author: EDWARDS, Judge.

text:
    STATE of Louisiana v. James Isaac STEVENSON.
    No. 83-KJ-0730.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Motion Denied May 25, 1984.

      Ossie Brown, Dist. Atty. by Richard Johnson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    R. Judge Eames, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant, James Isaac Stevenson, was indicted for second degree murder, a violation of LSA-R.S. 14:30.1. The jury returned a responsive verdict of guilty of manslaughter. Defendant was sentenced to serve five years at hard labor, without benefit of parole, probation or suspension of sentence. An additional sentence of two years at hard labor, to be served consecutively, without benefit of parole, probation or suspension of sentence was imposed pursuant to LSA-R.S. 14:95.2. Defendant appeals his conviction and sentence, alleging twenty-one assignments of error.

The victim, Albert Bracey, age 19, died from a gunshot wound to the head. The defendant, Stevenson, was 15 years old at the time of the shooting. Bracey had been working on his automobile in front of the defendant’s home when an argument ensued between Bracey and the defendant. At some point, the defendant retreated into his home, retrieved a 22 caliber magnum pistol, loaded it and returned. When the argument continued, Bracey advanced toward the home, carrying a wrench. At that- point, defendant’s pistol discharged, mortally wounding Bracey. Stevenson claimed at trial that he was attempting to raise the gun into the air and fire a warning shot when it accidentally discharged.

ASSIGNMENTS OF ERROR NOS. 2, 4 AND 11

By these assignments of error, defendant argues that the court erred in restricting voir dire of potential jurors.

Assignment of error No. 2 concerns the court’s refusal to permit defense counsel to question a potential juror about the sex, race and age of persons who had committed petty crimes against her in the past. The juror testified that she had been the victim of a purse snatching and hubcap thefts within the past five years. The court sustained the state’s objections to questions involving the sex, race and age of the perpetrators on the basis of relevance. The juror did state that she did not suspect that the defendant was involved in any of the incidents.

By assignment of error No. 4, defendant contends that the court erred in sustaining the state’s objection to a question posed to a potential juror about the credibility of the defendant’s family. The following exchange occurred between defense counsel and the potential juror:

“Q. If members of the defendant’s family or members of a defendant family were called to testify, would you tend to give less weight to their testimony solely and simply because they are members of the family?
“A. No.
“Q. In other words, do you harbor any belief or concept that, well, they’re related so obviously they would try to — ”

At that point, the state objected, on the ground that defense counsel was seeking to obtain the prospective juror’s opinion as to how he would weigh testimony which had not yet been presented. The trial court sustained the objection.

Assignment of error No. 11 involves defense counsel’s efforts to elicit responses from a prospective juror about a recent television series which concerned crime in this country. The juror responded that she did not think she had seen the program. When defense counsel then attempted to characterize the nature of the series, the state objected and the court sustained the objection.

It is well-settled that the scope of voir dire examination is within the discretion of the trial court, and its rulings will not be disturbed in the absence of a clear abuse of that discretion. LSA-C.Cr.P. art. 786. In evaluating the fairness of the ruling, the entire examination must be considered. State v. Stucke, 419 So.2d 939 (La.1982); State v. Kohler, 434 So.2d 1110 (La.App. 1st Cir.1983). An examination of the record reveals that the trial court allowed great latitude in the scope of voir dire; there was no abuse of discretion.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant argues that the trial court erred in denying a challenge to a prospective juror for cause.

During voir dire, the following exchange occurred between the assistant district attorney and a prospective juror:

“Q. Do you have any notion as you sit today in court, Mr. Henley, that the defendant must have done something wrong elsewhile he would not be here today?
“A. I feel he committed a crime or he wouldn’t be here today, yes.
“Q. And in so doing, do you consider that that would at least be one strike against him at this stage?
“A. No. Not really.”

Counsel for defendant challenged the juror for cause. In an attempt to rehabilitate the juror, the state continued questioning:

“Q. Can you accept the judge’s instructions that the defendant is presumed to be innocent until proven guilty by the evidence beyond a reasonable doubt?
“A. Yes.”

The trial court denied the challenge for cause and defendant argues that this constitutes reversible error.

Article 797(2) of the Louisiana Code of Criminal Procedure provides that a juror may be challenged for cause on the ground that he is not impartial. The article goes on to provide that the prospective juror’s opinion as to the defendant’s guilt or innocence is not sufficient grounds to challenge for cause, “if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.” The trial judge has wide discretion in ruling on a challenge for cause, and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Smith, 437 So.2d 802 (La.1983); State v. Glaze, 439 So.2d 605 (La.App. 1st Cir.1983). There was no abuse of that discretion in the instant case. The juror indicated his ability to follow the court’s instructions with regard to the burden of proof concerning defendant’s guilt.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 8

In this assignment of error defendant argues that the trial court erred in denying a mistrial based on its denial of a challenge for cause. The challenge for cause was based upon allegedly prejudicial comments made by a prospective juror.

As noted above, the trial court has broad discretion in ruling on challenges for cause and such a ruling will not be disturbed absent a showing of abuse of discretion. State v. Smith, supra; State v. Glaze, supra. There is no such abuse of discretion present here. In response to defense counsel’s question about possible racial prejudice, the prospective juror stated that “10 or 20 years ago” black youths might have been more prone to look for trouble because of difficulty in finding jobs. However, she went on to state that she could fairly judge the evidence without regard to defendant’s race. There is no error in the denial of the challenge for cause, nor was there any basis for a mistrial present in the remarks made by the juror.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 5, 6 AND 7

By these assignments of error the defendant argues that the trial court erred in denying his motion for a mistrial based on alleged prejudicial comments made by the judge and prosecutor. Assignment of error No. 5 alleges that the trial judge made prejudicial comments and intimidated defense counsel during voir dire. Assignment of error No. 6 asserts that the prosecutor violated the tenet of article 770 of the Louisiana Code of Criminal Procedure by referring to the defendant’s failure to testify. Assignment of error No. 7 asserts that the trial judge committed prejudicial error by disagreeing with a statement made by defense counsel.

In the interest of brevity, this court will forego a detailed examination of the statements complained of by the defendant and the circumstances surrounding each statement. An examination of the statements complained of by defense counsel reveals that these assignments of error are absolutely meritless. Mistrial is a drastic remedy and should be declared only when unnecessary prejudice results to the accused. State v. Brown, 434 So.2d 1166 (La.App. 1st Cir.1983). There is no error in the trial court’s denial of the motions for mistrial in these instances.

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 9, 10, 12, 13 AND 14

By these assignments of error defendant asserts that the trial court erred in admitting certain photographs into evidence. Defendant contends that the photographs should have been held inadmissible because they are unnecessarily gruesome and because proper foundation for their admission was not established.

The test for the admissibility for allegedly gruesome photographs is whether their probative value outweighs the possible prejudice which may result from their display to the jury. State v. Kelly, 362 So.2d 1071 (La.1978); State v. Cooper, 334 So.2d 211 (La.1976); State v. Kohler, 434 So.2d 1110 (La.App. 1st Cir.1983). Photographs of a deceased victim are generally relevant to prove corpus delicti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity, and number of wounds; and to establish the identity of the victim. State v. Sterling, 377 So.2d 58 (La.1979); State v. Lang, 430 So.2d 1239 (La.App. 1st Cir.1983).

The photographs which the defendant objects to are of the crime scene and of the victim. Our examination reveals that they are not unduly gruesome. The photograph of the victim, which is understandably unpleasant, is not so offensive as to unduly inflame the jurors and was relevant proof of corpus delicti, manner of death, and the victim’s position relative to defendant at the time that the fatal shot was fired. The other photographs, those of the crime scene, are not offensive and are relevant to corroborate the witness’ description of the scene of the confrontation between defendant and the victim.

Defendant’s contention that a proper foundation was not established for admission of the photographs is totally merit-less. The police officer who took the photographs of the crime scene and the investigator who took the picture of the victim both testified at trial and positively identified the photographs which they had taken. There was no error in the ruling that a proper foundation had been laid.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 15

By this assignment of error defendant argues that the trial court erred in denying his motion for a mistrial based on the admission of demonstrative evidence without a proper foundation and the failure to qualify a witness as an expert. The exhibit complained of is a post-mortem diagram prepared by Hillar Moore, an investigator with the East Baton Rouge Parish District Attorney’s Office. Moore identified the exhibit as one which he made in conjunction with the autopsy of the victim, at which Moore was present. The diagram depicts the entry point, path of travel and final resting place of the bullet which struck the victim.

The rule concerning the introduction of demonstrative evidence is that the foundation laid must establish that the evidence is connected with the case and has some relevance which the trial court considers sufficient to warrant its introduction. Diagrams are generally admissible to aid the jury if shown to be an accurate representation of the subject matter in question. The ruling of the trial court relative to admissibility will not be disturbed on appeal absent an abuse of discretion. State v. Prestridge, 399 So.2d 564 (La.1981). Moore positively identified the diagram which he prepared based on his personal observation at the autopsy. There is no error in the admission of the diagram.

Defendant also argues that the court committed error in allowing Moore to testify when he had not been qualified as an expert. LSA-R.S. 15:464 provides as follows:

“On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.”

The testimony given by Moore did not constitute expert testimony because no opinion was expressed therein. Moore merely testified with regard to his observations and actions in investigating the death of Albert Bracey.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 16

In this assignment of error, defendant argues that the court erred when it admitted medical records offered by the state over defendant’s objection that the records constituted hearsay evidence. The records were admitted pursuant to LSA-R.S. 13:3714, which creates an exception to the hearsay rule in the case of hospital records. Defendant argues that the statute impermissibly shifts the burden of proof to the defendant in a criminal case.

Our Supreme Court has held that LSA-R.S. 13:3714 is constitutionally valid. State v. Wientjes, 341 So.2d 390 (La.1976); State v. Trahan, 332 So.2d 218 (La.1976). Under the statute, the defendant is given the opportunity to traverse the makers of the medical records. However, the burden of establishing the admissibility of the records remains with the state, which must prove that all the requirements of the statute are met. There is no error in the admission of the medical records.

In brief, counsel for defendant argues that the trial court erred by failing to require the state to qualify a police officer as a medical expert with regard to admission of the medical records. Initially, we note that this issue was not made a part of defendant’s assignments of error and is not properly before us on appeal. LSA-C.Cr.P. art. 920. In any event, we find no error. LSA-R.S. 13:3714 provides that the certified copies of medical records are a prima facie evidence of the contents thereof, there is no requirement of expert testimony, or indeed of any testimony, to render the records admissible.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 17

• By this assignment of error defendant argues that the taped statement which he gave to the police was not voluntarily given and that it was therefore erroneously admitted into evidence. Defendant, a 15 year old juvenile, was accompanied by his 21 year old sister, Mary Dolton, at the time he made the statement. He contends that the state failed to prove compliance with the requirements of State In The Interest of Dino, 359 So.2d 586 (La.1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978).

The decision in Dino imposes three prerequisites for the valid waiver by a juvenile of his right to counsel and privilege against self-incrimination: The juvenile must have actually consulted with an attorney or adult before waiver; the attorney or adult consulted was interested in the welfare of the juvenile; and, if a non-attorney adult was consulted, the adult was fully advised of the rights of the juvenile. Defendant asserts that Mary Dolton was not fully advised of the rights which were being waived and that the record fails to establish that a consultation between defendant and his sister was held prior to the giving of the taped statement. Our review of the record reveals that all of the Dino requirements were complied with.

The taped statement itself reflects that Mary Dolton was made aware of the rights that were being waived. The police officers carefully and thoroughly enumerated defendant’s rights, ascertaining that both the defendant and his sister understood. Each responded affirmatively that they understood those rights and that defendant wished to make a statement. Additionally, each executed a waiver of rights form which indicated that defendant had been advised of his rights, understood them, and wished to weigh them and make a statement. Both the defendant and Mary Dol-ton testified at trial that they were given an opportunity alone to discuss whether or not the defendant should make the statement. We find that the Dino factors were met. Prior to making the statement, defendant was afforded a meaningful consultation with a concerned adult who was fully advised of his rights. The statement was properly admitted.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 18

In this assignment of error defendant argues that the trial court erred in refusing to order admission of a taped statement given to police by Daryl Stevenson, an acquaintance of defendant’s who testified at trial. Defendant contends that in addition to Daryl Stevenson’s testimony the trial court should have ordered the state to play his recorded “confession” in its entirety. See LSA-R.S. 15:450. This argument is totally without merit. Daryl Stevenson was not an accused in this matter, nor was he present at the scene of the shooting. His statement is not a confession, but a factual narrative of the events which transpired after the shooting. Daryl Stevenson testified at trial with regard to these matters and his testimony was in accord with the taped statement, which was admitted into the record but not played for the jury. That statement, therefore, constituted inadmissible hearsay and its introduction was certainly not required at trial.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 19 AND 21

By these assignments of error, defendant argues that the trial court erred in denying his motions for a directed verdict of acquittal and for a new trial on the grounds of insufficient evidence.

Defendant relies upon Article 778 of the Louisiana Code of Criminal Procedure as authority for the motion for directed verdict. However, that article was amended by Acts No. 527 of 1975. In its current form, Article 778 does not authorize directed verdict in cases tried to a jury, as was the instant case. In the alternative, defendant argues that the prohibition of a directed verdict in jury trials violates the standard of review specified in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In State v. Hudson, 253 La. 992, 221 So.2d 484 (1969), reversed in part on other grounds, 403 U.S. 946, 91 S.Ct. 2282, 29 L.Ed.2d 856 (1971), the Louisiana Supreme Court declared the mechanism for a directed verdict in a jury trial to be an unconstitutional usurpation of the jury functions. There is no merit in defendant’s argument, a motion for directed verdict is not necessary to effectuate the Jackson v. Virginia standard of appellate review.

Defendant also argues that the court erred in denying his motion for a new trial based on the grounds that the verdict was contrary to the law and evidence. Specifically, defendant argues that the state failed to disprove the defense of justification. He asserts that the shooting of Bra-cey was justified because defendant acted in the belief that he was in imminent danger of losing his life or receiving great bodily harm. Defendant contends that Bracey was threatening him with a pipe wrench when he attempted to fire a warning shot.

The trial court testimony reveals that defendant and the victim were involved in an argument outside of the defendant’s home during the course of which defendant threatened the victim. When the victim responded by threatening defendant with a wrench, the defendant entered his home, went to his bedroom and obtained a gun and bullets. Defendant then loaded the gun and returned outside where the argument continued, resulting in the shooting of Bracey.

LSA-R.S. 14:20(1) provides that a homicide is justifiable when “committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger_” Although there is no unqualified duty to retreat, the possibility of escape is a factor in determining whether or not a defendant had the reasonable belief that deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982); State v. Collins, 306 So.2d 662 (La.1975); State v. Bailey, 261 La. 831, 261 So.2d 583 (1972). When the defendant initially retreated from the confrontation the victim returned to working on his automobile. However, defendant returned with a loaded gun and resumed the argument. Having demonstrated his ability to escape the confrontation, defendant instead chose to return and pursue it aided by a deadly weapon. Under those circumstances, any reasonable trier of fact could have concluded that the defendant’s actions were not justified and that the state carried its burden of proving that the defendant committed the crime of manslaughter. See LSA-R.S. 14:21. There is no error in the denial of a motion for a new trial.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 20

In this assignment of error defendant argues that the sentence imposed by the trial court is excessive.

The maximum penalty under LSA-R.S. 14:31 for the crime of manslaughter is 21 years at hard labor, there is no minimum penalty. However, Article 893.1 of the Louisiana Code of Criminal Procedure provides that when a firearm is used in the commission of a felony the court shall impose a sentence of five years’ imprisonment if the maximum sentence for the offense is five years or more. Additionally, LSA-R.S. 14:95.2 provides that when a firearm is used to commit certain enumerated crimes, including manslaughter, the court shall impose a sentence of two years imprisonment, “in addition to any other penalty imposed. ...” That statute further provides that the term of imprisonment which it imposes “shall run consecutively to any other penalty imposed upon conviction _” Acting pursuant to these provisions, the court sentenced the defendant to five years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The court also imposed an additional sentence of two years imprisonment at hard labor, without benefit of parole, probation, suspension of sentence or credit for good time, said sentence to run consecutively to the five-year term.

Defendant argues that the trial court erred in imposing sentence under both statutes and that the sentence imposed is excessive. The sentencing provisions of Article 893.1 and LSA-R.S. 14:95.2 are not in conflict and can both be applied in arriving at a sentence. State v. Roussel, 424 So.2d 226 (La.1982). Nor is the sentence imposed excessive. The potential term of imprisonment for manslaughter is twenty-one years. The court exercised its discretion and imposed only the minimum term of five years required by Article 893.1 of the Louisiana Code of Criminal Procedure. The trial court was vested with no discretion to impose a lesser sentence. In light of the seriousness of the crime committed, the sentence imposed is not unconstitutionally excessive.

This assignment of error lacks merit.

For the foregoing reasons, the conviction and sentence of the defendant, James Isaac Stevenson, are affirmed.

AFFIRMED.

      . Assignment of error No. 3 was not briefed on appeal, and is therefore considered abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Lionell MASON.
    No. 83 KA 0752.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      John M. Bemiss, Jr., Asst. Indigent Defender, Port Allen, for defendant, Lionell Mason, appellant.
    T. Barry Wilkinson, Asst. Dist. Atty., Port Allen, for the State of Louisiana, ap-pellee.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, Lionell Mason, was charged by bill of information with having committed forgery, in violation of LSA-R.S. 14:72. After pleading not guilty, defendant was tried by a jury and found guilty. Defendant was subsequently sentenced to six years at hard labor. He now appeals his conviction and sentence, alleging twelve assignments of error. Defendant has not briefed assignments of error nos. 2, 6, 8, 9, 10 and 11. Therefore, they are considered abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.

FACTS:

Defendant and a friend, Clarence Robinson, attempted to cash a government check at a grocery store in a rural section of West Baton Rouge Parish. The check was made payable to another party, one Joseph Simon. Defendant and his friend had gathered a basket full of groceries and asked the cashier to cash the government check to pay for the groceries. When the cashier asked defendant’s friend for identification he replied that he had forgotten his driver’s license. Defendant produced his driver’s license and handed it to the cashier to use As identification. The cashier took defendant’s driver’s license and the check to a second cashier to ask if she would cash the check. The first cashier, who had become suspicious, went to the rear of the store to find the owner. The second cashier remained at the counter. The owner called police from the rear of the store. The first cashier then returned to her register, found that the check had been endorsed with the name of Joseph Simon and that the second cashier had written defendant’s driver’s license number on the back of the check. When the deputies drove up to the grocery store, defendant quickly hurried out the front door without his groceries. His friend went to the bathroom and exited the store through a rear window.

Defendant was arrested several hours later on a country road and interrogated by a federal investigator for the Secret Service. After signing a waiver of rights form entitled “Warning and Consent to Speak”, defendant gave an oral confession to the Secret Service agent. The agent requested and obtained several samples of defendant’s handwriting which were later turned over to a handwriting expert who determined that the signature of the name Joseph Simon on the back of the government check was written by the same person who had written the handwriting samples. Defendant was charged with forgery, and this trial resulted.

ASSIGNMENTS OP ERROR NOS. 1 AND 7:

Defendant complains in his first and seventh assignments of error that the trial court erred in failing to suppress an incul-patory statement allegedly made by defendant to a special agent with the U.S. Secret Service. Although delendant admitted he had been given his Miranda warnings and he had signified that he had understood each assertion, defendant argues that he did not realize that he had a right to remain silent and to refuse to answer the questions put to him by the special agent nor did he understand that he had a right to counsel and that, if he could not afford one, an attorney would be appointed to represent him. For these reasons, defendant argues that he did not knowingly and intelligently waive his rights.

The Secret Service agent testified that defendant had given him an oral inculpato-ry statement and he had transcribed that statement to writing. Defendant’s statement was given after he had signed the Warning and Consent to Speak form and after the Secret Service agent had discussed defendant’s rights with him and had been satisfied that defendant fully understood those rights. The agent witnessed defendant’s signing of the Warning and Consent to Speak form.

Defendant testified at the hearing on the motion to suppress the confession that he was given his rights by the Secret Service agent, that he understood those rights and that he signed the Warning and Consent to Speak form. Further, the defendant testified that he had not been threatened in any way during the interrogation. However, at the Motion to Suppress hearing and at trial defendant admitted talking to the special agent but denied that he had given the special agent any inculpatory statement.

Although no written confession was obtained in this ease but rather an oral inculpatory statement, on review of admissibility of that statement we apply the rules governing the admissibility of confessions. State v. McGraw, 366 So.2d 1278 (La.1978).

The burden is on the state to prove beyond a reasonable doubt that a confession it wishes to introduce in evidence was free and voluntary and was not induced by threats, promises or coercion; and the conclusions of the trial court with respect to the credibility of the witnesses testifying to the voluntariness must be accorded great weight on appeal. LSA-R.S. 15:451; State v. Neslo, 433 So.2d 73 (La.1983).

The trial judge’s determination of credibility was obviously in favor of the Secret Service agent and was reinforced by defendant’s testimony that his interrogators had made no threats and offered no inducements to defendant to obtain his statement. The record contains ample evidence that the state has borne the burden of proving that defendant’s inculpatory statement was given freely and voluntarily and that defendant had been given his Miranda rights and had understood those rights. There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 3:

Defendant contends that the trial court erred when it refused defendant’s motion for a continuance following the amendment of the bill of information, arguing that the amendment was one of substance and such continuance is authorized by LSA-C.Cr.P. 489. On the morning of the trial, the bill of information was amended by deleting the words “the maker thereof” and substituting in their place the word “thereon”, so that the charge in the amended bill of information read “... forged a check by falsely making the signature of Joseph Simon thereon in violation of LSA-R.S. 14:72.” Defendant claimed surprise, arguing that the amendment was one of substance, and moved for a recess of two or three days. The motion was denied. LSA-Cr.P. 489 provides:

“If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy.”

The purpose of a continuance as authorized by LSA-C.Cr.P. 489 is to protect defendant from surprise or prejudice which may result from the amendment to the bill of information; defendant must show in what respect his defense is prejudiced by the change. State v. Gibson, 322 So.2d 143 (La.1975). A mere allegation that the defense will be affected by the amendment is not sufficient. State v. Dye, 384 So.2d 420 (La.1980).

Although defendant alleged surprise at the time of the amendment, the trial judge, in denying the motion, determined that defendant was not caught by surprise because the answer to defendant’s request for a bill of particulars informed defendant that the false signing of the name of Joseph Simon, the payee on the check, was the basis for the forgery charge.

We agree. The amendment made no substantive change in the charge against defendant. The defendant was adequately informed by the original bill of information as to whose signature the forgery charge was based upon and had adequate time to prepare for his defense. Moreover, in his brief, defendant makes no showing of how he was prejudiced by the denial of a continuance or recess at that time. We find no error in the trial court’s denial of defendant’s motion for recess.

ASSIGNMENT OF ERROR NO. 4:

Defendant contends that the trial court erred in overruling defendant’s objection to testimony which he contends was hearsay. At trial, Mrs. Norma Sonnier, one of the cashiers in the grocery store at the time of the crime, testified that the other cashier to whom the government check was presented for cashing came over to her counter and asked her if she could cash or okay the government check. Defendant objected to this testimony on the grounds that such a statement was hearsay. The trial court overruled defendant’s objection saying: "... ⅝ ⅜ * That is not hearsay. * * * The statement does not attempt to prove a fact. * * * ” LSA-R.S. 15:434 provides:

“Hearsay evidence is inadmissible, except as otherwise provided in his code.”

However, evidence is non-hearsay when offered non-assertively to prove that the utterance occurred or that a conversation had taken place, and not to prove the truth of the facts recited. State v. Naas, 409 So.2d 535 (La.1981) cert. denied, 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 133 (1982).

We agree that the statement was not admitted to prove the truth of the facts recited but to prove that the utterance occurred. Such testimony is not hearsay. The trial court was correct in its ruling.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 5:

Defendant complains that the trial court erred when it overruled his objection at trial to the testimony of one of the investigating officers, arguing that such testimony was hearsay. The following exchange is the testimony objected to:

“Q. (D.A.) Once you got into the store was anybody identified to you as the party or parties that were involved in this incident?
A. (Deputy Horner) Yes, sir.”

Although the act of identifying the accused is essentially assertive in nature, and thus the officer’s testimony to this effect was hearsay (State v. Smith, 285 So.2d 240, 246 (La.1973)), defendant was not substantially prejudiced by the remark in view of the fact that the two store cashiers had already identified defendant as one of the persons involved in the commission of the instant crime and in view of defendant’s own testimony that he had been present in the store and had seen the police arrive. Deputy Horner’s testimony was merely cumulative and corroborative of other testimony presented by the state’s witnesses. If an error occurred, it was harmless error. See, e.g., State v. Junak, 436 So.2d 1312, 1313 (La.App. 4th Cir.1983).

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 12:

Defendant contends that the trial court imposed an improper and excessive sentence, arguing that the trial judge’s reasons for sentencing are not valid under the guidelines set forth in LSA-C.Cr.P. 894.1, as defendant is a first offender.

The trial court sentenced defendant to six years at hard labor. The maximum sentence for forgery of which defendant was convicted is a fine of not more than $5,000.00 or imprisonment with or without hard labor for not more than ten years, or both. LSA-R.S. 14:72.

Excessive sentences are prohibited under the provisions of the Louisiana Constitution of 1974, Article I, Section 20. An excessive sentence has been defined by the courts as being one that is grossly disproportionate to the severity of the crime or nothing more than the purposeless and needless infliction of pain and suffering. State v. Vaughn, 431 So.2d 763 (La.1983).

LSA-C.Cr.P. Article 894.1 sets forth the guidelines or factors to be considered by the trial court in imposing sentence. The trial judge is required by that article to state those factors he considered in imposing sentence. State v. McElveen and Allen, 439 So.2d 601 (La.App. 1st Cir.1983).

In its reasons for sentencing the trial court noted as a factor mitigating against incarceration the fact that the defendant is a first felony offender. The trial court noted on the other hand that defendant’s lack of remorse, his unwillingness to identify the driver of the automobile used to take him to the rural grocery store where the defendant sought to cash the check, and his untruthfulness on the witness stand constituted factors favoring incarceration. The pre-sentence investigation report shows that prior to the commission of the instant crime defendant had been arrested for possession of marijuana and disturbing the peace. Neither matter was brought to trial. The report also shows that after the commission of the instant crime, defendant was indicted for first degree murder and aggravated battery.

As we further noted in State v. McElveen and Allen, supra, a sentence imposed without the assignment of reasons will not be set aside automatically on appeal, but will be set aside for resentencing only if the record is inadequate or if the record clearly indicates the sentence is excessive. State v. Wimberly, 414 So.2d 666 (La.1982). In the present case, the trial court set forth the factors supporting and mitigating incarceration. Upon thoughtful consideration, it concluded that a term of imprisonment of six years out of a maximum sentence of ten years was proper, considering especially defendant’s lack of remorse, and his failure to identify his apparent co-conspirator in perpetrating the forgery: The trial court further mentioned having examined the PSI report, which indicated a “history of ... criminality” (LSA-C.Cr.P. art. 875) on the part of the defendant. Defendant could have been subjected to a fine of $5,000.00 in addition to the prison term but was not. The trial court further noted in imposing sentence that both the Sheriff and the District Attorney recommended the maximum sentence which the court declined to impose. The court noted that the defendant probably would not benefit from the possibility of rehabilitation if he were placed on probation. The record and the reasons given for sentencing both fully support the sentence imposed, and the sentence must be affirmed.

PATENT ERROR:

We have also reviewed the record for patent error. LSA-C.Cr.P. Article 920. The record is devoid of evidence that the trial court waited the required twenty-four hours after defendant’s motion for a new trial was denied before imposing sentence (LSA-C.Cr.P. Article 873) nor does the record indicate that defendant waived that waiting period. However, defendant does not argue or in any way show that he was actually prejudiced by the failure of the trial court to observe the waiting period. In State v. Brogdon, 426 So.2d 158 (La.1983), the Louisiana Supreme Court held that such failure on the part of the trial court is harmless error where the defendant does not show actual prejudice. We hold that the failure on the part of the trial court to observe the delay provided for in Article 873 was harmless error.

CONCLUSION:

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

AFFIRMED.

      . There is testimony in the trial transcript that a third person was in the company of defendant and Robinson. This third person waited in the car and drove off in defendant’s car when police arrived. Defendant refused to disclose the identity of this third person.

      . Defendant incorrectly designates Assignment of Error No. 3 as No. 2 in his brief.

      . At trial, defendant referred to the motion as a motion for a recess.


author: PONDER, Judge.

text:
    STATE of Louisiana v. Charles O. FAULKNER.
    No. 83 KA 0772.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied April 23, 1984.

      William R. Alford, Asst. Dist. Atty., Cov-ington, for appellee.
    Charles 0. Faulkner, in pro. per.

      Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant was found guilty of violating La.R.S. 14:30, murder in the first degree, by a twelve-man jury. The defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension.

Defendant’s counsel alleged seven assignments of error and defendant, after enrolling as co-counsel, alleged an additional error. These are: 1) the denial of a motion to suppress, 2) the denial of a motion to bar death qualification voir dire questions, 3) the reopening of the voir dire of a juror already sworn and the subsequent disqualification of the juror for cause, 4) and 5) the admission of defendant’s statements into evidence, 6) the state’s failure to produce Brady material, 7) the admission into evidence of the photograph of a pair of gloves, and 8) the sufficiency of evidence.

On January 28, 1982, Steve Radosti, an unmarried older gentleman, was found dead in his home. He had been shot in the head, stabbed twice in the abdomen and had sustained bruises in the head and neck area. His home had been ransacked and many items were stolen, including his truck.

The defendant testified that he and a friend had been hitchhiking from Mississippi to New Orleans, when Mr. Radosti gave them a ride and offered to let them spend the night at his house. Defendant’s friend killed Mr. Radosti at the victim’s home. They loaded many of the victim’s belongings into his truck and returned to Mississippi. The following day they burned the truck.

The defendant, accompanied by his father, turned himself in to the Sheriff's office in Meridian, Mississippi on February 1, 1982, and was initially arrested on other outstanding charges. He was taken to the Meridian police department the following day where he gave a statement regarding the murder, after waiving his rights.

Defendant first argues that the trial court erred in denying a motion to suppress evidence seized pursuant to a search warrant because the search warrant application was signed by a police officer who had no personal knowledge of the facts contained in the application.

An affidavit of a search warrant may be based on hearsay information and need not reflect the direct personal observations of the affiant. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), State v. Tesch, 431 So.2d 108 (La.App. 1st Cir.1983).

The informant was the chief of detectives and we find that his credibility is apparent from the face of the affidavit. See State v. Boksham, 370 So.2d 491 (La.1979). The chief based his conclusions on the following: defendant’s accomplice had admitted that he and the defendant got rid of a truck stolen from the victim, the accomplice stated that defendant had taken the victim’s truck to the location to be searched, the chief had received a report from the Sheriff’s office in Slidell that the victim had been murdered and specific items were stolen and items similar to those stolen from the victim had been seen by the chief when he arrested the accomplice on arson charges at the location to be searched.

The affidavit established probable cause and we find no error.

Defendant next argues that the denial of his motion to bar death qualification voir dire questions resulted in a jury composed of people who were biased in favor of conviction rather than a fair cross-section of the community.

There is no constitutional bar to the exclusion of jurors who state in advance of trial that they could not even consider returning a verdict of death or that their attitude about the death penalty would prevent them from making an impartial decision as to defendant’s guilt. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); State v. Drew, 360 So.2d 500 (La.1978), cert. denied 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979).

The three jurors who were excused for cause based on their view of the death penalty, stated that they would not return a death penalty no matter what the circumstance. Furthermore, the defendant did not receive the death sentence and therefore has no valid Witherspoon complaint. State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied 456 U.S. 945, 102 S.Ct. 2001, 72 L.Ed.2d 467 (1982). We find no error.

Defendant next argues that the court erred in allowing the State to reopen voir dire of a juror and in granting a challenge for cause after the juror had been previously accepted by both parties and sworn as a juror.

The juror, after being sworn, stated that his initial answers concerning the death penalty, on voir dire, were incorrect and that he could not return the death penalty regardless of the factual circumstances. The juror was excused for cause.

A juror can be challenged for cause, after being accepted by the challenging party, when the ground was unknown to the challenging party prior to acceptance. La.C.Cr.P. art. 795; State v. Marshall, 410 So.2d 1116 (La.1982).

The trial judge properly excused the juror under La.C.Cr.P. art. 798(2). The State’s use of all of its peremptory challenges does not affect the propriety of the challenge for cause in light of our finding that it was proper.

The defendant next argues that the trial court erred in allowing his statement to be introduced because one of the officers present could not identify the defendant in the courtroom, the statement was made under inducement, and it was tainted by a prior statement given by defendant prior to waiving his Miranda rights.

Although one of the officers who was present when the defendant gave his statement at the Meridian police station could not identify the defendant in the courtroom, the defendant was identified by another officer who was present. We find no error.

The deputy on duty when the defendant turned himself in did not give the defendant his Miranda rights and did not try to obtain a statement. When the defendant began discussing the murder, the deputy told the defendant he did not want to hear it. However, the defendant’s father explained the defendant needed to talk and the defendant proceeded.

The following day at the Meridian police department, after reading and waiving his Miranda rights, the defendant made a signed statement in front of the sheriff’s deputy he talked with the night before and a police officer.

On the night the defendant turned himself in, the sheriff’s deputy, a family friend, told defendant and his father that he would try to assist in finding an attorney and told defendant to tell the truth. This was after defendant’s father asked if he knew an attorney. The sheriff’s deputy did later provide the defendant’s father with an attorney’s name.

The police officer stated that on the following day he could have told defendant that things would be easier if the defendant told the truth, but he did not tell the defendant he would help him in any way.

Defendant’s father verified that his son gave a statement to the sheriff’s deputy without being asked. He also stated that the sheriff’s deputy told the defendant to tell the truth and that he would try to help. However, the deputy did not identify in what manner he could help.

Confessions obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, are involuntary and inadmissible as a matter of constitutional law. The state must prove beyond a reasonable doubt that the statement was made freely and voluntarily and not under the influence of inducements or promise. La.R.S. 15:451, La.C.Cr.P. art. 703, State v. Jackson, 414 So.2d 310 (La.1982).

We find that the vague promises to help are insufficient to negate the voluntary nature of defendant’s statements in light of his clear understanding of his Miranda rights and the trial judge’s discretion. See State v. Hernandez, 432 So.2d 350 (La.App. 1st Cir.1983).

We also find that the statement by defendant on the night he turned himself in was spontaneous and voluntary and not given as a result of police interrogation or compelling influence. It is admissible in evidence without Miranda warnings even though the defendant was in custody. State v. Lane, 414 So.2d 1223 (La.1982). There was no evidence of interrogation and the deputy even tried to prohibit the conversation.

Since these statements were not obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), they do not taint defendant’s subsequent confession.

Defendant next argues that the court erred in allowing into evidence a statement made by defendant regarding the burning of the victim's truck in Mississippi, in that the surprise testimony resulted in unwarranted prejudice. Defendant further argues that the statement was evidence of “other crimes.”

The statement in question was first made known to the State and the defendant during the course of the trial. It had been taken at the same time as the statement concerning the murder, but was transcribed separately. The trial judge admitted the statement, noting that it was made available to the state and defendant at the same time, and that defendant’s statement concerning the murder mentioned that the defendant burned the victim’s truck, the subject of the statement in question.

Although the state’s failure to comply with discovery procedures will not automatically demand a reversal, if the defendant is prejudiced by the failure to disclose, he is entitled to a reversal. State v. Mitchell, 412 So.2d 1042 (La.1982). We agree with the trial court’s reasoning and find no undue surprise or prejudice, particularly since the admission of the burning of the truck was also contained in the statement regarding the murder.

Other crimes evidence is normally inadmissible because of the prejudicial effect upon the accused’s constitutional presumption of innocence. State v. Morris, 362 So.2d 1379, (La.1978). However, we find no abuse of discretion, since in light of the record as a whole we cannot say that knowledge that the victim’s truck was burned would so enflame the jury that it would unjustifiably convict the defendant of murder. See State v. Montgomery, 432 So.2d 340 (La.App. 1st Cir.1983); State v. Vernon, 385 So.2d 200 (La.1980).

Defendant next argues that the trial court erred in denying his motion for a mistrial based on the State’s failure to furnish Brady material. Defendant argues that the state gave notice of evidence indicating that the defendant and his accomplice called a friend who came and picked them up, that the friend tried some “stuff”, and that they stole his truck when he went to sleep. The state also gave notice that the defendant told other friends not to say anything about the gun.

At trial the state’s witness testified that defendant did not know the victim as a friend, but instead rode with the victim when he was unable to reach a friend by phone. He also testified that defendant had stated, “do not get rid of the gun,” and that the prosecution was aware of the inconsistencies prior to his testimony.

■ The trial court ordered the state to allow defendant to see its notes and denied a mistrial, finding substantial compliance with the continuing obligation to furnish Brady material, if any was involved in the inconsistencies.

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good or bad faith of the prosecution. The test for materiality is whether the omitted evidence creates a reasonable doubt that would not otherwise exist. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Hicks, 395 So.2d 790 (La.1981).

We find that any nondisclosure did not deprive defendant of a fair trial and was not material to the guilt or punishment of the defendant.

Defendant next argues that the admission into evidence of a picture of a pair of gloves in the victim’s residence prejudiced his right to a fair trial since they were unconnected, extraneous and irrelevant evidence. The defendant’s statement and his testimony indicated that he wore gloves while he loaded the victim’s belongings into the truck. While the gloves were never identified as the ones that defendant used, we find that the error, if any, is harmless.

Defendant’s last argument relates to the sufficiency of evidence to prove murder in the first degree.

To show the specific intent required for first-degree murder the state had to prove that the defendant actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10. Specific intent, however, may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Holmes, 388 So.2d 722 (La.1980). The test of the sufficiency of circumstantial evidence is that the circumstantial evidence presented at trial, assuming every fact to be proved that the evidence tends to prove, must exclude every reasonable hypothesis of innocence. State v. Shapiro, 431 So.2d 372 (La.1983).

There is no doubt that defendant was at the victim’s house when he was killed and that he participated in the removal of the victim’s belongings from his house.

Other evidence indicated that the phone lines had been cut or broken, that the decedent was found with a pillowcase twisted around his neck, and a towel wrapped through and around his arms, and that blood trailed throughout the house. The defendant further testified that he went along with his accomplice’s story that they “shot the victim, buried him alongside the road and took his truck.” He also testified that the victim did not use a crutch, although one was found near the body and the victim’s neighbor stated that the victim was using crutches the evening before the murder.

The evidence further indicated that the defendant never tried to leave the scene of the crime or prevent any of the criminal activity.

We find, after assuming every fact to be proved that the evidence tends to prove, that every reasonable hypothesis of defendant’s innocence is excluded, that the defendant actively desired the criminal consequences and that he was concerned in or aided and abetted in the murder.

For these reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . While the defendant's counsel objected to the murder statement as evidence of "other crimes”, no such objection was made on appeal.

      . This was the information contained in the prosecution's notes, except the notes stated that the defendant told friends not to say anything and not to get rid of the gun.


author: GUIDRY, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Jessie James FREEMAN, Defendant-Appellant.
    No. Cr83-407.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ Denied May 4, 1984.

      Anthony Walker, Saunders & Walker, Ville Platte, for defendant-appellant.
    Richard W. Vidrine, Asst. Dist. Atty., Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

Defendant, Jessie James Freeman, was originally charged by grand jury indictment with the first degree murder of Of-fery Wilson and the attempted first degree murder of Felton Roberts, violations of LSA-R.S. 14:30, 14:30.1 and 14:27 respectively. Subsequently, the State filed an amended bill of information charging the defendant with second degree murder, a violation of LSA-R.S. 14:30.1 and attempted second degree murder, a violation of LSA-R.S. 14:30.1 and 14:27.

At trial, the twelve person jury found the defendant guilty of second degree murder and attempted manslaughter by a vote of 10 to 2 on count number 1 and 11 to 1 on count number 2. The trial judge sentenced the defendant to life imprisonment without benefit of probation, parole or suspension of sentence for the second degree murder conviction and a term of six years at hard labor for the attempted manslaughter conviction with the sentences to run concurrently.

FACTS

On September 30, 1982, the defendant, Jessie James Freeman, after attending a Ville Platte high school athletic event went to a bar by the name of Joe’s Place located on Dr. Carver Street, in an area known as the “front” in Ville Platte. There he was approached by Offery Wayne Wilson who directed hostile statements to the defendant. The defendant declined to fight and shortly thereafter left Joe’s Place and proceeded across the street to Soileau’s Club. At Soileau’s Wilson again approached the defendant, directing hostile statements to him. The defendant declined a fight with Wilson, who left the club. As closing time approached, the lights came on and Freeman proceeded to exit the club. Amongst the crowd gathered on the street after the clubs closed, were the defendant, Felton Roberts and Offery Wayne Wilson. The circumstances surrounding this last encounter are in dispute. However, the defendant admittedly drew his knife and stabbed Wilson and then cut Felton Roberts. Offery Wayne Wilson died as a result of the stab wounds inflicted by Jessie James Freeman.

Defendant appeals his conviction of the second degree murder of Offery Wayne Wilson and his conviction of the attempted manslaughter of Felton Roberts on the basis of the following seven assignments of error:

1. The trial court erred in that defendant was prejudiced by the State’s failure to comply with the disclosure requirements of Article 716 of the Code of Criminal Procedure.
2. The trial court erred in that certain evidence in support of defendant’s case was improperly held to be inadmissible.
3. The trial court erred in that the defendant was prejudiced by the State’s failure to comply with the disclosure requirements of Article 719 of the Code of Criminal Procedure.
4. The trial court erred when it improperly instructed one of the defendant’s witnesses to control his manner upon the stand thereby hampering the witness’s presentation of his testimony.
5. The trial court erred in that improper redirect examination by the State upon one of its own witnesses was permitted by the court to the prejudice of the defendant.
6. The trial court erred in that the verdicts of the jury are inconsistent with the law and evidence as presented during the trial.
7.The trial court erred in that the two verdicts returned by the jury were inconsistent with each other and should not be permitted.

Assignment of error no. 4 was not briefed and, consequently, is deemed abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

ERRORS PATENT

Although defendant makes no complaint with regard to the method employed by the State in instituting this prosecution, we deem it necessary to make the following observations.

The record reflects that the defendant was initially charged with first degree murder and attempted first degree murder by a grand jury indictment. The indictment was dated October 25, 1982. On January 24, 1983, the State amended the charge to second degree murder and attempted second degree murder. The amendment took place by bill of information before the trial began.

LSA-C.Cr.P. Art. 382 provides in pertinent part:

“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.”

Second degree murder is a crime punishable by life imprisonment and, therefore, is a crime the prosecution of which must be instituted by grand jury indictment. State v. Davis, 385 So.2d 193 (La.1980). Consequently, the issue presented here is whether the amendment by bill of information was proper when institution of a second degree murder charge must be made by a grand jury indictment.

In State v. Davis, supra, the district attorney amended an indictment from first degree murder to second degree murder. The Louisiana Supreme Court held that this was permissible. The court did not find that the amendment amounted to a reinstitution of prosecution. Hence, the defendant’s constitutional right to have the crime he was charged with instituted by a grand jury indictment was not violated.

The Court found it necessary to distinguish their holding in Davis from the case of State v. Donahue, 355 So.2d 247 (La.1978). In Donahue, the court found error in the district attorney’s nolle prossing a grand jury indictment for the crime of first degree murder and a later reinstitution of prosecution by bill of information charging the defendant with the crime of second degree murder.

The instant case is very similar to State v. Davis, supra, the only difference being that the amendment of the initial charge in this case took place by bill of information instead of by oral motion in open court in the presence of the accused and entered on the minutes of court prior to the beginning of trial. The grand jury indictment was not nolle prossed in this case as occurred in State v. Donahue, supra.

The elements of second degree murder applicable to the defendant’s case are also applicable to a first degree murder charge, i.e., “specific intent to kill or to inflict great bodily harm.” The grand jury indicted the defendant for first degree murder, therefore when the grand jury considered the evidence relevant to the elements of first degree murder and decided to indict defendant with that crime, it necessarily considered the evidence relevant to all the essential elements of second degree murder. State v. Davis at 197.

Although the issue presented appears to be res nova, the rationale employed by our Supreme Court in State v. Gilmore, 332 So.2d 789 (La.1976) prompts us to conclude that the procedure followed by the State in the instant case, i.e., the filing of a bill of information charging the defendant with the crime of second degree murder and his re-arraignment on that charge, amounts to nothing more than a formal amendment of the grand jury indictment which charged him with the crime of first degree murder and which was still extant. We find the following quote from State v. Gilmore, supra, at page 794 persuasive:

“Defendant concedes that without amending the indictment the State could have abandoned the charge of murder in the first degree and proceeded to trial on the lesser charge of murder in the second degree. La.C.Cr.P. art. 61; State v. Doucet, 177 La. 63, 147 So. 500 (1933); State v. Edwards, 287 So.2d 518 (La.1973). In State v. Doucet, supra, the accused was charged with murder but the State abandoned that charge and elected to go to trial on the charge of manslaughter. This Court approved the procedure, saying:
“ * * * The charge of manslaughter is included in that of murder, being a crime of the same generic class as murder, but one of a lesser degree. In such cases the state may abandon the charge of the greater crime and proceed with the prosecution of the lesser, and no formal amendment of the indictment is necessary for that purpose. A motion in open court in the presence of the accused and entered on the minutes prior to the beginning of the trial is sufficient. State v. Bourgeois, 158 La. 713, 104 So. 627. State v. Kelly, 176 La. 405, 146 So. 6.” 147 So. at 501.
Likewise, the charge of murder in the second degree is a charge of the same generic class as murder in the first degree, although it is a lesser grade of the offense. A verdict of guilty of second degree murder is responsive to the charge of first degree murder. La.C. Cr.P. art. 814, as amended by Acts 1973. Under these circumstances, a motion to proceed on the reduced charge made in open court in the presence of the accused and entered on the minutes would have been sufficient to amend the indictment. We perceive no substantial difference in the procedure followed by the district attorney in this case and think it would be inconsistent to hold that he could not accomplish formally what could have been done without formality. We therefore conclude that the district attorney was inherently empowered to amend the indictment to charge a lesser included offense, although there was no specific codal authorization for this procedure.” (Emphasis ours)

The procedure employed by the State in this case, although irregular, was accomplished in open court in the presence of the accused and entered in the minutes and amounted to nothing more than a formal amendment of the grand jury indictment. For these reasons, we find no error in the method employed by the State in the institution of this prosecution.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge committed reversible error in failing to exclude certain evidence as a sanction for the State's failure to comply with the disclosure requirements of Article 716 of the Louisiana Code of Criminal Procedure.

Defendant contends he was prejudiced by the State’s failure to comply with the disclosure requirements of Article 716 of the Code of Criminal Procedure. In particular, the defendant argues that the State failed to comply with LSA-C.Cr.P. Art. 716(B).

Defense counsel filed a motion for discovery on November 16, 1982. Paragraph two of the motion requested the following:

“The State of Louisiana to inform defendant of the existence of any oral confessions or statements of any nature, made by defendant, which the state intends to offer in evidence at the trial, with the information as to when, where and to whom each oral confession or statement was made.”

The language used in this paragraph is synonymous with LSA-C.Cr.P. Art. 716(B). The trial judge ordered the State to respond to defendant’s discovery motion by December 3, 1982.

The State replied to the motion for discovery by responding to paragraph two as follows:

“The defendant stated to Officer Joe Toussant at the Ville Platte Police Department at about 1:40 a.m. on October 1, 1982, in essentially these words T cut them because they were prouting me’.” (sic)

No other answers were ever supplied in reply to this motion.

At trial, through direct examination by the State, Patrick Alfred, Robert Fontenot and Kathleen Durgin testified as to certain statements made by the defendant at the scene of the incident. This testimony was admitted over defendant’s objection to their admissibility on the basis of the State’s failure to comply with the motion for discovery. The testimony complained of is as follows:

TESTIMONY OF PATRICK ALFRED
“Q. When he (the defendant) came back out, what did he do?
A. He had a knife in his hand and he told — he had his knife like that and he say, ‘If anyone of ya’ll tries something, I’m going to kill ya’ll.’
Q. What did he say? Say it again.
A. He says like it to the crowd ‘If anyone of ya’ll tries something, I’m gong to kill ya’ll.’ ”
TESTIMONY OF ROBERT FONTENOT
“Q. After that happened, what did Jessie James Freeman do?
A. Went up to Totie and hollered, ‘You too?’ ...”
(Totie is a nickname for Felton Roberts. This testimony is to the effect that the statement was made just prior to stabbing Felton Roberts.)
TESTIMONY OF KATHLEEN DURGIN
“Q. What happened to Felton Roberts, if anything?
A.Well after he had got through with Wayne, he say, ‘Where the other nigger at?’ ”

In arguing against the admissibility of the above testimony, the defendant relied on a previous ruling of the trial judge. On a motion by the defendant, the trial judge ruled that evidence of certain other statements made to certain police officers could not be admitted at trial for any purpose because of the State’s failure to comply with the provisions of Article 716(B), even though notice of the State’s intention to introduce the statements had been furnished the defendant on the day of trial pursuant to LSA-C.Cr.P. Art. 768.

The State on the other hand contended that the statements at issue in this assignment of error were not discoverable for the following reasons: (1) they constituted part of the res gestae; (2) they were made prior to the commission of the crime and therefore were not inculpatory statements; and, (3)they were not made to police officers. The trial judge overruled defendant’s objection without comment.

LSA-C.Cr.P. Art. 716 provides as follows:

“A. Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control, or knowledge of the district attorney.
B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.
C. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.”

For the following reasons, we find merit in the defendant’s contention that the State failed to comply with the discovery provisions of Article 716(B).

The fact that the statements may form part of the res gestae is of no moment. The res gestae rule has its existence as an exception to the hearsay rule. Contrary to the State’s argument, a defendant is entitled to discover the existence, if not the contents, of res gestae statements under LSA-C.Cr.P. Art. 716(B). State v. Jones, 408 So.2d 1285 (La.1982).

In its contention that the statements were made prior to commission of the crime and are therefore not discoverable under Article 716(B), the State apparently mistakenly relies on the jurisprudence limiting the term “inculpatory statement” as used in LSA-C.Cr.P. Art. 768 to admission of facts made by the defendant after the crime has been committed. The term “statement of any nature” as used in LSA-C.Cr.P. Art. 716(B), which is clearly a broader term, has not been so limited. We therefore find no merit to this argument.

The State’s final contention is that Article 716(B) applies only to statements made to police officers, relying on State v. Hooks, 421 So.2d 880 (La.1982). In State v. Hooks, supra, the Louisiana Supreme Court stated as follows:

“The State is not required to give notice or to divulge the contents of an oral statement made by the defendant to a private citizen when the State plans to use that evidence at trial. State v. Joseph, supra.” at 885.

This quote is not a correct statement of the holding in State v. Joseph, 379 So.2d 1076 (La.1980). In our opinion, this statement in State v. Hooks, supra, is inadvertently overbroadly stated dicta. Under the holding in State v. Quimby, 419 So.2d 951 (La.1982) and State v. Bonanno, 373 So.2d 1284 (La.1979), although defendant is not entitled to discover the substance of statements made to a private citizen, on proper motion, defendant is entitled to discover the existence of the oral statement with corresponding information relative to when, where and to whom such statement was made.

LSA-C.Cr.P. Art. 729.5 provides sanctions for a violation of the discovery rules. It provides in pertinent part as follows:

“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.”

This article authorizes a wide range of alternative sanctions for failure of a party to comply with court ordered discovery. The imposition of these sanctions is within the discretion of the court and therefore a showing of prejudice by virtue of the court’s adverse ruling is required before reversal of a conviction is in order. State v. Norwood, 396 So.2d 1307 (La.1981). We must therefore determine whether and to what extent the defendant may have been prejudiced by the State’s failure to provide the discovery to which he was entitled.

In the instant case, the defendant admitted that he stabbed Wilson and Roberts and there were numerous eyewitnesses conclusively establishing that fact. The only material issue involved in this case is the proof of lack of self defense or of provocation. The importance of the statements in question are therefore limited to the events leading up to, and the circumstances surrounding, the stabbings for a determination of self defense or provocation. In this connection, we note that although the import of the statements in question are somewhat ambiguous and that their character is not necessarily inculpato-ry, a jury could infer, at least from the last two statements, a lack of provocation or of self defense. Nonetheless, the record indicates that the defense was prepared and did present evidence which contradicted any adverse inference which might be drawn from the statements in question. Even if the impact of the statements is adverse to the defendant’s case, it does not necessarily follow that prejudice resulted from the State’s failure to notify the defendant of their existence and the State’s intent to use them. As aforestated, the defendant was not entitled to discovery of the substance of the statements but only discovery of their existence with corresponding information relative to when, where and to whom such statements were made.

The defendant contends that he was prejudiced, in that, the existence of such statements came as a complete surprise to the defense and that the defense was lulled into a misapprehension of the strength of the State’s case. In support of this argument, defendant relies on State v. Davis, 399 So.2d 1168 (La.1981), in which the court was concerned with the effect the failure to comply might have upon the defendant’s evaluation of the strength of the State’s case and the possibility of the defendant entering into a favorable plea bargain. We find it highly unlikely that the disclosure by the State of the mere existence of statements made by the defendant to the crowd at the time and place of the stabbing, which the State intended to produce, would have made one iota of difference in defendant’s decision to enter into a plea bargain.

In Davis, supra, the evidence which the State had improperly failed to disclose consisted of concrete evidence, fingerprint evidence, which constituted an important link in the State’s circumstantial evidence case. In addition, the court relied on the fact that lack of discovery prevented the defendant from securing his own fingerprint expert. Defendant does not support any other way in which discovery would have altered the preparation of his case and we can think of none. As aforestated, the record reflects that defendant was prepared and did offer evidence contradicting the statements in question. We therefore find no reversible error in the trial judge’s erroneous ruling.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in excluding evidence which was favorable to his defense. In particular, the defense sought to establish, through cross examination of one of the State’s witnesses, the existence of occasional “bad blood” between his neighborhood and the neighborhood where the victims resided. The defendant argues that the evidence was offered to establish the tempo of the crowd and to show that hostility was directed at the defendant not only from the victims but also from the surrounding crowd. This evidence he suggests would have supported his position that he was acting in self-defense.

To be admissible in a criminal proceeding, evidence must be relevant to a material issue. LSA-R.S. 15:435. Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and intent. Facts necessary to be known to explain a relevant fact, or which supports an inference by such fact, are admissible. LSA-R.S. 15:441. The relevancy of evidence is determined by the purpose for which it is offered. LSA-R.S. 15:442.'

The following line of questions and objections indicates the evidence that the trial judge held inadmissible:

“Q. Okay. Now, you live on West Peach Street. That’s on the south side of town?
A. Yeah.
Q. And that’s close to the front?
A. No.
Q. Is it what they call the woods?
A. Yeah.
Q. You live in the woods, huh? Now, you hang out around the front. Is that correct?
A. Well, every now and then.
Q. Every now and then. But usually, when you go out, you hang out around the front, though, huh?
A. Yeah.
Q. Okay. Now, uh, Jessie’s from across town. That’s correct?
A. Yeah.
Q. All right. Sometimes there’s — is there a little bit of bad blood between the people from across town and people in the woods?
OBJECTION:
BY MR. ROZAS, Assistant District Attorney:
Objection, Your Honor, as to bad blood between the two (2) sections of town. It’s irrelevant to this.
BY THE COURT:
Sustained.
CONTINUED BY MR. WALKER:
Q. Sometimes when there’s a fight in the woods and uh, there’s somebody from the woods, that neighborhood, and there’s somebody from across town, who does the crowd pull for?
OBJECTION:
BY MR. ROZAS, Assistant District Attorney:
Same objection, Your Honor. Irrelevant.
BY THE COURT:
Sustained.
BY MR. WALKER, counsel for Defendant:
Your Honor, I’m trying to show that the tempo of the crowd that night, though, what was going on and what was being said prior to this type of questioning — line of questioning.
BY MR. ROZAS, Assistant District Attorney:
The crowd’s not on trial. Jessie James Freeman is, Your Honor.
BY THE COURT:
I’ve already ruled.”

A trial judge’s determination regarding the relevancy of offered testimony is entitled to great weight and should not be overturned absent a clear abuse of discretion. State v. Stramiello, 392 So.2d 425 (La.1980).

Our inquiry is thus whether the trial judge abused his discretion in finding the particular evidence excluded irrelevant. Defendant’s contention is that testimony from a third person as to the occasional existence of bad blood between people from across town and people from the “woods” would tend to show that the particular crowd that night was hostile and defendant’s apprehension of losing his life or receiving great bodily harm was reasonable. We find the relevancy of this evidence, if any, to be extremely weak and remote.

When a defendant pleads self-defense, his state of mind becomes a material issue. Here the question was not asked of the defendant but of a third person and did not concern the particular crowd that night, but rather some nebulous group of people known as a neighborhood.

We also note that more direct evidence that the particular crowd including the victims, prior to the stabbings exhibited hostility toward the defendant because he was from across town, was admitted at trial. This evidence had far more probative value to defendant’s claim of self-defense than evidence of “bad blood” among certain neighborhoods. Consequently, it cannot be said that the trial judge abused his discretion in ruling this evidence irrelevant.

ASSIGNMENT OF ERROR NO. 3

Defendant urges that the trial judge committed reversible error in admitting the testimony of Dr. McCormick, a pathologist who conducted the autopsy on the body of Offery Wilson, over defendant’s objection that the State failed to furnish the autopsy report pursuant to LSA-C.Cr.P. Art. 719, which provides as follows:

“Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial.”

The record reveals that defendant requested discovery of evidence listed under Article 719 and the State was ordered to comply. The State’s response failed to include the autopsy report or its results.

The defendant contends that the State’s failure to include the report or its results constitutes a violation of Article 719. The State, on the other hand, contends that discovery under Article 719 is applicable only when the State intends to evidence the results by introduction of the report and not by the testimony of the examiner or tester.

This argument was presented in State v. Arnaud, 412 So.2d 1013 (La.1982), which is relied on by the defendant. However, a reading of that case indicates that the court did not hold that the State’s action in that case was a violation of Article 719. The court sidestepped the issue and assumed a violation for the purpose of addressing the issue of the remedies available under LSA-C.Cr.P. Art. 729.5(A).

We see no reason to sidestep the issue. Under Article 719, the result or reports of physical examinations and/or scientific tests made in connection with or material to the case that are exculpatory or intended for use at trial are clearly subject to discovery. However, LSA-C.Cr.P. Art. 719 does not require the State to present an item of evidence to the defendant but instead requires that the State allow defendant access to the covered information. State v. Williams, 438 So.2d 1212 (La.App. 3rd Cir.1983).

We consider that the proper response to a motion for discovery pursuant to Article 719 is a statement informing the defendant of the existence of the covered information and its accessibility. In this respect, we conclude that the State’s failure to disclose the existence of the autopsy report was a failure on the part of the State to comply with the order issued pursuant to defendant’s motion for discovery. However, as aforestated in assignment of error number 1, the failure of the State to comply with court ordered discovery will not automatically require a reversal. The circumstances of the case must be examined to determine whether defendant was prejudiced and if the trial judge abused his discretion. For the reasons which follow, we find that the defendant suffered no prejudice as a result of the State’s failure to inform defendant of the existence of the autopsy report.

The defendant asserts in brief that the results of the autopsy contained exculpatory evidence, in that, through Dr. McCormick’s testimony, it was established that two of the wounds could have been inflicted by one stab. Besides the fact that this is opinion testimony and not technically the result of the autopsy, defendant cannot complain that he was prejudiced by the introduction of exculpatory evidence. State v. Williams, supra.

Defendant also asserts the same prejudice alleged in assignment of error number 1, i.e., he was prevented from properly evaluating the strength of the state’s case. Suffice it to say that there is nothing in the record which would support this conclusion.

Further, there is no indication in the record that any attempt was made by defendant to obtain a copy of the coroner’s autopsy report or that he was denied access thereto. In some cases, the failure to inform the defendant of the existence of scientific tests or physical examinations might effectively prevent access by the defendant to pertinent information. This is not one of those cases. By statute, coroners are required to perform an autopsy in any death case, where there is a reasonable probability that a criminal statute has been violated, LSA-C.Cr.P. Art. 102, and the coroner is required to make a written report to the district attorney within ten days after the completion of his investigation. LSA-C.Cr.P. Art. 105. Therefore, any adverse effect resulting from Dr. McCormick’s testimony is attributable to the defendant’s failure to make an effort to obtain a copy and not to the State’s failure to inform him of that which he certainly knew or should have known existed. The trial judge’s refusal to exclude the evidence was a proper exercise of his discretion.

ASSIGNMENT OF ERROR NO. 5

Defendant urges the trial court erred in allowing the State to conduct improper redirect examination of one of its witnesses to his prejudice. Defendant contends that the State was allowed to elicit testimony from Officer Jack Aucoin on redirect that was not gone into on cross-examination. The record reveals that the question objected to was whether the defendant had made a statement to the police, after being taken into custody, about Offery Wilson’s telling the defendant that “I have something better than your knife.” Over objection of defense counsel, the officer replied that the defendant had made no such statement to him.

The pertinent provision on this issue is LSA-R.S. 15:281. It provides:

“The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity be not denied to recross on the new matter brought out on the redirect.”

A review of the defense counsel’s cross-examination of the officer indicates that, although the particular statement asked on redirect was not gone into on cross-examination, there were a number of questions asked about the defendant’s statements to the officer about what had transpired during the incident in question. Hence, it appears that the redirect examination was confined to the subject matter of the cross-examination as mandated by LSA-R.S. 15:281. The trial court has great discretion in controlling the redirect examination of witnesses which will not be overturned on appeal absent an abuse of discretion. State v. Chapman, 410 So.2d 689 (La.1982). The record does not reveal an abuse of the great discretion accorded the trial judge. Consequently, this assignment of error lacks merit.

ASSIGNMENT OP ERROR NO. 6

Defendant contends the verdicts of the jury were inconsistent with the law and evidence presented during the trial. Basically, defendant is asserting that the State failed to prove the essential elements of the crimes beyond a reasonable doubt.

A claim of insufficient evidence is judged by whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Brown, 414 So.2d 726 (La.1982); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In particular, the defendant argues that in viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found that the State had proven lack of self-defense or provocation beyond a reasonable doubt.

It is clear that on both the conviction of second degree murder and attempted manslaughter the State has the entire and affirmative burden of proving beyond a reasonable doubt that the homicide (or attempted homicide) was not perpetrated in self-defense. State v. Savoy, 418 So.2d 547 (La.1982). However, defendant apparently argues that on the conviction of second degree murder, the State also has the affirmative burden of proving that the homicide was not perpetrated in the heat of passion. We do not agree.

The presence of passion or provocation is not an essential element of the crime, rather it is a mitigatory factor in the nature of a defense. State v. Temple, 394 So.2d 259 (La.1981).

In State v. Peterson, 290 So.2d 307 at 310 (La.1974), the Supreme Court determined that the presence of passion is in the nature of a defense and that the additional “element” of lack of passion need not be proven by the State in a murder prosecution. In so concluding, the court stated:

“Additionally, a review of our manslaughter statutes (that statute in effect at the time of this defendant's trial and the new manslaughter statute) reveals that the “sudden passion” or “heat of blood” provisions operate in a mitigatory fashion in a murder prosecution, not a great deal unlike provisions in the criminal law of other jurisdictions1 where such factors are considered to be “affirmative defenses” to a charge of murder. Our manslaughter statute, R.S. 14:31, provides: “ * * * Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed * * (Emphasis supplied.)
The obvious difference between Connecticut’s “extreme disturbance” defense to murder and our “passion” “defense” is that in this jurisdiction “passion” may be inferred by the jury from the evidence adduced upon trial by the State, there being no requirement in our law that these factors be affirmatively established by the defendant. Nevertheless, it is instructive to view this factor, which in our jurisdiction is solely within the province of the jury as ultimate judges of law and fact, as a factor in the nature of a defense to the crime of murder.” (footnote omitted)

The remaining inquiry is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the homicide was not perpetrated in self-defense. The evidence concerning the degree of apprehension the defendant faced was conflicting. The jury’s determination depended, on the most part, on its assessment of the credibility of the witnesses. There was testimony that defendant walked away from the scene and returned after conferring with his brother before proceeding to punch and stab Wilson and Roberts. The record, therefore, supports a conclusion that the defendant could have escaped the danger by fleeing from the scene once he had walked to the side of the club to meet his brother instead of returning. Although there is no unqualified duty to retreat, the possibility of escape is a recognized factor in determining whether or not a defendant has a reasonable belief that deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982). It appears that the State presented sufficient evidence for one to conclude that the defendant could have saved himself from the danger without resorting to deadly force. State v. Brown, supra.

For these reasons, we find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the two verdicts returned by the jury were inconsistent with each other and should not have been permitted. He argues that the two verdicts arise from the same event and therefore should have been consistent.

In State v. Watson, 397 So.2d 1337 (La.1981), the Louisiana Supreme Court stated:

“Normally, jurors’ reasoning processes may be assailed only on the ground that the evidence adduced at trial was legally insufficient to support their finding of guilt; other inquiries into the deliberations of a properly instructed jury are generally frowned upon (as, for example, where the jury returns a lesser verdict despite the apparent sufficiency of the evidence to support conviction of a greater offense).”

As noted in addressing assignment of error number 6, it appears the State adduced sufficient evidence at trial to support verdicts of guilty of second degree murder and attempted second degree murder. In light of State v. Watson, supra, the jury’s return of a verdict of guilt of attempted manslaughter instead of attempted second degree murder was well within their province. Consequently, this assignment of error lacks merit.

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

AFFIRMED.

DOMENGEAUX, J., concurs and assigns written reasons.

DOMENGEAUX, Judge,

concurring.

I disagree with the majority opinion insofar as it suggests that Article 716(B) applies to private citizens. The Louisiana Supreme Court has made it clear that it does not. State v. Hooks, 421 So.2d 880 (La.1982); State v. Joseph, 379 So.2d 1076 (La.1980).

Additionally, as I have repeated in many previous cases, I do not feel that the Jackson v. Virginia rationale should be applicable in review of criminal cases in Louisiana.

      . LSA-R.S. 14:20 provides:
      “A homicide is justifiable: (1) when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger ...