J. Hooker was charged with perjury based upon his testimony outlined above and set out in detail in the bill of information filed in the •case presently before this court on appeal.

Defendant Hooker filed four assignments of error to his conviction and sentence:

No. 1. The State failed to prove that the oath was given properly and, further, that the statement given by the defendant was a material statement such as to justify a conviction for perjury.

No. 2. The sufficiency of the evidence to support a criminal conviction based upon circumstantial evidence and viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could not have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded.

No. 3. The trial court erred in that the sentence given is cruel, unusual and excessive and is, therefore, unconstitutional under the Louisiana Constitution.

No. 4. The trial judge failed to comply with the La. Code of Criminal Procedure, Article 894.1 in stating his reasons for sentencing.

In his brief concerning Assignment of Error No. 1, defense counsel conceded that the motion made for a directed verdict at the conclusion of the State’s evidence was not available to defendant in a jury trial. He stated that the basis of the motion had been that the State had not proved its case in that there was no testimony as to the qualifications of the individual administering the oath to defendant and this was one of the critical elements of proof in a perjury case.

Even had defense counsel chosen a proper vehicle to assert his objection to the sufficiency of the oath administered to his client, his argument would have been without merit.

The record reflects that defendant was sworn before his testimony was given in the Jackson trial. Two court reporters testified that the oath was administered to defendant by Dorothy Dunn, a deputy clerk of court of Ouachita Parish. The portion of the tape whereon the administering of the oath was recorded was filed in evidence and played.-to the jury in this case, and the minutes of the trial court were filed in evidence in further substantiation of these proceedings and the court officials participating.

Defense counsel made no argument in his brief as to the materiality of the statement given by defendant and is presumed to have abandoned that portion of this assignment. State v. Domingue, 298 So.2d 723 (La.1974); State v. Williams, 338 So.2d 672 (La.1976).

Assignment of Error No. 2 strikes at the sufficiency of the evidence upon which defendant’s perjury conviction was obtained. More specifically, it addresses the nature of circumstantial evidence required to sustain.

We find no need to deal with this assignment at great length.

LSA-R.S. 14:123 defines the crime of perjury as follows:

Perjury is the intentional making of a false written or oral statement in, or for use in, a judicial proceeding, or any proceeding before a board or official, wherein such board or official is authorized to take testimony. In order to constitute perjury the false statement must be made under sanction of an oath or an equivalent affirmation, and must relate to matter material to the issue or question in controversy.
It is a necessary element of the offense that the accused knew the statement to be false; but an unqualified statement of that which one does not know or definitely believe to be true is equivalent to a statement of that which he knows to be false.
Whoever commits the crime of perjury shall be punished as follows:
(1) When committed on a trial for any felony, by imprisonment at hard labor for not more than ten years.
(2) In all other cases by a fine of not more than one thousand dollars, or by imprisonment, with or without hard labor, for not more than five years, or both.

We have only to review the testimony of the following witnesses, who testified as to Jackson’s whereabouts on the night of March 17 and the early hours of March 18, 1979, to conclude Jackson could not have been gambling and drinking with A.J. Hooker at Checkerboard No. 1 and No. 2 the entire time between 7:00 P.M. and 1:30 A.M. Roberta Fleeman, Jackson’s cousin, testified Jackson was in her bar at 9:30 or 10:00 P.M. Mathis Lee Newman testified she had known Jackson for a year and that he was at the gas station where she worked around 11:15 P.M., in a red pickup truck she recognized as belonging to Roberta Fleeman. Areola Johnson, who worked with Ms. Newman, also testified Jackson was at the gas station at 11:15 P.M. and asked her to go out with him. Both testified Jackson followed the car they were in when they left work at 11:20 P.M. until their driver eluded him by driving through a housing project. Jackson’s victim testified that Jackson was in her dormitory room from 12:30 to 3:00 A.M.

As pointed out earlier herein, A.J. Hooker testified under oath contrary to all four of these witnesses that defendant Jackson was with him from 7:00 P.M. on March 17, until around 1:30 A.M. the following morning.

Notwithstanding the charge of perjury against him, in his own trial he again took the witness stand and repeated the statements he had made in the Jackson trial almost verbatim and declared they were still true.

The jury in this case did not have to rely upon circumstantial evidence. It had only to choose whom it believed — Roberta Flee-man, Mathis Lee Newman, Areola Johnson and Tammie Powers — or A.J. Hooker. It chose to believe the four witnesses over Hooker, as did the earlier jury in the Jackson trial.

Had defendant attempted to qualify his testimony in some manner such as, for example, suggesting that he may have been mistaken as to the night he was with Jackson, it is possible the jury in this case could have found reasonable doubt as to his guilt of perjury. He was adamant, however, that he and Jackson were together all evening and into the early morning of the day on which he learned Jackson had been arrested and charged with rape.

Applying the sufficiency test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence in this case, viewed in the light most favorable to the prosecution, was sufficient for any rational trier of fact to conclude that the essential elements of the crime were proved beyond a reasonable doubt.

Defense counsel’s argument that defendant Hooker is a person of limited education and did not understand the seriousness of his testimony or that it was true “to the best of his information, knowledge and belief” is just not sustained by the testimony itself. Hooker was given every opportunity to qualify his testimony, but did not.

This second assignment is without merit.

Assignments No. 3 and 4 were combined by defense counsel for argument in his brief, claiming that the trial court failed to comply with C.Cr.P. Art. 894.1 and imposed an excessive sentence.

In sentencing the defendant the trial judge, in compliance with Art. 894.1, stated for the record the following factors: defendant had plead guilty to attempted simple burglary in 1976; he had a simple burglary conviction in addition to several misdemeanor convictions; the seriousness of the offense of perjury and the fact that a lesser sentence would deprecate the seriousness of the crime. Based on these factors he sentenced the defendant to six years at hard labor, to be served consecutively with any other sentence he was serving.

The defendant was subject to a maximum prison term of ten years. Considering this and the trial court’s adequate compliance with Article 894.1, a six year sentence is not excessive.

For these reasons, the conviction and sentence are affirmed.


author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Freddie Lee TAYLOR, Appellant.
    No. 15809-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Sanders & Sanders by Martin S. Sanders, Jr., Winnfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Charles B. Bice, Dist. Atty., Kermit M. Simmons, Asst. Dist. Atty., Winnfield, for appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

The defendant, Freddie Lee Taylor, appeals from his conviction of forcible rape, LSA-R.S. 14:42.1, for which he was sentenced to 15 years at hard labor, the first two years to be without benefit of parole, probation or suspension of sentence.

The state’s evidence establishes that in the early morning hours of July 18, 1982, the defendant, accompanied by William Hayes, went to the home of the victim, with whom he had visited on previous occasions. The victim and a young lady who babysat for the victim’s children earlier in the evening were watching television. The children were asleep. The defendant, who is known as “Bulldog”, appeared to have been drinking, appeared high, and was belligerent and threatening. The babysitter left the house after the defendant choked and slapped her and a window was broken. The defendant continued to threaten the victim, accusing her of having told something to the mother of a girl he was dating. He hit the victim, grabbed her, choked her, and forced her to have sexual intercourse with him at least twice. Hays also participated.

When the defendant got up to go to the bathroom, the victim ran out the front door to a neighbor’s house. The men left and the victim returned home and called a deputy sheriff who came and took her to a doctor. The sheriff testified as to her bruises and the doctor testified as to the bruises and a laceration in the vagina, and to taking specimens for laboratory examination.

Another witness testified to having been given a letter by the defendant while visiting at the jail and the letter which contained statements against the defendant’s interests was introduced into evidence.

The defendant makes five assignments of error:

(1) The court erred in allowing Deputy Greg Davies to sit at the counsel table of the district attorney during the jury selection process as Mr. Davies was neither counsel, a member of the bar, party to the suit, nor aiding in the examination of a witness; his presence was objected to and a motion for mistrial was made and overruled;

(2) The court erred in admitting into evidence certain photographs without proper foundation;

(3) The court erred in admitting into evidence and allowing the jury to view a letter not identified or acknowledged, nor identified as being in the defendant’s handwriting;

(4) The court erred in not allowing defense counsel to question the state’s witness, Deputy Sherman Ford, on cross-examination as to his knowledge of defendant’s violence toward women; and

(5) The court erred in sustaining the state’s objection to defense counsel’s argument referring to the failure of the state to obtain vaginal smears and other evidence from the prosecuting witness which could establish whether the prosecuting witness recently had sexual intercourse.

Assignment of Error No. 1

The defendant asserts that the presence of a deputy sheriff at the counsel table with the district attorney was calculated to prejudice the defendant. However, there is no showing as to how the defendant was prejudiced.

In State v. Tonubbee, 420 So.2d 126 (La.1982), a defendant asserted that the trial court erred in allowing a sheriff to sit at the counsel table during voir dire. The supreme court found no merit to the argument, holding that “this Court has never held that such actions necessarily prejudice a defendant’s trial. The defendant cites no statutory authority for his position, nor does he show any specific prejudice that resulted from the sheriff’s presence at the counsel table.”

This assignment is without merit.

Assignment of Error No. 2

The defendant challenges the admissibility of photographs of the victim on the basis that they were admitted without proper foundation. Generally, photographs are admissible into evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and when they shed light upon the matter before the court. State v. Strickland, 398 So.2d 1062 (La.1981). Sufficiency of identification of a photograph for purposes of admissibility thereof into evidence rests largely within the discretion of the trial judge. State v. Strickland, supra; State v. Cass, 356 So.2d 936 (La.1977).

Deputy Sheriff Greg Davies testified at trial that the photographs of the victim were taken by him at the Winn General Emergency Room on the morning of July 18, 1982, the morning of the rape. The photographs clearly provide probative and relevant evidence of the elements of the crime of forcible rape. The testimony of Deputy Davies provided an adequate foundation for the admissibility of the photographs. The defendant’s assignment of error as to the admissibility of the photographs is clearly without merit.

Assignment of Error No. 3

The defendant asserts that a letter was improperly admitted into evidence. The letter, purporting to have been written by the defendant, was offered into evidence during the testimony of a witness who visited the defendant in jail. The victim had previously testified that she received the letter from the witness and then turned the letter over to Deputy Greg Davies. The witness testified that the defendant gave the letter to her in the jail. She stated that she did not read the letter until she got home and then later called the victim and gave her the letter. The witness stated that when the defendant gave her the letter he said he “had a letter for me.”

When the state offered the letter into evidence, defense counsel objected on the basis of lack of foundation in that no one had made an identification of the writing and there was no statement by the defendant that the writing was his. The trial court overruled defendant’s objection. During cross-examination, defense counsel asked the witness if she had seen the defendant’s writing before, whether she had seen him write anything on this letter, and whether the defendant told her that it was his handwriting. The witness answered “no” to all three questions.

The letter, addressed to the witness and signed “Bulldog”, contains inculpatory statements including the following:

“... Well I decide to drop you a few lines to tell you the truth about what make me do what I did to [the victim] .... So I just crave for revenge and I got it and I am not ashame of nothing I did to her because she deserved it maybe she with stop talking people bussiness so much now....”

No instrument under private signature is admissible in evidence without proof of its genuineness. LSA-R.S. 15:456. The rule of authentication evidencing the genuineness of a particular document has always to be satisfied. The document offered must be authenticated as genuinely that which it purports to be. State v. Martin, 356 So.2d 1370 (La.1978).

“Any document, other than an authentic act, may be proved by any one who saw it written, or by a comparison of hands, or by any one who, from his knowledge of the handwriting of the person alleged to have written the document can testify that the document produced is in the handwriting of said person.” LSA-R.S. 15:460. “Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses in criminal cases. The writings and the evidence of witnesses respecting the writings may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.” LSA-R.S. 15:460.1.

The provisions of LSA-R.S. 15:460 and 460.1 are not mandatory and are not the exclusive manner of proving the genuineness or authenticity of a letter purporting to have been written by a particular person. A document “may” be proved in the manner provided in the statute.

The general rule in most jurisdictions is that a document is admissible if there is evidence sufficient to support a finding that the item in question is what its proponent claims it to be. See Rule 901 of the Federal Rules of Evidence and the Uniform Rules of Evidence.

Authentication by circumstantial evidence is uniformly recognized as permissible. McCormick on Evidence, § 222. See also 7 Wigmore, Evidence §§ 2130, et seq. (Chadbourn rev. 1978). Certain configurations of circumstantial evidence have been so frequently held to authenticate particular types of writings that they have come to be recognized as distinct rules; such as, the ancient documents rule, the reply letter doctrine, and the public records custodian exception. It is apparent that the present situation does not fall within one of the well-recognized rules. However, as stated in McCormick on Evidence, § 222 at page 548:

“It is important to bear in mind that authentication by circumstantial evidence is not limited to situations which fall within one of the recurrent patterns. Rather, proof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing.”

In the present case there is strong circumstantial evidence that the defendant wrote the letter in question. The defendant, while in jail, handed the letter to a witness stating that “he had a letter for her.” The letter is addressed to the witness who identified it and is signed “Bulldog”, the name which the defendant used. Therefore, it is more probable than not that the letter admitted into evidence was a letter written by the defendant. The evidence establishes the genuineness and authenticity of the letter as one from the defendant to the witness and. a proper foundation for its admission into evidence as such.

The defendant also argues in brief that the letter was hearsay and thus inadmissible. However, the defendant did not make an objection before the trial court on the basis of hearsay and did not assign as error that the letter was hearsay. It is well settled that a defendant must make contemporaneous objection and state his reasons therefor to allow the trial judge the opportunity to rule on it and prevent or cure error. State v. Herrod, 412 So.2d 564 (La.1982). The defendant’s objection before the trial court was based solely on the lack of foundation and authentication for the admission of the letter into evidence. A new basis for an objection cannot be raised for the first time on appeal. State v. Ford, 349 So.2d 300 (La.1977). The defendant’s argument that the letter is hearsay is being raised for the first time on appeal and thus cannot be considered. In any event, out-of-court statements against interest made by a defendant are admissible as an exception to the hearsay rule. State v. Edmond, 399 So.2d 187 (La.1981); State v. Godeaux, 378 So.2d 941 (La.1979).

This assignment of error is without merit.

Assignment of Error No. ⅛

The defendant asserts that the trial court erred in sustaining the state’s objection to a question by defense counsel on cross-examination of Deputy Sherman Ford. Defense counsel asked Deputy Ford whether he knew of any other instances of a history of violence by the defendant toward women. The state objected on the basis of irrelevancy.

Relevant evidence is defined under LSA-R.S. 15:441. Whether evidence is relevant is within the discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear abuse of this discretion. State v. Chaney, 423 So.2d 1092 (La.1983); State v. Huizar, 414 So.2d 741 (La.1982). The trial judge has great discretion in determining depth and length of cross-examination of witnesses about details of prior convictions of witnesses and his ruling will not be disturbed absent a showing of abuse of that discretion. State v. Kimble, 407 So.2d 693 (La.1981).

In view of the trial court’s broad discretion in determinations of relevancy and scope of inquiry into prior criminal activity, it does not appear that the trial court under the present circumstances abused that discretion. Rather, it appears that the trial court correctly determined that the line of questioning was irrelevant and probably was prejudicial to the defendant’s interest.

This assignment of error has no merit.

Assignment of Error No. 5

During closing argument, the state objected to defense counsel’s statement:

“If they took a vaginal smear from that lady and he had sexual relations with her, there would be spermatozoa there and they would have somebody to tell you that.”

The objection was that the statement went beyond the evidence and the objection was sustained.

LSA-C.Cr.P. Art. 774 restricts closing arguments in criminal cases to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case. See also State v. Messer, 408 So.2d 1354 (La.1982). Additionally, the trial judge has wide discretion in confining the arguments to the scope of the evidence presented. State v. Chapman, 410 So.2d 689 (La.1982); State v. Lee, 340 So.2d 180 (La.1976).

The statement made by defense counsel was fair comment or argument pertaining to the lack of evidence presented by the state and the objection should not have been sustained. However, after the objection was sustained defense counsel asked if he could “argue about the vaginal smear” and proceeded, without further objection, to pursue the matter:

“My statement is you had a doctor here and he stated that he examined her and he took certain specimens. You haven’t heard what the results of those specimens were. And I suggest to you that the reason you didn’t hear it is because they were negative and they didn’t implicate Freddie Lee Taylor. Now, that is beyond the possibility that they may have implicated somebody else. I am suggesting that to you.... And you are asked to take that testimony against an investigation ... now the investigatory powers of the State is pretty great and if you don’t think they are, you ought to get into some of these other things and see what they have to work with. They have got the crime labs and they have got everything else and you didn’t hear anything about any of that. And if you stick around you may hear about it on William Hayes. I don’t know about that. I don’t represent Mr. Hayes. But you had better believe that if there was anything that indicated that Freddie Lee Taylor had sexual relations with this lady, other than her little statement, that it would be here in front of you and it is not.... There is a complete absence of any evidence under these circumstances to show that Freddie Taylor is guilty of forcible rape.... ”

Although the objection was initially sustained, defense counsel thereafter proceeded to argue the issue and was allowed to fully discuss the lack of evidence before the jury. Any error was harmless and without prejudice to the defendant.

This assignment of error lacks merit.

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

Affirmed.


text:
    STATE of Louisiana, Appellee, v. Floyd SMITH, Appellant.
    No. 15815-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Napper, Waltman, Madden & Rogers by Lee B. Waltman, Ruston, Edward L. Henderson, Grambling, for appellant.
    Dan J. Grady, Asst. Dist. Atty., Farmer-ville, for appellee.
    Before JASPER E. JONES and NORRIS, JJ., and McCLENDON, J. Pro Tern.
   NORRIS, Judge.

Defendant, Floyd Smith, appeals a conviction of aggravated arson in violation of La.R.S. 14:51 and a resulting sentence of nine years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

FACTS

At approximately 9:30 p.m. on October 8, 1981, defendant stood outside of the trailer home of his wife and her three children, two of whom also belonged to defendant, in the rain, appearing drunk and wet and demanding entry. The defendant and his wife, Rosa Smith, had been non judicially separated for approximately six months during which the defendant would often appear at her residence at night. When she would refuse to open the door, he would remain for hours knocking on the doors and walls.

However, on the night in question, the defendant complied with his wife’s request that he leave the premises. Thereafter at approximately 1:30 a.m., she was awakened by noises which were emanating from Under the trailer. When she also smelled smoke, she went to the door, looked out and saw the defendant sitting under the rear end of the mobile home. She told him to come out after which he got up and left staggering up the road in a drunken state. After his departure, Mrs. Smith looked under the trailer and observed smoke. She removed her children from the mobile home and called the fire department. When the firemen arrived, the blaze was apparent under the rear of the trailer.

Defendant was arrested at 2:45 a.m. at his residence which is located approximately one and one-half miles from the mobile home where he was found soaking wet and smelling of alcohol. He was charged with aggravated arson, tried, convicted and sentenced.

ASSIGNMENTS OF ERROR

Defendant assigns the following errors:

(1) The Court erred by overruling the defendant’s objection and allowing the witness Roy Thorpe to testify as an expert witness;
(2) The Court erred by overruling defendant’s objection and allowing State to cross examine the defendant beyond the scope of direct examination in violation of La.R.S. 15:280;
(3) The Court erred by sentencing the defendant to nine (9) years incarceration without benefit of parole or probation. Said sentence was excessive based on the evidénce. Therefore sentence with regard to incarceration should be reduced; and
(4) The Court erred by not ordering an acquittal based on the insufficiency of the evidence.

Only two of these four assignments are briefed on appeal, and this case was submitted for decision without argument. Assignments of error neither briefed nor argued are considered to be abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Williams, 338 So.2d 672 (La.1976). Accordingly, we consider assignments of error numbers 2 and 4 to be abandoned and limit this opinion to those remaining.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, it is argued that the trial court erred in allowing Roy Thorpe to testify as an expert in the field of fire investigation because he does not hold any type of college or advanced degree and he has never been previously qualified as an expert witness in the field of fire investigation or any other field for that matter. Defendant contends that because Mr. Thorpe had never been qualified as an expert prior to giving his testimony in this case that the trial court was required to make a more thorough examination of his qualifications and competency than is usually required.

Mr. Thorpe is a deputy fire marshal who is required to pass a civil service exam and has been so employed for five years. Prior to his obtaining this position, he was with the Monroe Fire Department for two years and with the Ouachita Parish Fire Department for nine years. In connection with this employment history, he has attended several arson seminars and schools through the LSU Fireman Training Academy. He has also attended several seminars and schools in the field of fire investigation. While this witness has appeared in several other district courts as a witness in the field of fire investigation, he has never been qualified as an expert. The first responsibility of his job as a deputy fire marshal is to investigate fires in an attempt to determine the origin and cause of those fires. Mr. Thorpe stated that he had testified as to the origin of fires in cases in the past. The last course involving arson which the witness attended was a thirty hour course at LSU in November prior to this trial.

The trial court likened this witness to the policeman who is qualified to testify as an expert in the field of accident investigation and accepted him as an expert in the field of fire investigation.

It is a well settled rule that a trial judge is vested with wide discretion in determining the competence of an expert witness; competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge; and his ruling will not be disturbed in the absence of manifest error. State v. Stucke, 419 So.2d 939 (La.1982); State v. Lewis, 351 So.2d 1193 (La.1977).

La.R.S. 15:466 provides the test for the qualification of an expert witness [State v. Lewis, 351 So.2d 1193 (La.1977)]:

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

There is no rule of law, statutory or jurisprudential, which requires that different standards be placed on those witnesses who seek to be qualified as an expert in a field for the first time. Rather, the same standard of competency applies to all and a trial judge is only required to satisfy himself that the witness’ competency has been established prior to qualifying him as an expert. Accordingly, defendant’s contention that a more thorough than usual examination is required to establish competence in this case is meritless. See State v. Chatman, 337 So.2d 1106 (La.1976).

Likewise, defendant’s contention that this witness’ lack of a college or an advanced degree should bar his qualification is without merit. The Louisiana expert testimony statute follows the commentators in recognizing that not only special training but also experience can qualify an individual as an expert on certain matters. State v. Short, 368 So.2d 1078 (La.1979).

In light of the facts related herein concerning the witness’ training and work experience, he was sufficiently qualified to testify as an expert on the subject for which he was presented. There has been no showing made that the trial judge abused his discretion in accepting the witness as a qualified expert in the field of fire investigation.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Finally, defendant argues that the sentence of nine years at hard labor without probation, parole or suspension of sentence is excessive.

The penalty provision of La.R.S. 14:51 provides:

Whoever commits the crime of aggravated arson shall be imprisoned at hard labor for not less than six nor more than twenty years, and shall be fined not more than twenty-five thousand dollars. Two years of such imprisonment at hard labor shall be without benefit of parole, probation, or suspension of sentence.

The Supreme Court in State v. Boowell, 406 So.2d 213 (La.1981) was called upon to interpret a similar provision in La.R.S. 14:62.2 which provided:

Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.

In Boowell, the defendant complained that a sentence of three years at hard labor without benefit of parole, probation or suspension of sentence was illegal because it was not authorized by the applicable statute which required only that the minimum sentence include the ineligibility provision. The Supreme Court concluded that as written, the sentencing provision of La.R.S. 14:62.2 is ambiguous and that either the interpretation of the trial court or that of defense counsel could be considered to be reasonable. Therefore, the court applied the principle of statutory construction that penal provisions are to be strictly construed in favor of a defendant, who must be afforded the benefit of genuine ambiguity. Accordingly, the sentence was held to be illegal and the case was remanded for re-sentencing.

In the instant case, the penalty provision provides that “[t]wo years of such imprisonment at hard labor shall be without benefit of parole, probation or suspension of sentence.” It is our opinion that the statute means exactly what it says; that is, that only two years of any sentence imposed shall be without benefit of parole, probation or suspension of sentence. [Compare the language in La.R.S. 14:42.1 which provides that “[a]t least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.”] Even were we to find that this provision was not clear and was ambiguous, then under the rationale of Boowell, we would still be compelled to reach the same result because its ambiguity should be construed in favor of the defendant who should be afforded the benefit of any genuine ambiguity. See also State v. Conley, 411 So.2d 448 (La.1982).

Accordingly, we find that the sentence imposed by the trial court of nine years at hard labor without benefit of parole, probation or suspension of sentence is illegal. An illegal sentence is an error patent which may be recognized by this court ex proprio motu. La.C.Cr.P. Art. 920(2); State v. Jones, 341 So.2d 3 (La.1976); State v. Boowell, supra. An illegal sentence may be vacated and corrected at any time. La.C.Cr.P. Art. 882; State v. Boowell, supra; State v. Patterson, 384 So.2d 790 (La.1980).

Accordingly, while affirming the defendant’s conviction, we vacate his sentence and remand to the district court for re-sentencing in proceedings consistent with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.


text:
    STATE of Louisiana, Appellee, v. Raymond GREEN, Appellant.
    No. 15852-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Kidd, Jones & Kidd by Paul Henry Kidd, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, T.J. Adkins, Dist. Atty., Dan G. Grady, Asst. Dist. Atty., Ruston, for appel-lee.
    Before PRICE, HALL and NORRIS, JJ.
   HALL, Judge.

The defendant, Raymond Green, was charged by grand jury indictment with two counts of distribution of a controlled dangerous substance in violation of LSA-R.S. 40:966 in that he did knowingly and intentionally distribute marijuana on September 15, 1981 and September 30, 1981. After trial before a 12-person jury, defendant was found guilty of possession of marijuana in response to the first count and guilty of distribution of marijuana as charged in response to the second count. He was sentenced to six months imprisonment in the parish jail on the possession conviction and 10 years imprisonment at hard labor on the distribution conviction, the sentences to run consecutively. Defendant appealed and assigns nine errors. Finding that none of the errors assigned have merit, we affirm the convictions and sentences.

In the fall of 1981 the Louisiana State Police assigned one of their undercover drug investigators, Charles Michael Epps, to work in Lincoln Parish. The investigating officer met the defendant through a police informant, John Robeaux. On September 15, 1981 Epps went to the defendant’s home and purchased a fourth of a pound of marijuana at a cost of $80. On September 29, 1981, Epps sought to purchase more marijuana from the defendant but was told to return the following day. On September 80 the officer returned and purchased one kilogram of marijuana from the defendant for $700. On both occasions the agent was equipped with a body microphone and a recording was successfully made of the second of the two transactions. The agent was accompanied by the informant on both occasions.

Assignment of Error No. 1

By this assignment the defendant contends that the trial court erred in allowing the state to exercise its peremptory challenges in a racially discriminatory manner. The defendant filed a motion to quash the petit jury venire based on the state’s exercise of 9 of its 10 peremptory challenges to exclude 9 prospective black jurors. The trial court denied the motion, finding that there was no historical or systematic pattern of discriminatory use of peremptory challenges in Lincoln Parish. The defendant contends that no pattern of discriminatory use of peremptory challenges could be established because no evidentiary hearing was conducted.

As pointed out by the state, three of the jurors selected for service on the jury were black and were not challenged by the state. The defendant is white. When the motion to quash was argued the defendant did not offer any evidence or request an evidentia-ry hearing at that time in order to make a showing of a historical pattern of discriminatory use of peremptory challenges by the state.

An accused is not denied equal protection when the state, through the use of peremptory challenges, prevents blacks from serving on the jury unless the defendant can prove systematic exclusion over a period of time. Where a defendant is able to establish a prima facie case of such systematic exclusion, the burden shifts to the state to show that no discrimination was practiced. Defendant must not be denied the opportunity to make his prima facie showing. State v. Square, 433 So.2d 104 (La.1983); State v. Perry, 420 So.2d 139 (La.1982); State v. Bias, 354 So.2d 1330 (La.1978); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

In this case there was no showing of a systematic exclusion of blacks from juries over a period of time, nor is there any indication that the defendant sought the opportunity or was prepared to make such a prima facie showing. Accordingly, the trial court was correct in denying defendant’s motion to quash and this assignment of error lacks merit.

Assignment of Error No. 2

By this assignment the defendant contends that the trial court erred in allowing the state to introduce into evidence certain oral statements purporting to be res gestae which were not properly disclosed to defendant prior to trial in response to discovery under LSA-C.Cr.P. Art. 716. In response to the defendant’s discovery motion the state responded that it would offer res gestae statements. While on the stand Officer Epps testified as to statements made by the defendant on the evening prior to the second drug purchase. According to the testimony of the officer he went to the defendant’s residence to purchase marijuana, the defendant made inquiries by phone to obtain the substance, and the defendant then told the officer to come back the following day.

What forms any part of the res gestae is always admissible in evidence. Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive, and spontaneous words and acts of the participants. To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in connection with it one continuous transaction. LSA-R.S. 15:447 and 448.

The negotiations carried on by the undercover officer with the defendant on the evening prior to the actual sale, and the statements made in the course of such negotiations, were part of one continuous transaction and constituted part of the res gestae. The state disclosed that res gestae statements would be offered into evidence in response to defendant’s discovery motion, and defendant took no steps to require the state to be more specific in its disclosure. As part of the res gestae the statements constituted admissible evidence and were within the scope of the state’s disclosure.

This assignment of error lacks merit.

Assignment of Error No. 3

By this assignment the defendant contends that the trial court erred when it refused to compel the state to introduce into evidence the marijuana alleged to have been purchased in connection with the count No. 2 transaction.

During the testimony of Officer Epps a lab report was introduced purporting to identify the substance purchased from the defendant as marijuana. The defendant objected on the grounds that the state, by failing to offer into evidence the marijuana itself, had failed to establish a chain of custody showing that the marijuana tested by the crime lab was the same marijuana purchased by the officer from the defendant. The trial court correctly overruled the objection, noting that the chain of custody was properly established by the testimony of the officer and the information shown on the lab report which was not disputed.

On appeal the defendant argues that the marijuana itself is the best evidence of the nature of the substance obtained by the officer from the defendant and that under LSA-R.S. 15:436 the best evidence must be produced. The best evidence objection was not made in the trial court and cannot properly be raised on appeal. In any event, however, absent a showing of some prejudice to the defendant, the best evidence rule will not be applied unreasonably. State v. Moore, 419 So.2d 963 (La.1982). The defendant has failed to show how he was prejudiced by the introduction of only the lab report and not the physical evidence itself. No reversible error is shown. This assignment lacks merit.

Assignments of Error Nos. 4 a>nd 9

By these assignments the defendant contends that the trial court erred when it allowed the state to excuse from subpoena a key and material witness without the knowledge and consent of the defense, thus causing the absence and unavailability of a material witness, and that the court further erred when it failed to instruct the jury of the legal presumption that evidence under the control of a party and not produced by him was not produced because it would not have aided him.

John Robeaux, the informant who was present during both transactions, was subpoenaed as a witness by the state. Prior to trial the prosecutor released the witness from the subpoena. After the jury had been selected and sworn, when defense counsel learned that the witness had been released, counsel had an instanter subpoena issued but it was never served. When requesting the subpoena defendant counsel reserved his rights to object to the release of the witness depending on whether or not the subpoena was served. However, the record reveals that defense counsel did not request a recess or any other relief prior to the conclusion of the one-day trial.

In a motion for new trial the defendant raised the issue of the witness’s release from the subpoena and caused another subpoena to be issued for him in connection with the hearing on the new trial motion. This subpoena was not served and a continuance of the hearing was granted. Defense counsel did not request another subpoena and when the new trial motion again came on for hearing it was held without the appearance of Robeaux.

The record discloses that the defense did not know the whereabouts of the witness but that the state was able to contact him and serve him with subpoenas in this and other trials through a deputy sheriff who apparently maintained some contact with Robeaux.

The defendant contends that he was denied a fair trial due to the absence of this material witness and urges that his unavailability is attributable to unilateral action on the part of the prosecution.

The right of a defendant to compulsory process for obtaining witnesses in his behalf is embodied in both the federal and state constitutions as well as the statutory law of this state. U.S. Constitution Amendment 6; La. Const. Art. 1, § 16; LSA-C.Cr.P. Art. 731. The right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Latin, 412 So.2d 1357 (La.1982).

It has been held that an accused cannot claim that he was denied the right to compulsory process for obtaining witnesses where the defense did not seek to subpoena the witness. Beach v. Blackburn, 631 F.2d 1168 (U.S. 5th Cir.1980). Here, the defense did not subpoena this witness until after trial had begun. No specific relief was sought other than to request the issuance of a subpoena, which was done. There is no showing that the state prevented service of the subpoena or failed to attempt service thereof.

In State v. Hogan, 372 So.2d 1211 (La.1979) and 404 So.2d 488 (La.1981), a drug conviction was reversed on the basis that the defendant was unable to obtain the police informant as a witness in order to support a defense of entrapment. In that case the court found that the defendant had exercised due diligence in trying to obtain the witness’s presence and except for the actions of the state, the witness would have appeared. In the instant case the failure of the defense to issue a subpoena for Robeaux’ presence prior to trial and the failure to issue a second subpoena after being granted a continuance at the first hearing on the motion for new trial cannot be said to be an exercise of due diligence. There was no showing that the witness was made unavailable due to the suggestion, procurement, or negligence of the state and, therefore, the state’s actions did not contribute substantially to the witness’s failure to appear. Furthermore, particularly as it relates to the motion for new trial, there has been no showing as to what testimony the witness might give which would be favorable to the defendant and which would indicate the possibility of a different result if the witness were to testify. We find no prejudicial error related to the absence of the witness Robeaux.

Defendant contends that the action of the state in regard to this witness was accentuated by the later failure of the trial court to give a proper instruction to the jury in accordance with LSA-R.S. 15:432. The defense requested the following instruction: “A presumption arises that evidence under the control of a party and not produced by him was not produced because it would not have aided him.” The trial court gave that instruction but added “However, this presumption does not arise if the witnesses are equally available to both the state and the defense for then the evidence is not under the control of either party.” The trial court noted during argument over the instruction that whether the witness was under the state’s control, or the defendant’s control, or joint control, or under the control of neither, will be a question for the jury to decide.

In State v. Simms, 381 So.2d 472 (La.1980), it was held that the presumption does not arise if the witness not presented is equally available to both the state and the defendant. Accordingly, the instruction as given was a fair statement of the applicable law. The jury was properly charged with regard to the absence of a witness and what presumptions or inferences could be drawn under what circumstances. It then became a matter for the jury to determine in light of the evidence and the proper charge as given.

These assignments of error are without merit.

Assignments of Error Nos. 5, 7, and 8

These assignments of error deal with the alleged failure on the part of the state to make disclosure of information as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the defense complains of the failure to disclose the existence of a taped conversation made on the date of one of the drug transactions which showed the presence of another party and to disclose information about alleged misconduct on the part of the confidential informant, John Robeaux.

The due process clause of the Fourteenth Amendment of the United States Constitution requires the disclosure upon request of evidence which is favorable to the accused where the evidence is material to guilt or to punishment. Brady v. Maryland, supra. This rule has been expanded to include evidence which impeaches the testimony of a witness, where the reliability or credibility of the witness may be determinative of guilt or innocence. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

The defense knew of the existence of the tape and knew of the existence of the witness, Robeaux. Robeaux did not testify and, therefore, any evidence that would tend to impeach him, if such existed, would not be relevant or material. Whether or not the tape contained any information that was favorable to the defense is at best speculative and was not such that the state could be expected to draw a conclusion that the evidence may or may not be considered favorable to the defense. Since it is necessary for the defense to establish the evidence’s favorable character and its materiality as well as showing that it was suppressed by the prosecution, it does not appear that in this instance a violation of the Brady rule occurred. Monroe v. Blackburn, 607 F.2d 148, rehearing denied 610 F.2d 818, cert. denied 446 U.S. 957, 100 S.Ct. 2929, 64 L.Ed.2d 816 (U.S. 5th Cir. 1979).

These assignments lack merit.

Assignment of Error No. 6

The defendant urges that the trial court erred when it allowed Officer Joey Davidson to offer testimony as to his identification of the voice of the defendant as it appeared on certain tape recordings, when the identification was not predicated upon his previous knowledge of the defendant or the sound of his voice. The testifying officer monitored the receiving device involved in the taped surveillance of the defendant and identified the voice of the defendant on the tape based on his knowledge of the defendant’s voice gained from conversations with the defendant after he was arrested.

Voice identification is a problem of authentication rather than a problem of a lay witness’s competency to identify a voice. See State v. Hennigan, 404 So.2d 222 (La.1981). Sufficient authentication can be established by circumstantial evidence pointing to the unseen speaker’s identity or by testimony of a witness familiar with the speaker’s voice. Authentication based on familiarity with the speaker’s voice can be gained subsequent to the communication. McCormick on Evidence, § 226, (2d Ed.1972).

Here, the officer heard the voices of the persons involved in the drug transaction while the tape was being recorded. He later spoke on several occasions to the defendant during his term of incarceration while he was awaiting trial. These circumstances afforded a sufficient foundation for the officer to testify from his own knowledge and familiarity with the defendant’s voice that the voice on the tape was that of the defendant.

This assignment of error lacks merit.

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

Affirmed.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Jimmy Lee ROBERSON, Appellant.
    No. 15,858-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Rehearing Denied May 2, 1984.
    Emmons & Stokes by Douglas L. Stokes, Jonesboro, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, John C. Blake, Dist. Atty., Walter E. May, Jr., Asst. Dist. Atty., Jonesboro, for appellee.
    Before MARVIN, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The defendant, Jimmy Lee Roberson, appeals his conviction for manslaughter, LSA-R.S. 14:31, from the Second Judicial District Court and the subsequent sentence of nine years at hard labor for that offense. The defendant has asserted two assignments of error.

Assignment No. 1 Right to Confrontation

In pursuing this assignment, the defendant designated only that portion of the record containing the testimony of the witness, Barry Wayne Cooper, witness for the prosecution.

The defendant asserts that he shot the victim, Carl Cage, because he feared for his own life and for those of his family. The defendant also asserts that the night before the shooting took place, that Carl Cage had pointed a rifle at the defendant and threatened to kill him but was persuaded not to do so by Barry Wayne Cooper. However, at trial, Cooper admitted that he had seen Carl Cage and the defendant the night before the shooting but denied that Cage had pointed a rifle at the defendant or that Cage had threatened to kill the defendant.

Defense counsel attempted to question Cooper on cross-examination with respect to charges pending against him for his involvement in a fatal traffic accident. However, that line of questioning was objected to by the State, citing LSA-R.S. 15:495. The trial court sustained the objection.

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. This right is secured for defendants in state as well as federal criminal proceedings through the Fourteenth Amendment to the United States Constitution. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Confrontation Clause of the Louisiana Constitution likewise affords each accused the right to confront and cross-examine the witnesses against him. La. Const.1974, Art. 1, § 16.

The defendant relies heavily on State v. Brady, 381 So.2d 819 (La.1980). In that prosecution for armed robbery, the State’s only witness, the victim of the offense, was asked on cross-examination by the defense about a previous arrest for intentionally carrying a concealed weapon approximately one year earlier. The question was posed in the context of whether the witness had made a deal with the district attorney in return for the witness’s testimony in that case. The trial court sustained the State’s objection' on the basis of LSA-R.S. 15:495.

In a bench conference prior to the ruling, defense counsel stated for the record that he was objecting to the exclusion of the testimony because the witness had been charged with carrying a concealed weapon more than a year earlier and had forfeited bond. Counsel asserted that the state was delaying action in that case until the trial of the defendant. Defense counsel furthermore asked that an objection be noted based on LSA-R.S. 15:492, relating to the questioning of a witness as to interest or bias in a particular case.

In reversing, the Supreme Court stated: “The trial judge’s ruling denied defendant his statutory right to question a witness concerning his bias or interest in the case and violated defendant’s constitutional right of cross-examination (confrontation), there having been no valid statutory or other reason to curtail such cross-examination.” Brady, supra, at 821.

However, we find a significant distinction between the circumstances of Brady and the instant case. The case at bar is more closely akin to State v. Ware, 345 So.2d 33 (La.1977). In Ware, as in the instant case, the trial judge refused to permit the defense to impeach the State’s witness by an inquiry about previous arrests. Upon appeal, the defense contended that LSA-R.S. 14:495 was an unconstitutional deprivation of the right of confrontation guaranteed by the United States and Louisiana Constitutions. The Supreme Court stated:

“The right to confrontation, while a significant constitutional right, is not so unlimited as to require permitting a defendant on cross-examination of state witnesses to make any and all inquiries of whatever character. R.S. 15:495, applicable with respect to the cross-examination of defendant as well as witnesses, is not an unreasonable limitation. R.S. 15:495 is not constitutionally impermissible in derogation of the confrontation clauses of the federal and/or state constitutions.” Ware, swpra, at 36.

Similarly, in the instant case, the record reveals that defense counsel stated to the court that the question was asked for the purpose of testing the witness’s “credibility.” No allegations of bias or interest were asserted. Considering that the arrest at issue was pending in another judicial district and with another district attorney’s office, none seems likely.

Brady and Ware are not inconsistent and may be easily read together. A witness’s credibility may not be tested on the basis of previous arrests. However, if a potential for bias or interest exists as a result of a specific arrest, then R.S. 14:495 with respect to credibility must yield to those of LSA-R.S. 15:492 regarding bias or interest. In the instant case, no reasonable assertions of bias or credibility were made to the trial court and none are disclosed by the record. Thus, LSA-R.S. 15:495 and State v. Ware, supra are controlling. This assignment lacks merit.

Assignment No. 2 Excessive Sentence

Here the defendant contends that the sentence of nine years at hard labor imposed on a first offender with a wife and two young children is excessive.

As we have earlier indicated, we have only been favored with that portion of the transcript relating to the attempted impeachment of the witness Cooper. We have only the presentence report by which to gauge the propriety of the sentence. That report indicates that the victim was shot while seated in his car in front of the defendant’s residence. He was there to see the sister of the defendant. He refused to leave when told to do so by another member of the household. When he refused to leave upon being told to do so by the defendant, the defendant shot him after— as the Roberson family witnesses reported — the victim “reached down.” No weapon was found by police.

The PSI also indicates that the defendant is one of ten children whose family was forced to depend on welfare subsequent to the defendant’s father’s death when defendant was age 5. The defendant was reported to be something of a truant who dropped out of school during the eighth grade. He was also reported to be somewhat of a bully who was more of a nuisance than a severe discipline problem. He is a manual laborer whose was apparently unemployed at the time of this offense.

Based on the circumstances shown to us, the defendant’s social history, the manner in which the offense was committed as revealed by the PSI, and the defendant’s familial circumstances, we are unable to say that this sentence of nine years for the manslaughter of this victim is an abuse of discretion. This assignment lacks merit.

Both the sentence and conviction are affirmed.

AFFIRMED.

      . LSA-R.S. 15:495 provides as follows:
      "§ 495. Impeachment by evidence of conviction; condition precedent to proof by others; prohibition against cross-examination as to indictment or arrest
      Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein."

      . LSA-R.S. 15:492 provides as follows:
      "§ 492. Bias, interest, or corruption of witness; questions concerning particular acts When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such, bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.”