author: KLEES, Judge.

text:
    STATE of Louisiana v. Betty Woodcock KOLL.
    No. KA-2401.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1985.
    Rehearing Denied Feb. 26, 1985.
    Writ Denied May 3, 1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Julia S. Coley, Asst. Dist. Attys., New Orleans, for plaintiff-appellee State of La.
    Joseph Meyer, Jr., New Orleans, for defendant-appellant Betty Woodcock Koll.
    Before KLEES, CIACCIO and WARD, JJ.
   KLEES, Judge.

This is an appeal by Betty Woodcock Koll from a conviction of Conspiracy to Commit First Degree Murder in violation of LSA-R.S. 14:26 and 14:30. The issues presented are 1) whether the trial judge erred in denying the Motion to Quash pursuant to LSA-C.Cr.P. Art. 578 relative to the time within which to commence a trial and 2) whether the trial judge erred in permitting the introduction of hearsay testimony of an alleged co-conspirator under LSA-R.S. 15:455. We find that the trial judge did not err in denying the Motion to Quash but he did err in permitting the introduction of the hearsay testimony when it was not permitted to be introduced by a prior ruling on that issue. We remand the case for a new trial.

A police investigation led to the grand jury indictment of Betty Koll and her brother, George Woodcock, on March 25, 1980, for the First Degree Murder of Armand Koll, Betty Koll’s estranged husband. The state theorized that Armand Koll had been murdered by George Woodcock and his friend, Joseph Paul Fallon, upon the instructions and direction of Betty Koll for the insurance money. Fallon was given immunity to testify against George Woodcock and Betty Koll. George Woodcock was subsequently found guilty of First Degree Murder and was sentenced to life imprisonment.

On September 30,1982, Betty Koll filed a Motion in Limine to limit the testimony of Fallon so as not to include his hearsay testimony. On December 15, 1982, the trial court denied the motion. The State amended the Bill of Information to charge Betty Koll with Conspiracy to Commit First Degree Murder in violation of LSA-R.S. 14:26 and 14:30 on May 3,1983.

Prior to the commencement of trial, on August 23, 1983, a hearing was held pursuant to LSA-R.S. 15:455 as a predicate to permit the introduction into evidence of hearsay testimony of an alleged co-conspirator. After hearing the State’s evidence, the trial judge ruled that the State had not made a prima facie showing of conspiracy, and therefore would not allow the hearsay testimony to be admitted into evidence.

During the trial, defense counsel, upon cross-examining Fallon about his immunity agreement with the State, showed Fallon the immunity agreement and read the first sentence of the agreement aloud. This first sentence states:

The above agreement is based in our understanding that Mr. Fallon has extensive and first-hand knowledge of the involvement of George Woodcock, white male, age 39, and Betty Koll, white female, wife of the murder victim, in the murder of Armand Koll.

Fallon indicated that he did not tell the State anything at all and that his lawyer negotiated the agreement with the State. On re-direct examination, the State asked Fallon what information he had on Betty Koll. Defense counsel objected on the basis that the information was hearsay, which objection was overruled by the trial court. Fallon then went on to testify that George told him Betty Koll would pay them out of the insurance proceeds for the murder and that on the night of the murder, when George came out of Betty Roll's house, he told Fallon that the murder was still on. Defense counsel moved for a mistrial which was denied. Betty Koll was found guilty as charged by a twelve-man jury. On October 4, 1983, defense counsel filed a Motion for New Trial and a Motion for Post Verdict Judgment of Acquittal, which were both denied by the trial court. The trial judge then immediately sentenced Betty Koll to 20 years at hard labor with credit for time served.

Errors Patent

A review of the record fails to indicate that Betty Koll was present at the arraignment or that she was even arraigned on either charge. The record also shows that the trial judge failed to wait 24 hours after denial of her motion for new trial before imposing sentence. The Louisiana Supreme Court has held that a patent error is harmless unless prejudice is shown. State v. Charles, 450 So.2d 1287 (La.1984); State v. Brogdon, .426 So.2d 158 (La.1983). Even though there is no minute entry of an arraignment, Betty Koll did plead not guilty and eventually was tried. There is no prejudice in a not guilty plea and Betty Koll has alleged none.

As to the trial court’s failure to delay imposition of the sentence for a period of at least 24 hours after denial of post-trial motions, the Louisiana Supreme Court, in State v. White, 404 So.2d 1202 (La.1981), has held that where there has been no objection raised regarding the sentence imposed and no showing or suggestion that the defendant was prejudiced by the failure to observe the delay, the case need not be remanded for reimposition of a sentence. In order to determine prejudice the Court looked to the defendant’s opportunity to raise his complaint regarding sufficiency of the evidence in the new trial motion; the time lapse between the defendant’s conviction and the date on which sentence was finally imposed; and whether the defendant’s sentence was hurriedly imposed without due consideration. In the present case, Betty Koll had full opportunity to raise her complaint regarding the sufficiency of the evidence in her motion for new trial. The time lapse between her conviction, August 25, 1983, and the date of sentencing, October 4, 1983, was substantial; and there were no indications that the sentence was hurriedly imposed without due considerations even though the judge refused to order a presentence investigation.

Assignments of Error

Betty Koll first contends that the trial judge erred in denying her Motion to Quash pursuant to LSA-C.Cr.P. Article 578 which provides that trial shall be commenced within three years from the date of institution of the prosecution of a capital case and two years from the date of institution of the prosecution of other felony cases. In the present case, Koll was initially charged with first degree murder on March 25, 1980. Therefore, the state had three years from that .date in which to commence trial. However, the State amended the indictment or information on May 3, 1983 to charge Koll with conspiracy to commit first degree murder, a felony with a two year period in which to commence trial.

As to Betty Roll's contention that the three year time period for capital cases prescribed, we must refer to LSA-C.Cr.P. Article 580. This Article provides:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

In this case, Betty Koll filed several motions (bills of particulars, prayer for oyer, motion for production of exculpatory evidence, motion to sever, etc.) on May 16, 1980. These motions were taken under advisement on June 20, 1980 until July 10, 1980. However, on July 10 the court transferred the case for hearings on the motions and there is no minute entry of the ruling. The State filed amended answers to some of these motions as late as December 10, 1981. The record also shows that on September 30, 1982, Betty Koll filed a Motion in Limine which was heard and ruled upon on December 15, 1982. Because LSA-C. Cr.P. Article 580 allows the State no less than one year after the ruling to commence the trial, since Betty Roll’s trial commenced August 23, 1983, within that year period, this assignment is without merit.

In her second assignment of error, Betty Koll contends that the trial court erred in permitting the introduction of the hearsay testimony of an alleged co-conspirator under LSA-R.S. 15:455. LSA-R.S. 15:455 provides for the admission of declarations and acts of co-conspirators said or done in furtherance of the common enterprise as long as the State establishes a prima facie case of conspiracy. In State v. Dupree, 377 So.2d 328 at 330 (La.1979), the Louisiana Supreme Court explained these requirements:

Before a co-conspirator’s declaration may be introduced under this exception, a prima facie case of conspiracy must have been established and it must be shown that the declaration was made in furtherance of the common enterprise and during its continuation, (citations omitted) Introduction of a hearsay declaration without fulfillment of these requisites violates both the statute which prohibits the admission of hearsay evidence not falling within any exception to the rule, La.R.S. 15:434, and the constitutional guarantee of an accused’s right to confront and cross-examine the witnesses against him. (citations omitted)

The crime of conspiracy is defined in LSA-R.S. 14:26 as the agreement or combination of two or more persons for the specific purpose of committing any crime, provided however, that-such an agreement or combination shall not amount to a criminal conspiracy unless, in addition to such combination or agreement, one or more of the parties does an act in furtherance of the object of the agreement or combination. The Louisiana Supreme Court has held that a prima facie case of conspiracy is presented when the State introduces evidence which, if unrebutted, would be sufficient to establish the fact of conspiracy. State v. Brown, 398 So.2d 1381 (La.1981); State v. Dupree, supra. For purposes of LSA-R.S. 15:455 the State cannot rely on the co-conspirator’s hearsay declaration itself to supply the prima facie case of conspiracy. State v. Meredith, 403 So.2d 712 (La.1981); State v. Millet, 356 So.2d 1380 (La.1978).

The trial judge initially ruled that the State had failed to make a prima facie showing of conspiracy and refused to allow the introduction of the hearsay implicating Betty Koll. However, during trial, when defense counsel questioned Fallon about his immunity agreement with the State and read the first sentence into the record, the State claimed that the defendant “opened the door” to permit its re-direct of Fallon to elicit the hearsay testimony. Absent a pri-ma facie showing of conspiracy and independent of the hearsay declaration under LSA-R.S. 14:455, the “door can not be opened” to elicit such testimony. To allow the declaration without the prima facie showing of conspiracy, “hearsay would lift itself by its own bootstraps to the level of competent evidence.” Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); State v. Carter, 326 So.2d 848 (La.1975).

However, since the trial judge ruled prior to trial that the State had failed to make a prima facie case of conspiracy, it was prejudicial error to allow the hearsay statements to be admitted into evidence without a proper determination by the trial judge that a prima facie case of conspiracy had now been made by the State. Further, the failure of the trial judge to make such a determination, deprived the defendant of the opportunities to seek appropriate relief from this adverse ruling.

The Louisiana Supreme Court in State v. Banks, 439 So.2d 407, 409 (La.1983) has stated that:

The appropriate standard of review to be applied in determining the effect of the improper admission of evidence is whether “ ‘the court [can] ... declare a belief that [the error] was harmless beyond a reasonable doubt.’ ” State v. Gibson, 391 So.2d 421, 428 (La.1980), quoting and adopting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The court must be able to determine, beyond a reasonable doubt, that the improperly admitted hearsay did not contribute to the verdict.

After a thorough examination of the entire record we conclude that, in this case, as in Banks, supra, it cannot say, beyond a reasonable doubt, that the improperly admitted hearsay did not contribute to the verdict.

Accordingly, the defendant’s conviction and sentence are reversed, and the case is remanded to the district court for a new trial.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Toni JOHNSON.
    No. KA-1969.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1985.

      Loyola Law School Clinic, Jack M. Capella, Student Practitioner, Calvin Johnson and David Girard, Supervising Attys., New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, and Julia S. Coley, Asst. Dist. Attys., New Orleans, for appellee.
    Before KLEES, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

Defendant, Toni H. Johnson, was charged as a codefendant, with James E. Smith, with the crime of possession of a controlled dangerous substance (pentazo-cine). R.S. 40:967. She was tried by a jury and found guilty as charged. She was sentenced to serve two (2) years in the Department of Corrections, the sentence was suspended and she was placed on two (2) years active probation. Defendant appeals, relying upon two (2) assignments of error. We affirm the defendant’s conviction and sentence.

On September 16, 1982 at approximately 8:15 p.m., Lieutenant Lionel Ware of the Orleans Criminal Sheriff’s Office was called upon to execute an arrest warrant at 1505 Carondelet Street, on a subject known only as “Vance.” Ware arrived at the residence and observed that the door was padlocked but light was emanating from a hole in the door from which a door knob had been removed. Through the hole the sheriff observed a couple in the second room. He saw the male inside attempting to remove something from a bottle. Ware knocked on the door and got no response. He thereafter summoned the New Orleans Police.

New Orleans Police Officers James Pollard and David Desmesine arrived at the scene. Officer Pollard looked through the door hole and observed James Smith and Toni Johnson as they were injecting something into their arms. Officer Pollard knocked on the door and Toni Johnson came to the door. When Pollard announced that he was a policeman, Johnson turned off the lights and ran toward the rear of the house. Smith ran out of the house but was apprehended as he attempted to flee by jumping over a fence located at the rear of the property. He was frisked and three black capsules were discovered. The capsules were later found to be biphetamine, a controlled dangerous substance. Toni Johnson was apprehended inside the residence. Drug paraphenalia was seized by the police officers from the top of a dressér and bed. In addition, five orange tablets and five blue tablets, later identified as talwin-pentazocine, were seized from the top of the dresser which was located in the room where the officers had observed the apparent illegal activities of the two subjects. The subjects were then placed under arrest.

Toni Johnson relies upon two assignments of error in seeking to have her conviction reversed.

Assignment of Error No. 1

Defendant argues, by this assignment of error, that the trial court erred when it denied her motion to suppress the evidence seized. She reasons that exigent circumstances, required for entry without a search warrant, did not exist and the arresting officers violated her constitutionally protected right of privacy when they observed her activity inside the house by looking through a hole in the door. In the landmark case of Payton v. New York, the U.S. Supreme Court set forth the standard to be utilized in a warrantless arrest of a subject inside a home. 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). That is, absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. Payton v. New York, supra. Probable cause exists when the facts and circumstances within the arresting officers knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Ruffin, 448 So.2d 1274 (La.1984). Probable cause is to be judged by the probabilities and practical considerations of everyday life on which average men, particularly average police officers, can be expected to act. State v. Ruffin, supra. Probable cause obviously exists where the offense is being committed in the full view of the arresting officer. See: C.Cr.P. Art. 213. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

In the instant case, Deputy Ware had an arrest warrant to be executed at 1505 Carondelet Street for the arrest of a man named “Vance.” When Ware arrived at the address, the door was padlocked on the outside. Although no one responded to his knock on the door, Ware did hear noise and he observed light filtering from the hole in the door. Officer Ware, therefore, was in a place where he had a right to be present. His act of peering into the sizea-ble hole in the door was not an unwarranted intrusion, because at the time he had reason to believe that the subject of the warrant was inside the residence. At the moment when he observed the subjects engaging in illegal activity he would have had probable cause for their arrest. Instead, he summoned the New Orleans Police for assistance. Due to the facts relayed by Ware to the New Orleans Police, as to his observation, the investigating officers had probable cause to invade the residence by looking through the hole in the door. They thereupon observed activities which were consistent with illegal drug usage. These facts and circumstances justified the policemen in their belief that a crime was being committed.

Furthermore, exigent circumstances existed for the warrantless arrest of these subjects. The United States Supreme Court has found exigent circumstances to be present when there exists the possibility that evidence will be destroyed. Schmer-ber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Furthermore, the Louisiana Supreme Court has found exigent circumstances existed in those instances where a subject attempts to flee in order to avoid arrest. State v. Abadie, 390 So.2d 517 (La., 1980).

Since the subjects were apparently using drugs and thereby destroying evidence, exigent circumstances existed for the arrest. Additionally, the flight of the subjects to avoid arrest also presented an instance of exigent circumstances. Accordingly, probable cause and exigent circumstance existed for the warrantless arrest of the subjects within the residence.

Since the arrests were lawful, we now turn to a consideration of the factors surrounding the seizure of the evidence. A search without a valid warrant is unreasonable unless it can be shown to be within one of the clearly delineated exceptions to this rule. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). A recognized exception to this rule exists when a search is performed incident to a lawful arrest. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623,10 L.Ed.2d 726 (1963). In this case the search of the codefendants was valid as a search incident to a valid arrest.

It is also well established that evidence which is in “plain view” is subject to a warrantless search and seizure. Coolidge v. New Hampshire, supra. See: State v. Hernandez, 410 So.2d 1381 (La. 1982). In order for such a search to be valid, three conditions must be present: 1) there must be a prior justification for an intrusion into a protected area, 2) in the course of which evidence is inadvertently discovered, 3) where it is immediately apparent without close inspection that the items seized are evidence or contraband. State v. Hernandez, supra.

The necessary conditions for a “plain view” search were present in this case. That is, as previously discussed, the officers had prior justification for their intrusion.- The drugs and syringes were inadvertently discovered, as these items were lying on top of the dresser in plain sight of the officers. The officers were aware, without close inspection, that the pills, which appeared to be Talwin, were contraband. Thus, the seizure of this evidence was legal.

Assignment of Error No. 2

The defendant, by this assignment, alleges that the trial court committed reversible error in finding the defendant guilty as charged, because the evidence was illegally obtained.

Since we have concluded that the evidence in this case was not illegally obtained, this assignment lacks merit.

Additionally, we have reviewed this case in order to ascertain whether the State proved its case beyond a reasonable doubt, using the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reh. den. 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). Thus this court must determine whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Fuller, 414 So.2d 306 (La.1982).

In this case the defendant was charged with knowingly and intentionally possessing a controlled dangerous substance, to wit, pentazocine. R.S. 40:967. Actual possession of the drug is not required to support such a conviction and constructive possession is sufficient. See: State v. Trahan, 425 So.2d 1222 (La.1983). Constructive possession exists where the illegal substance is subject to the defendant’s dominion and control. See: State v. Trahan, supra.

The State and defendant stipulated that the substance seized was an illegal drug. The State proved that the defendant had dominion and control over the drugs in that she was present in the room where the drugs and syringes were lying on the top of a dresser, in open view. The State also proved that this defendant was observed injecting something, into her arm, and shortly thereafter Johnson attempted to flee through the rear of the house as the arresting officers entered through the front of the residence.

Thus viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found Toni Johnson guilty beyond a reasonable doubt of the knowing and intentional possession of the controlled dangerous drug, pentazo-cine. R.S. 40:967.

Finally, we have reviewed this record for errors patent upon its face and we find no such errors. C.Cr.P. Art. 920(2).

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

AFFIRMED.

      . The codefendant was found not guilty after a bench trial.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Connie Ray EASTON, Appellant.
    No. 16289-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Clyde Lain, II, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Carl Parkerson, Dist. Atty., Monroe, Allen Harvey, Asst. Dist. Atty., Bastrop, for appellee.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The defendant was convicted by a jury of the offenses of purse snatching and second degree battery. Subsequent to being charged as a habitual offender pursuant to LSA-R.S. 15:529.1, and being sentenced to consecutive terms of eighteen years at hard labor and ten years at hard labor, respectively, the defendant appeals. The defendant only argues the assignment of error alleging excessive sentence and thus the other two assignments are deemed abandoned. State v. Williams, 338 So.2d 672 (La.1976). Finding “an error that is discovered by a mere inspection of the pleadings and proceedings,” we vacate the sentence and remand. LSA-C.Cr.P. Art. 920(2).

The defendant was convicted of the instant offenses on September 13, 1983. The state filed a habitual offender bill of information on October 11, 1983, and the defendant was called for sentencing on October 28, 1983. On that occasion, the trial court reviewed the violent nature of the offense, the extent of the victim’s significant medical expenses, and the defendant’s two previous felony convictions — all as reflected in the pre-sentence report. Subsequent to this review, the court inquired of the defendant if “both of those convictions [are] correct,” to which the defendant responded, “Yeah.”

LSA-R.S. 15:529.1 requires that upon the filing of a habitual offender bill of information the trial court

“shall inform [the defendant] of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true.”

Thus, in this case the trial court did not inform the defendant of the nature of the allegations or of his right to be tried “as to the truth thereof.” Moreover, the trial court did not “require the offender to say whether the allegations are true.” It was simply inquiring of the defendant as to the correctness of the information contained in the pre-sentence report. This fact is emphasized by the circumstance that the trial court’s inquiry related to two offenses and the multiple offender bill only charged one previous offense. These failures constitute error. State v. Vincent, 439 So.2d 1124 (La.App. 4th Cir.1983).

However, because the defendant only objected to the excessiveness of the sentence at the time of sentencing and apparently concedes the existence of the previous offenses before us, the central issue for consideration herein is whether the failure to adhere to this specifically required procedure of our law is “an error that is discoverable by the mere inspection of the pleadings and proceedings and without inspection of the evidence” as per LSA-C.Cr.P. Art. 920(2). In other words, is it an “error patent” on the record? We conclude that it is.

The arraignment and the plea of the accused form part of the record. State v. Oliveaux, 312 So.2d 337 (La.1975). However, a habitual offender proceeding is in the nature of penalty enhancement rather than a prosecution, State v. Stott, 395 So.2d 714 (La.1981), and is not a trial but is part of the sentencing procedure. State v. Langendorfer, 389 So.2d 1271 (La.1980).

Thus, while the habitual offender hearing does not reach the status of a trial and the initial inquiry may not actually be an arraignment, our law requires certain formalities which are obviously intended to render due process to the defendant by informing him of the nature of the proceedings and his rights to a fair hearing. This hearing is not a hollow one, and the defendant’s adjudication as a habitual offender is not necessarily automatic even though it may appear that the defendant has been previously convicted; for if the defendant denies the offense or remains silent when inquired of by the trial judge, our law requires that the state prove any offenses used to enhance.

We therefore conclude that under the circumstances here presented, an error patent on the face of the record exists and that the sentence must be vacated and the cause remanded for further sentencing proceedings not inconsistent herewith.

VACATED AND REMANDED.


author: PRICE, Judge Pro Tempore.

text:
    STATE of Louisiana, Appellee, v. L.C. CARTER and Robert E. Minter, Appellants.
    No. 16526-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Samuel Thomas, Tallulah, for appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, James David Caldwell, Dist. Atty., George F. Fox, Jr., Asst. Dist. Atty., Lake Providence, for appellee.
    Before JASPER E. JONES and FRED W. JONES, Jr., JJ., and PRICE, J. (Pro Tempore).
   PRICE, Judge Pro Tempore.

Defendant, Robert E. Minter, appeals his conviction of armed robbery, LSA-R.S. 14:61, and attempted second degree murder, LSA-R.S. 14:27, 14:30.1. The defendant pled guilty to both charges. The defendant has received a sentence of ten years at hard labor without benefit of parole, probation, or suspension of sentence on the conviction of armed robbery. Defendant received ten years at hard labor, to be served concurrently with the sentence imposed for armed robbery, on the conviction of attempted second degree murder. Finding no error by the trial court, we affirm.

At defendant’s guilty plea colloquy, it was alleged that the defendant, and three other black males, beat and robbed Rouie S. Hattaway. The defendant admitted taking part of the money from the robbery.

On November 14, 1983, the defendant filed a Writ of Habeas Corpus in the district court. One of defendant’s claims alleged that his counsel failed to perfect an appeal. On November 21,1983, the district court denied defendant’s application for Writ of Habeas Corpus. The defendant then sought this court’s supervisory review. This court remanded defendant’s application to the district court for reconsideration of defendant’s request for an appeal. The district court then appointed appellate counsel for defendant and ordered an out-of-time appeal for the defendant.

On appeal, the defendant filed the following assignments of error in the district court:

1. The defendant urges on appeal that the trial court erred when Judge A.M. Ragland denied defendant’s Writ of Habeas Corpus.
2. The defendant urges on appeal that the trial court erred when defendant’s counsel failed to reveal supporting statements that defendant was not involved in this cause of action.
3. The defendant urges on appeal that the trial court erred in imposing sentence without delay and failing to order a presentence investigation.
4. The defendant urges on appeal that the trial court erred when it failed to prosecute defendant by indictment and same was not waived in open court.
5. The defendant urges on appeal that the trial court erred when the state failed to prove beyond a reasonable doubt that defendant had the requisite specific intent to have violated or committed a crime.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant contends that the trial court erred in denying his Writ of Habeas Corpus.

Under LSA-C.Cr.P. Art. 924.1, an application for post-conviction relief shall not be entertained if the petitioner may appeal the conviction and sentence which he seeks to challenge, or if an appeal is pending. A defendant must first exhaust whatever appellate rights he has. Post-conviction relief is not designed to take the place of an appeal. Therefore, the defendant’s application for a Writ of Habeas Corpus was premature.

On the basis that the defendant’s application for Writ of Habeas Corpus was premature, the trial court correctly denied the application, without merit. This assignment of error is

ASSIGNMENT OF ERROR NO. 2

By this assignment, the defendant contends that his trial counsel failed to reveal supporting statements that defendant was not involved in the crime. In essence, defendant contends that he was denied effective assistance of counsel.

The issue of ineffective assistance of counsel is more properly raised by Writ of Habeas Corpus. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Williamson, 389 So.2d 1328 (La.1980). This procedure enables the district judge, in a proper case, to order a full evidentiary hearing to determine whether counsel was in fact ineffective. State v. Barnes, 365 So.2d 1282 (La.1978).

Defendant’s prior Writ of Habeas Corpus application was premature and no hearing on the issue of ineffective assistance counsel was held. Therefore, there is no evidence in the record from which this court might review defendant’s claim.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant contends that the trial court erred in imposing sentence immediately after his plea of guilty and by failing to order a presentence investigation. Defendant contends that his counsel did not waive the three day delay between the plea and the sentence.

Statutory delays for sentencing do not apply to pleas of guilty in which case the sentence may be imposed immediately. LSA-C.Cr.P. Art. 873; State v. Jackson, 362 So.2d 1082 (La.1978). Therefore, the trial court did not err by immediately imposing sentence.

The defendant also has contended that the trial court erred in failing to order a presentence investigation. The ordering of a presentence investigation lies within the discretion of the trial court under LSA-C.Cr.P. Art. 875(A)(1). State v. Wimberly, 414 So.2d 666 (La.1982); State v. Bell, 377 So.2d 275 (La.1979). There does not appear to have been a request by either the state or the defendant for a presentence investigation. We do not find any abuse of the trial court’s discretion.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment of error, the defendant contends that the trial court erred in allowing the state to prosecute the defendant by a bill of information rather than by grand jury indictment. Defendant further contends that he did not waive indictment in an open court.

Pursuant to LSA-C.Cr.P. Art. 382, a prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information.

The defendant was charged by bill of information with attempted second degree murder and armed robbery. The maximum possible term of imprisonment for attempted second degree murder, under LSA-R.S. 14:27, 14:30.1, is imprisonment at hard labor for not more than fifty years. The maximum possible term of imprisonment for armed robbery, LSA-R.S. 14:64, is imprisonment at hard labor for not more than 99 years. Since neither crime is punishable by death or life imprisonment, the state was not required to institute prosecution by indictment. Therefore, the prosecution of the defendant in the present case by bill of information was proper.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment, the defendant contends that the state failed to prove beyond a reasonable doubt that the defendant had the requisite specific intent to have violated or committed a crime.

A plea of guilty waives all non-jurisdictional defects in the proceedings pri- or to the plea, except those represented by a qualified plea which are conditioned upon reservation of specified pre-plea errors. State v. Crosby, 338 So.2d 584 (La.1976). Additionally, a plea of guilty constitutes an intelligent waiver of appellate review of the prosecution’s case against him. State v. Hathaway, 411 So.2d 1074 (La.1982). Therefore, defendant waived appellate review of this assignment of error by pleading guilty.

This assignment of error is without merit.

DECREE

Finding no merit to defendant’s assignments of error, the defendant's conviction and sentence are affirmed.

AFFIRMED.


author: FRED W. JONES, Jr., Judge.

text:
    STATE of Louisiana, Appellee, v. Anthony McCARTY, Appellant.
    No. 16555-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Rehearing Denied Feb. 22, 1985.
    Writ Denied April 12, 1985.
    Indigent Defender Office by Richard E. Hiller, and Richard C. Goorley, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty. by Scott J. Crichton and John A. Broadwell, Shreveport, for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

The defendant, Anthony McCarty, was originally tried for second degree murder (R.S. 14:30.1) and armed robbery (R.S. 14:64). Since the jury was unable to reach a verdict, the result was a mistrial. A second jury trial followed and defendant was found guilty of both charges.

The defendant filed a motion for a new trial on the ground of prosecutorial misconduct. After the holding of two hearings, the motion was denied. A motion for a post-verdict judgment of acquittal was also rejected. On the second degree murder conviction the defendant was sentenced to life imprisonment and on the armed robbery conviction to a concurrent prison sentence of 55 years at hard labor, both without benefit of parole.

Defendant appealed his convictions, asking for reversal on the ground of prosecu-torial misconduct and insufficient evidence to support the convictions.

Factual Context

Just before midnight on January 12, 1981, an armed robbery took place at the Town House Apartments in downtown Shreveport. During the robbery, in which some $8.00 was taken from the cash drawer of the apartments, the night clerk Burt was shot in the head. He subsequently died from the wound.

According to Bullard, owner and operator of a club known as the Cimarron Strip, located a couple of blocks from the Town House Apartments, McCarty entered the lounge around midnight on the night of the shooting and stated that he had just shot a man at the described apartments. Bullard said that after the police came into the club looking for someone with blood on his clothes, the defendant gave him a .32 caliber revolver to keep for him. McCarty allegedly left the bar at about 12:30 o’clock A.M., was gone about 30 minutes, and then returned. Bullard stated that defendant handed a baseball cap to Ruth Ann Washington, another bartender at the lounge. He said that the defendant left the club again around 2:00 o’clock A.M. with two black females. Bullard asserted that, before leaving, McCarty retrieved both his revolver and the baseball cap.

The record reflects that law enforcement officials visited the Cimarron Strip three times that night in connection with their investigation. However, Bullard, reportedly a police informant, did not transmit his information concerning McCarty’s involvement with the Town House Apartments incident until the following morning. He then identified the defendant from a photographic lineup. Bullard also indicated that Bennett Thomas and Preston Gantt were present when McCarty asserted that he had killed a person.

Acting on the information received from Bullard, the police located McCarty at a grocery store and arrested him. They seized a revolver from the inside of his coat. A laboratory analysis revealed that the bullet which killed Burt came from this weapon.

McCarty gave the police an oral statement to the effect that on the morning before the shooting he tried to break up a fight, during which incident someone grabbed his gun and fired it three times. He retrieved the pistol and left for the Congo Club. After purchasing a half pint of gin, McCarty stated that he went to a house near Cush’s Grocery at about 8:30 o’clock P.M. and drank until he passed out.

A grand jury indicted McCarty for the crimes involved in the Town House Apartments incident and the trials in question followed. Bullard testified generally as outlined above.

Azzie O’Neal, who testified at the second trial but not at the first, corroborated the testimony of Bullard, particularly with reference to McCarty coming into the lounge on the night of the shooting, stating that he had just shot a man at the Town House Apartments, and asking Bullard to keep his revolver. According to the record, Ms. O’Neal was a friend of Bullard who occasionally assisted him at the lounge.

Bennett Thomas testified that he was employed at the Cimarron Strip as a disc jockey on the night of the shooting. He said that the lounge was rather crowded and the music was so loud that it was difficult to hear a person talking. Thomas denied hearing McCarty admit to having just shot someone and did not see the defendant hand his weapon to Bullard. Thomas admitted that he was a friend of the defendant.

Ruth Ann Washington denied that the defendant had given her a baseball cap to hold for him on the night of the shooting.

Cammie Ray Bell testified that on the night of the shooting a person known to him as “Little Ronnie” came into the Ci-marron Strip and asked Bell if he had seen “Bo Peep.” Bell said that he directed the inquirer to the back room of the club where a dice game was in progress. According to Bell, “Little Ronnie” approached the defendant and, after a brief conversation, McCarty handed him a pistol. Bell said that this incident occurred around 10:30 o’clock P.M. on the night of the Town House Apartments incident. After securing the weapon, “Little Ronnie” left the lounge.

During his cross-examination by the prosecution, Bell admitted to having been in the parish jail the day before he testified but denied being in the same cell with the defendant. He subsequently recanted [after impeachment] and conceded that the jailer had placed him in the same cell with the defendant just before he was scheduled to testify.

Mona Eilee, whose sister had given birth to defendant’s child, testified that defendant and Bullard were gambling at the Ci-marron Strip on the night of the shooting. She stated that “Little Ronnie” came in after midnight and handed the defendant a pistol. This witness, who did not give her story to the police until a year after the incident, asserted that McCarty gave a bartender a hundred dollar bill [which he had won from Bullard] and told him to “treat the house.”

Finally, the defendant took the stand and testified substantially the same as Bell and Ms. Eilee, particularly with reference to “Little Ronnie” borrowing his revolver. He said that when the weapon was returned, Bullard suggested that it be kept behind the bar. The defendant explained that he had gone to the club early in the evening but left when Bullard confronted him about a problem with the sale of some diamond rings. McCarty said that he returned to the lounge later that evening to socialize with some women. He added that he departed the club around closing time and proceeded to a house located near Cush's Grocery where he drank until he passed out. McCarty denied material aspects of his initial statements to the police.

The actions of the jury and the trial judge have been described.

Claim of Prosecutorial Misconduct

Subsequent to the conclusion of defendant’s second trial, defense counsel moved for a new trial after allegedly learning that the prosecutor had deliberately caused the defense witness, Bell, and the defendant to be placed in the same jail cell just prior to the time for Bell to testify at the trial.

At the hearing on the motion for a new trial, Brenda Manners, the jailer, testified that the prosecutor telephoned her and asked if Bell and the defendant could be placed together in the same jail cell as soon as possible. The jailer said that she complied with this request, in accordance with department policy.

The secretary of one of the Caddo Parish District Judges testified that the prosecutor told her that he “had the Deputy put Cammie Ray Bell and McCarty in the same cell block because (he) knew they would impeach themselves.”

The prosecutor testified that, on the spur of the moment, he told the jailer that he would have “no objection if she wished to place the two together in the same cell....”

In denying the motion for a new trial, the trial judge concluded that the prosecutor was guilty of an error in judgment, but not of prosecutorial misconduct. Furthermore, he categorized the error as harmless because the jury had the testimony of Mona Eilee, which was similar to that of Bell.

For the reasons hereinafter explained, we do not agree with the trial judge.

Addressing a prosecutor’s duty, the court in Berger v. U.S., 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) pointed out:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor— indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

The following passage, amplifying upon that duty, is found in 63 Am.Jur.2d, Prosecuting Attorneys, Sec. 27 (1972):

To the state the prosecuting attorney owes honesty and fervor in the performance of his official obligations as a prosecutor; his duty to the defendant is fairness. The public interests demand that a prosecution be conducted with energy and skill, but the prosecuting officer should see that no unfair advantage is taken of the accused. It is as much his duty to see that a person on trial is not deprived of any of his statutory or constitutional rights as it is to prosecute him for the crime with which he may be charged. Nonetheless, zeal in the prosecution of criminal cases is to be commended and not condemned. If convinced of the defendant’s guilt, the prosecuting attorney should, in an honorable way, use every power that he has to secure the defendant’s conviction. At the same time, it is his duty to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, and it is as much his duty to refrain from improper methods calculated to bring about a wrongful conviction as it is to use every legitimate means to bring about a just one.

The prosecutor in this case was guilty of misconduct because:

(1) The testimony of the witness, Bell, was important. It was offered in an effort to show that the defendant did not commit the crimes with which he was charged. If believed by the jury, the defendant would have been acquitted.
(2) Assessment of a witness’ credibility is a critical function of the jury which should not be subverted by the prosecutor’s manipulation of the jail system in such a manner as to destroy that credibility. Even if this witness had from the beginning acknowledged being in the same jail cell with the defendant, the jury would likely have suspected that they discussed the case.
(3)Not to be ignored is the fact that, by having a witness and the defendant placed in the same jail cell, the prosecutor assisted them in violating the rule of sequestration, which is designed to prevent the tainting of testimony.

Was the error harmless beyond a doubt because another witness repeated the same story? We cannot say, since it is impossible to discern what weight the jury assigned to this impeachment of Bell. It is possible that the jury refused to believe Ms. Eilee and the defendant.because of the impeachment.

In summary, the zeal of a young prosecutor to convict is understandable when he is certain of the defendant’s guilt. On the other hand, every defendant, regardless of the blemishes on his character and the opprobrium of his alleged crime, is entitled to a fair trial. When the prosecutor’s fervor ignores that constraint, it is inexcusable.

Finding prosecutorial misconduct which so prejudiced the defendant that his convictions must be reversed, we pretermit consideration of the complaint of insufficient evidence. Obviously, we cannot intelligently consider this in the light of our holding that the jury’s assessment of part of this evidence was not subject to a fair weighing because of the described prosecutorial misconduct.

For the reasons set forth, we reverse defendant’s convictions, vacate his sentences, and remand the case to the trial court for a new trial, consistent with this opinion.


text:
    STATE of Louisiana, Appellee, v. William DEGRATE, Appellant.
    No. 16569-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Motion for Time to Supplement Writ Application Granted Feb. 21, 1985.
    Steven Young, I, Alexandria, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Robert C. Johnson, Asst. Dist. Atty., Monroe, for ap-pellee.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The defendant, William Degrate, age 25, was charged by bill of information with two counts of distribution of Phencyclidine (PCP), a Schedule I drug, a violation of LSA-R.S. 40:966. After a trial by jury the defendant was acquitted on count one and convicted as charged of distribution of PCP under count two of that bill of information. After the receipt of a pre-sentence investigation by the district court judge, he sentenced the defendant to four years at hard labor for the offense of distribution of Phencyclidine, which offense carries a maximum imprisonment term of ten years at hard labor and a maximum fine of $5,000, The defendant appeals claiming a failure on the part of the trial court to properly articulate sentencing considerations sufficient to justify the imposition of this four year hard labor sentence, and further complains of the excessiveness of the sentence actually imposed.

Finding no failure on the part of the trial court to properly articulate sentencing considerations, and further finding no abuse of discretion in the trial court’s imposition of this four year hard labor sentence for the instant offense, we affirm.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Ham-monds, 434 So.2d 452 (La.App. 2d Cir. 1983), writ denied, 439 So.2d 1074 (La. 1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tally, 430 So.2d 124 (La.App. 2d Cir. 1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La. App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

The defendant was convicted of the sale of a cigarette coated with Phencycli-dine to an undercover police officer for the sum of $30 on July 28, 1983. The testimony of the undercover officer indicated that the defendant had a number of other similar cigarettes for sale at the time this cigarette was purchased from the defendant.

At the time of sentencing, the court filed a form pertaining to the mitigating circumstances of Art. 894.1. Therein the court found no mitigating circumstances. The court also orally noted the defendant’s previous convictions for simple battery in interfering with an officer, as well as the fact that at least six other misdemeanor charges were then pending against the defendant. The court also pointed out that the defendant only worked part-time. In this regard, we note that the pre-sentence report indicates that the defendant is pleased that he is able to provide for himself by only working two hours a day. Implicit in this boast and the conduct evidenced in this trial is the fact that the defendant is happy to work minimally and supplement his income with the sale of an expensive and extremely dangerous substance. The pre-sentence also noted the defendant’s lack of discipline in his employment and his otherwise undistinguished work record. Also noted, and adverted to by the trial court, is the fact that the defendant has fathered four children by four separate mothers and has never been married. Also noted in the pre-sentence is the finding that the defendant is unable to take orders and cannot tolerate regimentation. Moreover, the report indicates that he appears to be arrogant, brash and is found offensive “to most people.”

The trial court attached primary significance to the seriousness of the offense committed. The court particularly noted that the defendant had a number of other cigarettes for sale at the price of $30 each and that the defendant’s conduct was secretive and surreptitious, indicating that the defendant was well-versed in the methods to best avoid detection of his criminal activity by law enforcement. The trial court was particularly offended by the known potential of the substance sold “to produce extremely harmful effects.” We agree that this is a particularly harmful drug, and its potential for harm needs no further elaboration here. Although the defendant is a first felony offender, this offense is indeed serious.

Our examination of this record does not indicate any failure on the part of the trial court to properly articulate sentencing considerations under the requirements of LSA-C.Cr.P. Art. 894.1. The articulation adequately supports the trial court’s imposition of a sentence which is less than one-half of the maximum available imprisonment term which could be imposed upon this defendant. Moreover, the sentence imposed is further substantiated by the entire record, including the pre-sentence investigation. Finding the articulation of sentencing considerations adequate to support the sentence imposed, and finding no constitutional excessiveness in the hard labor sentence imposed upon this defendant, the defendant’s sentence and conviction is affirmed.

AFFIRMED.


author: PER CURIAM.

text:
    STATE of Louisiana, Appellee, v. J.D. PARRISH, Appellant.
    No. 16584-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Decelle & Hansen by Edward R. Green-lee, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Carl Parkerson, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   PER CURIAM.

A 44-year-old recidivist felon, convicted by a jury of armed robbery, cannot successfully complain that 60 years at hard labor, without benefit of parole, probation, or suspension of sentence, is constitutionally excessive on the grounds that such a sentence will effectively require him “to be locked away for the rest of his life.” State v. James, 431 So.2d 1075 (La.App. 2d Cir. 1983), writ denied. The other assignments not briefed are considered abandoned. State v. Williams, 454 So.2d 1211 (La.App. 2d Cir.1984).

Sentence AFFIRMED.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Gary ASHLEY, Appellant.
    No. 16592-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      John L. Sheehan, Indigent Defender Office, Ruston, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, T.J. Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., Ruston, for appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

Defendant Gary Ashley was charged by bill of information with two counts of attempted first degree murder, LSA-R.S. 14:27 and 14:30, and one count of armed robbery, LSA-R.S. 14:64. He pled not guilty and was tried by a twelve-person jury which unanimously found him guilty on two counts of attempted second degree murder, LSA-R.S. 14:30.1 and 14:27, and the armed robbery count. He received consecutive hard labor sentences of twenty-five and twenty years on the attempted second degree murder convictions and twenty-five years without benefit on the armed robbery. Defendant appeals his conviction and sentences, bringing five assignments of error:

(1) The trial court failed to grant a mistrial during the second day of trial after defense counsel received evidence from the state, favorable to the defendant;
(2) The trial court failed to allow defense counsel full cross-examination;
(3) The trial court failed to grant a mistrial when, during closing argument, the prosecutor commented there was no evidence offered to prove that the discharge of the gun was accidental;
(4) The evidence was insufficient to sustain a conviction on all three counts; and
(5) The sentence is excessive because the three prison terms are to run consecutively even though the crimes arose from the same criminal act.

FACTS

On the morning of June 17, 1983, appellant allegedly committed armed robbery of a roadside fish vendor in Grambling. Jerry Smith, the victim, had parked his fish van at the corner of Main and Grambling Streets and was standing at the back of the van; his assistant, Wilbur Douglas, was nearby, fetching a water hose. There were no customers present at 7:30 a.m., but Smith noticed that someone had entered the cab of the van. Smith walked around to the back to ask the intruder what he wanted. Smith later identified the intruder as appellant Gary Ashley. Ashley pulled a gun and said, “I come to get your money.” Smith immediately handed Ashley his billfold, which was chained to Smith’s clothing. Ashley snatched the billfold loose and looked inside. Much to his dismay, the billfold contained only about fifty dollars. After insisting that Smith must have more money than that, and remarking that he was risking his life “for no more than this,” Ashley contemptuously threw some of the bills on the ground and ordered Smith to back up. Smith did so and squatted down to collect the bills. Ashley then fired his pistol at Smith, striking him in the side. Ashley grabbed part of the money on the ground and started running off. Smith, who was not seriously wounded, went back inside the van and grabbed his .25 automatic, intending to shoot the fleeing robber, but the gun misfired. Undaunted, Smith went to the van again and got his other gun. He started chasing Ashley and fired three shots at him.

Wilbur Douglas, the assistant, saw most of what had transpired. He happened to be carrying a shotgun in his truck. He hopped into the truck and joined in the pursuit. Ashley, in full stride, glanced over his shoulder at Douglas and gave fire. Douglas was not hit but returned fire in an effort to bring Ashley to a halt.

Police chief Milton Kelly was nearby when the shooting started. Even though he was off duty, tending business at his dry cleaning shop, he hurried to the scene and found Smith with a hole in his side. Kelly offered him a ride to the hospital. Smith accepted, but they took a detour to join the chase. Smith borrowed Kelly’s pistol and exchanged one round with the fleeing Ashley who by now had made his way off the main road and into a wooded area adorned with an old outhouse. Chief Kelly followed. He got out of his car but lost sight of Ashley momentarily. Then he heard a shot from the woods; he stood and waited. Presently Ashley came out with his hands up and surrendered to Kelly, who handcuffed him. Sheriff deputies arrived shortly and took the suspect into custody.

About a dozen citizens, drawn by all the excitement, joined in a search for the gun or the stolen money. Nothing was ever found. At the station, Ashley took a “splotch” test for gunshot residue on his hands; the test was negative.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, appellant contends that the trial court should have granted his motion for a mistrial on the second day of trial. The circumstances were as follows. On the day of the arrest, Deputy Joey Davidson administered a splotch test for gunshot residue. The samples taken were forwarded to the Louisiana Criminalistics Lab for analysis, so results were not immediately available. Defense counsel moved for discovery under LSA-C. Cr.P. arts. 718 and 719, although a copy of this motion is not in the record. R.p. 123. At the August 11 preliminary examination, Deputy Davidson told defense counsel that the results were still not available. Counsel made no further inquiry until the beginning of the second day of trial, after the jury had been selected and sworn (consuming the entire first day) but before the state began its case. On that morning, March 30, 1984, counsel casually asked Deputy Davidson whether he had ever received the test results. The deputy replied he had received them some time ago and they were negative. Before the state began, counsel moved for a mistrial on the basis that the state had failed to comply with its duty of disclosure under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Mistrial is a possible remedy for failure to disclose under LSA-C.Cr.P. art. 729.5 which provides in part:

A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate. [Emphasis added.]

There is no question that the negative results were favorable to defendant, as they would weaken his link with the crimes, along with the fact that the gun was never found, and support his possible defense of mistaken identity. It is also undisputed by the state that defense counsel made an adequate request for discovery of the test results. R.p. 123. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Perkins, 423 So.2d 1103 (La.1982). The standard of materiality is whether the suppressed information “might have affected the outcome of the trial.” United States v. Agurs, 427 U.S. at 104, 96 S.Ct. at 2397; State v. Perkins, 423 So.2d at 1108.

It is not necessary, however, to delve into the issue of materiality because the facts of this case are distinguishable from Brady and Perkins in a significant way. In both of those cases, the exculpatory materials had been withheld until after a full trial and conviction. Under those circumstances, there is clearly no alternative to mistrial. But the rights outlined in Brady are not absolutes; neither Brady, nor the fourteenth amendment, mandates mistrial when other, less drastic means are available to protect the defendant from prejudice. We think the alternate remedies contemplated by article 729.5 clearly illustrate that mistrial is not the only possible relief. The trial court has great discretion in granting article 729.5 relief. See State v. Baldwin, 388 So.2d 664 (La.1980), cert, denied 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981), rehearing denied 450 U.S. 971, 101 S.Ct. 1493, 67 L.Ed.2d 622 (1981); State v. White, 430 So.2d 171 (La. App. 2d Cir.1983), writ denied 433 So.2d 1055 (La.1983). In fact, a recess is approved as a method of allowing defendant the opportunity to present the newly-revealed evidence. See State v. Williams, 448 So.2d 659, 665 (La.1984).

In the instant case, the trial court granted a recess during which counsel telephoned the lab technician. The court offered to let counsel subpoena the technician, but counsel refused. The court further allowed introduction of the evidence, and it was had without state’s objection. Then counsel performed a cross-examination of the deputy who administered the test. In closing argument, counsel himself conceded that negative test results did not completely exculpate defendant. R.p. 216. Under these circumstances, the trial court did not err in refusing to grant a mistrial. The trial court took every reasonable precaution to minimize the prejudice to defendant.

Appellant further cites the case of State v. Meshell, 392 So.2d 433 (La.1980), for the proposition that a mistrial must be granted when the undisclosed information would have profoundly changed the defense strategy. In Meshell, the defendant was on trial for cruelty to a juvenile. Counsel had requested “a copy of any record of [defendant’s] criminal arrest and conviction that is in [the state’s] possession or custody.” At the close of state’s ease, the prosecutor gave counsel a “rap sheet” showing defendant had a prior conviction for child abuse. Defense moved for a mistrial; the motion was denied, and counsel urged on appeal that had he known about the prior record, he would have plea-bargained and never taken the case to trial. The supreme court agreed. In the present case, however, it is difficult to see how an earlier disclosure would have substantially changed the defense strategy. At any rate, counsel has not articulated what he would have done differently. In the first place, defense counsel has demonstrated his lack of concern for the test results by making no further demands until the very morning he was to begin his ease. This belies any alleged reliance on those results. Furthermore, defense counsel was permitted the option of getting an independent firearms expert, yet he declined to do so; this, together with his choice not to call the lab technician, shows no intent to explore the technical aspects of the test or exploit them in Ashley’s behalf. Finally, defense counsel cross-examined the deputy and we think he would have done so regardless of the timeliness of the disclosure. We will not deprecate the amount of pre-trial preparation necessary in a trial of this kind, nor the surprise factor of late disclosure, but we do not see a substantial alteration of defense strategy for it.

In sum, we find the trial court complied with the provisions of C.Cr.P. art. 729.5 and the due process principles of Brady v. Maryland, supra. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment, appellant contends he was denied full cross-examination of the state’s witnesses. At trial, the state objected to all the questions complained of, on the ground that they sought to establish a condition or state of mind and that such evidence was inadmissible under LSA-C. Cr.P. art. 726, which provides:

A. If a defendant intends to introduce testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall not later than ten days prior to trial or such reasonable time as the court may permit, notify the district attorney in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other orders as may be appropriate.
B. If there is a failure to give notice as required by Subsection A of this Article, the court may exclude the testimony of any witness offered by the defendant on the issue of mental condition.

On appeal, the state observes that in each instance of objectionable questioning, the trial court permitted defense counsel to rephrase or reword his questions. In no instance was an objectionable question completely excluded; in no instance was the question unanswered.

The first contested question was posed to the victim, Jerry Smith, a lay witness, when he was asked whether appellant appeared “intoxicated or on drugs?” R.p. 142. After discussion out of the jury’s presence, counsel was permitted to ask, “Did he have any odor about him or smell about him? ... Did you observe his eyes? ... Did they appear to be bloodshot or anything of that nature?” R.p. 150.

The next questions were posed to witness Deputy Stone. “How did he appear to you that morning?” R.p. 174. After a short discussion, counsel was permitted to repeat this question, verbatim, and the witness answered.

Counsel had the most trouble with Deputy Davidson, who administered the splotch test. “Did he appear intoxicated?” was recast as, “You indicated he appeared to be incoherent at times?” R.p. 186, 187. “Based on your observations, do you have any opinion as to what would have caused his being incoherent at the time?” was allowed over objection. R.p. 187. The witness replied, “... he could have been under the influence of some type of drug or something.” R.p. 187-188. The state stipulated to the witness’s ability to discern whether someone had been taking drugs. Defense counsel then attempted to impeach the witness by referring to a prior statement made at the motion to suppress. Deputy Davidson said, “I do remember asking him several questions but I don't recall what his answer was, if in fact [he] gave an answer.” R.p. 190. “At that time, you did indicate that Mr. Ashley did tell you that he had taken some pills. Would that statement be correct? A. Yes sir, if I said it then, then it would be.” R.p. 190.

This synopsis of the contested cross-examination shows the prosecutor was correct in objecting to the questions under article 726. See State v. Gipson, 427 So.2d 1293 (La.App. 2d Cir.1983); State v. Wade, 375 So.2d 97 (La.1977), cert. denied 445 U.S. 971, 100 S.Ct. 1665, 64 L.Ed.2d 249 (1980). The trial court nevertheless gave counsel considerable latitude in pursuing his questioning. This is within the trial court’s discretion. State v. Nero, 319 So.2d 303 (La.1975). Counsel was in fact permitted to reword the questions and, in one instance, to repeat a question after objection. We think this satisfies appellant’s right of cross-examination. See State v. Toomer, 395 So.2d 1320, 1333 (La.1981).

Appellant further contends, under Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), that “denial of effective cross-examination [is] constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” 415 U.S. at 316, 94 S.Ct. at 1110. In Davis, the Supreme Court elaborated:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. [415 U.S. at 316, 94 S.Ct. at 1110]

Counsel was allowed to introduce Deputy Davidson’s prior statement at the motion to suppress for impeachment purposes. With this and the admission of questions about defendant’s physical condition, we do not see any denial of defendant’s sixth amendment right.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

In this assignment, appellant claims the prosecutor commented to the jury on appellant’s failure to testify in his own defense. In his closing statement, the assistant district attorney was anticipating an argument that the bullet that hit Jerry Smith was accidentally discharged. He said, “He shot him during the robbery. Well I suppose that could be accidental but I didn’t see any evidence of it being accidental.” R.p. 208.

Counsel objected on the basis of LSA-C. Cr.P. art. 770, which provides in part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
* * * * * *
(3) The failure of the defendant to testify in his own defense;
* * * * * *

See also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); USCA-Const. amds. v, xiv.

The prosecutor argued, and the trial court accepted, that he was merely talking about the evidence as a whole. The motion was denied.

Under article 770, a mistrial is the mandatory remedy when the prosecutor refers directly or indirectly to the defendant’s failure to testify in his own defense. When, however, a contested remark does not fall precisely under the proscription of article 770, courts apply a different standard. See State v. Frank, 344 So.2d 1039 (La.1977). Thus a remark may inferentially refer to defendant’s failure to testify, without automatically requiring a mistrial. In the case of an inferential statement, we can find reversible error only if the overall intent of the remark was to focus attention on the failure to testify. State v. Frank, supra; State v. Reed, 284 So.2d 574 (La. 1973); State v. Bentley, 219 La. 893, 54 So.2d 137 (1951).

In the instant case, the prosecutor only said he saw “no evidence” of an accidental shooting. The context of the remark is crucial. It came in the middle of an explanation of how the jury could find the defendant guilty of the lesser included offense of attempted manslaughter or aggravated battery. The argument made no reference to defendant. The purpose was not to accuse the defendant by his silence, and we do not think the jury was improperly influenced by it. See State v. Dupre, 408 So.2d 1229 (La.1982). Under these circumstances, the remark does not focus attention on or exploit defendant’s failure to testify.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

Appellant contends the evidence presented at trial was insufficient to sustain a conviction on all three counts. He claims that under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), no rational trier of fact, reviewing the evidence in light most favorable to the prosecution, could have found him guilty beyond a reasonable doubt. The due process clause of the fourteenth amendment requires us to determine whether the evidence is minimally sufficient. USCA-Const. amd. xiv; State v. Graham, 422 So.2d 123 (La.1982).

The evidence on which the convictions were based has already been outlined in the narrative of facts, but for purposes of emphasis we will mention the particular facts appellant asserts in brief:

Count 1, attempted second degree murder of Jerry Smith: the alleged shooting occurred at such a close range that appellant could have killed Smith easily, had that been his intent; since Smith received only a superficial wound, intent to inflict great bodily harm cannot be inferred.
Count 2, attempted second degree murder of Wilbur Douglas: since none of appellant’s shots hit either Douglas or his car, intent to inflict great bodily harm cannot be inferred; moreover, Douglas fired at appellant first, thus excusing the return fire as self-defense. Count 3, armed robbery of Jerry Smith: the negative results of the powder test, coupled with the fact that the alleged gun was never found, negate the use of a “dangerous weapon,” as essential element of R.S. 14:64.

Discussion: Count 3 is not a situation envisioned by State v. Sutton, 436 So.2d 471 (La.1983). Sutton announces a standard of review in cases of conflicting direct evidence. Appellant is not asserting direct evidence in his behalf; rather, he brings negative evidence, the absence of a weapon and the absence of gunpowder on his hands. The state provided direct testimony from the victim and an eyewitness. LSA-R.S. 15:440 provides:

Positive testimony on a given point must be given greater weight than negative testimony on the same point.

Applying this standard and Jackson v. Virginia, we conclude the evidence supports the conviction in Count 3.

Count 1 is supported by reasonable inferences of an intent to kill or inflict great bodily harm. Both R.S. 14:27 and 14:30.1 require that the offender have “specific intent,” which is defined as the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10. Though intent is a fact, it need not be proved as a fact. It may be inferred from the circumstances of the transaction. LSA-R.S. 15:445; State v. Kahey, 436 So.2d 475 (La.1983); State v. Graham, 420 So.2d 1126 (La.1982). In the instant case, despite the superficiality of the wound, appellant drew a gun on Smith at close range, aimed and fired. He was angry at Smith for not giving him more money. Immediately afterwards, appellant fled. From these circumstances, the jury could infer specific intent to kill or inflict great bodily harm. See State v. Lee, 275 So.2d 757 (La.1973); State v. Noble, 425 So.2d 734 (La.1983); State in the Interest of Aaron, 405 So.2d 1194 (La.App. 1st Cir.1981). The evidence is sufficient to support the conviction in Count 1.

In Count 2, appellant alleges Douglas fired at him first. This is unsupported by the record, where Douglas testified he fired only after Ashley had fired first. R.p. 156. Viewing this testimony in light most favorable to the prosecution, it is clear that appellant started the “difficulty” and gave fire in flight; thus he cannot claim self-defense. LSA-R.S. 14:21. Moreover, appellant had just committed a robbery and was eager not to be caught. Douglas’s pursuit endangered his safe escape. From this, the requisite intent can be inferred. R.S. 15:445. Then appellant performed an overt act by firing at Douglas. This satisfies both requirements for an attempt. R.S. 14:27. The evidence supports the conviction in Count 2.

For these reasons, assignment of error No. 4 lacks merit.

ASSIGNMENT OF ERROR NO. 5

Appellant claims his sentence is excessive because it imposes consecutive prison terms for offenses that arose from the same act or transaction. LSA-C.Cr.P. art. 883 provides in part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs' that some or all be served consecutively.

Thus there is a presumption of concurrent sentences for same-transaction crimes. In order to rebut the presumption without an abuse of discretion, the trial court must “expressly direct” consecutive sentences and explain the reasons. State v. Gage, 399 So.2d 1174 (La. 1981). Consecutive sentences are not automatically excessive if the trial court considers other appropriate factors in imposing sentence. State v. Ortego, 382 So.2d 921 (La.1980), cert, denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980). Some of these factors include defendant’s first-offender status, State v. Ortego, supra; dangerousness of the offense, State v. Underwood, 353 So.2d 1013 (La.1978); harm done to the victim, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied 435 So.2d 433 (La. 1983); potential for rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983); and the public’s safety, State v. Underwood, supra.

The trial court, cognizant of its duty under article 883, expressly directed consecutive sentences. R.p. 251. He also mentioned the factors counseling consecutive prison terms. These included appellant’s extensive criminal history, the likelihood of continued crime, and the need for a custodial environment. R.p. 249. The trial court emphasized the seriousness of three offenses committed with a firearm. R.p. 249. The trial court also stated that since the victim in the second attempt charge was not injured, the sentence on that charge should be lighter. R.p. 249, 251.

In sum, we find the trial court complied with the requirement of article 883 and enunciated the appropriate factors in imposing consecutive sentences. We are unable to find any manifest abuse of discretion. State v. Molinario, 400 So.2d 596 (La.1981).

Finally, we address the question of whether the sentences imposed were excessive. A sentence within statutory limits may still be constitutionally excessive. LSA-Const. Art. 1, § 20; State v. Sepulvado, 367 So.2d 762 (La.1979). The trial court must comply with the mandatory guidelines of LSA-C.Cr.P. Art. 894.1 and individualize the sentence by stating for the record the considerations taken into account and their factual bases. State v. Jones, 381 So.2d 416 (La.1980). It is axiomatic that the trial court has great discretion in imposing sentences and we will not overturn one absent a clear abuse of this wide discretion. State v. Trahan, 425 So.2d 1222 (La.1983).

In the instant case, the trial court followed the guidelines of 894.1 very comprehensively, item-by-item. He summarized appellant’s criminal record, which has averaged one arrest per year since 1974, including one prior felony conviction. R.p. 248, 249. He cited appellant’s need of correctional treatment, given his tendency to commit crime. R.p. 149. He stressed the seriousness of the offenses and the possibility that a lighter sentence would deprecate that seriousness. R.p. 250.

Considering the mitigating factors, the trial court found that none of them applied. He noted especially the extensive past criminal and juvenile record, the gravity of the offenses and the total lack of provocation. We conclude the trial court adequately complied with article 894.1.

Attempted second degree murder carries a maximum sentence of fifty years at hard labor. Appellant received sentences of twenty-five and twenty years, about half of his total exposure. Armed robbery carries a maximum sentence of ninety-nine years at hard labor, without benefit. Appellant received twenty-five years, slightly more than one-fourth the maximum. The total sentence of seventy years, though long, is far from needless and purposeless, and will eliminate any further opportunity to commit crime in the future. It is commensurate with the severity of the offense and does not shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Bosley, 454 So.2d 1245 (La.App. 2d Cir. 1984).

Accordingly, the sentences are not excessive and this assignment of error is without merit.

CONCLUSION

For the reasons expressed, appellant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . In his summation at trial, defense counsel conceded defendant could not claim self-defense. R.p. 218. By claiming it now, he undermines his argument in Count 3 that there was no gun. He also undermines his defense theory at trial, where he argued Ashley fired not with intent to kill or inflict great bodily harm, but rather with intent to arrest Douglas’s pursuit.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. Vicky Jolene HUMPHRIES, Appellant.
    No. 16593-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Patrick L. Durusau, Jena, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Michael Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Before JASPER E. JONES, SEXTON, and NORRIS, JJ.
   JASPER E. JONES, Judge.

The defendant, Vicky Jolene Humphries, was charged by bill of information with two counts of distribution of cocaine in violation of LSA-R.S. 40:967. She was found guilty of the charges by a jury and was sentenced to five years at hard labor on each count with the sentences to run concurrently. Defendant appeals her convictions and sentences relying on three assignments of error. We affirm.

FACTS

On November 12, 1982 at approximately 9:00 p.m. an agent for the Metro Narcotics Unit went to the Tango Lounge in West Monroe for the purpose of purchasing drugs. The lounge was crowded and noisy. The agent met a confidential informant in the lounge who introduced him to defendant, who was a bartender at the lounge. The agent engaged the defendant in a conversation across the bar and asked her about purchasing some cocaine. Defendant told the agent she could get him some cocaine but he would have to wait until she had a break from her duties as bartender. The informant was seated on a bar stool next to the agent during his discussion with defendant.

Within a few minutes defendant left the bar and went outside with a male customer. When she returned she went to the restrooms which are in an enclosed area at the rear of the lounge. The agent followed and met defendant in the restroom area and she sold the agent one gram of cocaine for $100.00. The informant remained seated at the bar while the agent made the purchase.

On November 16, 1982 the agent returned to the Tango Lounge to attempt to purchase some more cocaine from defendant. She told him she did not have any at the time but said she could arrange to have some the following night.

On the night of November 17, 1982, the agent returned to the lounge. Defendant told him she would get him some cocaine when she took her break. When defendant went on break she again went outside the lounge with the same male with whom she had left the lounge just before selling the agent the cocaine on the night of November 12. The agent waited about ten minutes and when defendant did not come back in, he went outside with a female from whom he was attempting to purchase marijuana. Once outside the agent saw defendant and the male getting out of a car. The male returned into the lounge and defendant walked up to the agent and sold him gram of cocaine for $50.00. At trial the agent did not remember whether the female from whom he was attempting to purchase the marijuana was present when he purchased the cocaine. The evidence reveals that the informant may have been in the bar when the agent entered but he did not accompany the agent outside or witness the purchase.

Subsequent to her arrest defendant filed a motion for disclosure of the confidential informant. A hearing was held on the motion and it was denied.

Assignment No. 1

By this assignment defendant contends the trial court erred in denying her motion to disclose the identity of the confidential informant.

As a general rule, the state is permitted to withhold the identity of an informer from the accused. This is a privilege founded on public policy which seeks to advance public interest in effective law enforcement by encouraging persons to supply information to the police without fear of reprisal by the person to whom the information pertains. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. James, 396 So.2d 1281 (La.1981).

The Louisiana Supreme Court has consistently held that a confidential informer’s identity will only be divulged to the defendant under exceptional circumstances pertaining to his defense. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971); State v. Robinson, 342 So.2d 183 (La.1977); State v. Oliver, 430 So.2d 650 (La.1983). The general rule is that the burden is on the defendant to demonstrate exceptional circumstances and much discretion is vested in the trial judge on the question of whether the circumstances warrant disclosure. State v. Russell, 334 So.2d 398 (La.1976); State v. Babbitt, 363 So.2d 690 (La.1978). The disclosure of the identity of the informer is only required when the evidence shows that the informant, in cooperation with the police, participated in the crime. State v. Dotson, supra; State v. Babbitt, supra; State v. Oliver, supra. See also State v. Fisckbein, 406 So.2d 590, (La. 1981).

The evidence reveals that the informant did not participate in the crimes. Defendant, nevertheless, argues disclosure should have been ordered because the informant witnessed the events leading to the transactions and possibly overheard her and the agent discuss the November 12 purchase. It is, therefore, conceivable that the informant would have testified against the state’s interest. This precise argument was rejected in State v. Davis, 411 So.2d 434 (La.1982). We note that the circumstances in Davis present a stronger case for disclosure than those in the instant case. There the informant was in the immediate company of the agent when the purchases were made. Here the informant was not even in a position to witness the purchases.

Defendant urges this court to abandon the exceptional circumstances analysis used by the supreme court and decide that the failure to disclose violates her rights to confrontation and compulsory process. She argues the failure to disclose violates her right to confront the witnesses against her because she could not effectively cross-examine the agent without access to the informant. This argument has been expressly rejected by the United States and Louisiana Supreme Courts. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); State v. Babbitt, supra. Defendant concedes that the Louisiana Supreme Court has never used a compulsory process analysis to order disclosure and she cites no federal case which would here require disclosure of the informant based upon her right to compulsory process.

This assignment of error lacks merit.

Assignment No. 2

By this assignment defendant contends there is insufficient evidence to establish that she was the one who sold to the agent the cocaine introduced at trial. The only direct evidence that defendant sold the cocaine is the agent’s testimony. Defendant took the stand and denied having sold any cocaine to the agent. She argues that the agent’s contradicted testimony is insufficient to establish she made the sales because the state failed to call two witnesses allegedly under its control who could have testified to some of the events leading to the sales. Therefore, she is entitled to a presumption that the testimony of these witnesses would have been contrary to the state’s interest. See LSA-R.S. 15:432.

The two witnesses to whom defendant refers are the male that she met on November 12 and 17 immediately before selling cocaine to the agent and the female that accompanied the agent outside the Tango Lounge just before he made the purchase on November 17. The record establishes that the male did not witness either transaction and only raises the possibility that the female witnessed the November 17 transaction. Even if the state’s failure to call these witnesses would have entitled defendant to the presumption, she is not entitled to its recognition on appeal because there is no indication in the record, as designated for appeal, that she attempted to get the presumption before the jury. If she could have established the state’s control of the witnesses she could have submitted the presumption to the jury by requesting a special instruction. See LSA-C.Cr.P. art. 807; State v. Amaud, 412 So.2d 1013 (La.1982); State v. Joseph, 407 So.2d 712 (La.1981). Defendant apparently did not request such a charge. An omission in the jury charges which the trial judge was not requested to supply provides no grounds for complaint on appeal. State v. Brown, 242 La. 384, 136 So.2d 394 (1962).

The standard of appellate review of the sufficiency of the evidence is to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v: Edwards, 420 So.2d 663 (La.1982); State v. Johnson, 457 So.2d 732 (La.App. 2d Cir. 1984). The agent’s testimony, which the jury obviously found to be more credible than defendant’s, was sufficient to establish that it was defendant who sold him the cocaine and satisfies the Jackson v. Virginia standard.

This assignment of error lacks merit.

Assignment No. 3

By this assignment defendant, a first offender, contends the sentences imposed are excessive.

The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir. 1983); State v. Square, 433 So.2d 104 (La. 1983).

A conviction for distribution of cocaine requires a mandatory five year minimum sentence. LSA-R.S. 40:967B(1). Since defendant received the mandatory minimum sentences, we will treat her assignment of

error as questioning whether the trial court erred in not suspending her sentence and placing her on probation.

Included in the wide discretion afforded the trial judge in sentencing is the option of suspending sentence for a first felony conviction and placing the offender on probation. LSA-C.Cr.P. art. 893. A list of three factors the trial judge should consider in deciding whether to suspend a sentence or order imprisonment is contained in LSA-C.Cr.P. art. 894.1A which provides:

Art. 894.1. Sentence guidelines; generally
A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.

The trial court’s decision not to suspend defendant’s sentences is based on a finding that all three factors are present. Defendant argues the record does not support a finding there is an undue risk she will commit another crime if given suspended sentences. She points out that the presen-tence investigation report compiled at the direction of the trial judge reveals that she has no prior criminal record, is gainfully employed and is not considered by law enforcement officials to be involved in extensive drug dealings.

Although there is some merit to defendant’s argument, we are unable to say that the trial court’s determination on the “undue risk” factor was a manifest abuse of discretion. The judge was influenced by the fact that defendant was charged with two violations of the offense which occurred within a short period of time and by defendant’s apparent willingness to participate in the crime. It is also implicit in the trial judge’s reasons for sentence that his finding is based in part on the need to deter defendant and others from distributing cocaine. Deterence is a legitimate sentencing objective. State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983).

The legislature clearly considers the distribution of cocaine to be a serious offense as is evidenced by the fact that conviction requires a five year minimum sentence and a thirty year maximum sentence. The trial court’s determination that suspended sentences would deprecate the seriousness of the offense is supported by law and the record. We find no manifest abuse of discretion in the trial court’s decision not to suspend the sentences.

This assignment of error lacks merit.

Defendant’s convictions and sentences are AFFIRMED.

      . LSA-R.S. 15:432. Effect of legal presumptions; rebutting evidence; illustrations
      A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it pre-existed; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; that the person in the unexplained possession of property recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would not have aided him; that the witnesses have told the truth, (emphasis added)

      . The record does not establish the state had control of these two witnesses.