author: MILLS, Judge. WENTWORTH, Judge,

text:
    Bobby NELSON, Appellant, v. DAVY McKEE, INC., Appellee.
    No. AU-495.
    District Court of Appeal of Florida, First District.
    March 8, 1984.
    Theodore N. Taylor, Plant City, for appellant.
    J. Allen Bobo of Holland & Knight, Tampa, for appellee.
   MILLS, Judge.

In this workers’ compensation appeal, Nelson contends that the deputy’s finding that his right to wage-loss benefits terminated as of 6 April 1982 was not supported by competent substantial evidence. We do not agree and affirm.

It is undisputed that on 16 October 1980, while employed by McKee, Nelson injured his shoulder; that he was treated by Drs. Sklenicker and Williamson; that he reached MMI on 1 October 1981; that he sustained a four percent physical impairment; that he was paid TTD benefits for the periods of 28 October 1980 through 2 February 1981 and 28 February 1981 through 9 September 1981; that his medical bills were paid by the employer/carrier (E/C); that on 6 April 1982, while employed by Buccaneer, he injured his back; that he was treated by Dr. Martinez; and that Dr. Martinez found no connection between the shoulder injury and the back injury.

Nelson stated that after recovering from the back injury in June 1982 he was forced to leave three jobs because of shoulder problems; however, Dr. Martinez found no disabling abnormalities. In fact, Dr. Martinez saw him in January 1983 and at that time he complained of back pain only.

The testimony of Nelson and Dr. Martinez was conflicting. The deputy resolved the conflict against Nelson. This was his function. We will not disturb the deputy’s finding because it was supported by competent substantial evidence.

Our decision in this case does not intend to cut off future wage loss claims which may be permitted by the act and not barred by the statute of limitations.

AFFIRMED.

McCORD, GUYTE P., Jr., (Ret), Associate Judge, concurs.

WENTWORTH, J., concurs with written opinion.

WENTWORTH, Judge,

concurring.

I agree that the record supports affirmance of the denial of wage loss benefits between April 6, 1982, and the date of hearing upon this claim for a 1980 accident. The order awarded benefits only for the earlier periods in question and therefore, in one sense, the claimed benefits were properly “terminated as of April 6, 1982.” In affirming the determination against proof of causal relation for those wage losses, however, we need not and should not approve the absolute terms of the deputy’s further broadly stated conclusion that the April 6 accident in another employment “cut off any further duty owed by” appel-lee. That conclusion is properly applied only to the specific wage loss periods in question, so as to preserve, as noted by the majority, for future resolution any further wage loss claims permitted under the law for the accident on which this claim against appellee was based.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. James Louis HUMPHREY.
    No. 82-KA-2141.
    Supreme Court of Louisiana.
    Jan. 16, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Jr., Dist. Atty., Eugene Bouquet, Robert R. Bryant, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Richard P. Ieyoub, Thomas L. Lorenzi, Lake Charles, for defendant-appellant.
   CALOGERO, Justice.

In this appeal following a jury’s finding the defendant guilty of two counts of manslaughter, for the reasons which follow, we affirm the defendant’s conviction and sentence on each count to fifteen years at hard labor with the sentences to run consecutively.

This case has had a somewhat lengthy procedural history. The matter first came to this Court on a pre-trial writ which was granted in order to decide whether evidence of prior offenses would be admissible. In State v. Humphrey, 381 So.2d 815 (La.1980), we decided that evidence of simple batteries committed upon the same victims on April 25, 1978, three days before the fatal April 28, 1978, beatings was admissible. Humphrey's case was then remanded to the district court for trial on the merits. Thereafter he was convicted and sentenced to fifteen years at hard labor on each count of manslaughter, with the sentences to run consecutively. Defendant appealed his conviction and sentence. The conviction was conditionally affirmed by this Court pending disposition on remand for the trial court’s consideration of the proffered evidence of a polygraph examination and for a trial court ruling on a motion for a new trial, to be accomplished prior to resentencing. State v. Humphrey, 412 So.2d 507 (La.1981). A rehearing was granted. The original opinion was reinstated. Accordingly a hearing on the motion for a new trial was conducted at which the trial court received evidence of Humphrey’s post-verdict polygraph examination and the newly discovered evidence of a polygraph examination administered about one year prior to the trial on the merits to one Mona Brouchet, the mother of the deceased infant children. At the hearing’s conclusion the trial court denied the motion for a new trial and resentenced defendant to fifteen year terms at hard labor on each count, to run consecutively. Defendant appeals the trial court’s ruling and the reimposed sentence contending that the trial court erred in denying his motion for a new trial and that the sentence he received was excessive. Upon review and for the reasons which follow, we affirm both his conviction and sentence.

The facts of this case are the following:

James Humphrey and his common law wife Mona Brouchet lived together in Lake Charles with their two infant daughters; Janice, age 22 months and Latasha, age 9 months at the time of their death. On Friday, April 28, 1978, after feeding both girls, Mona Brouchet left them at home with Humphrey allegedly around 6:00 p.m. while she spent the evening with other family members at the home of Humphrey’s father. Shortly after Mona left, Joseph Breaux, a seven year old neighbor saw Janice outside alive. Around 9:00 p.m., Humphrey’s sister, Della Lane, came to the house but did not enter when she saw Humphrey asleep on the bed with the children. Sometime after 10:00 p.m., the defendant woke up and apparently thought something was wrong with the children. He walked to the park about two blocks away. After a while in the park, he met a friend Howard, and told him that Mona had done “something bad, bad, bad” to the children and that he was afraid that he might go to jail for it. Around 11:00 p.m. Humphrey’s relatives drove past him in the park, stopping briefly to tell him that they had dropped Mona off at the house. Humphrey and his friend Howard walked back to the house. Allegedly when Humphrey saw Mona smiling, he assumed that the children were all right. The three adults played cards without discussing the children. However Mona allegedly checked the girls at some point for wetness or a fever. Howard left sometime after midnight. Shortly thereafter Humphrey and Mona went to sleep.

Both awoke around eight o’clock the following morning. Humphrey offered to go to the store while Mona stayed at home to “clean up” the children. Allegedly it was then that Mona discovered that something was wrong with them and went, at Humphrey’s instruction, to a neighbor’s to call for assistance.

After trial on the merits, a jury found Humphrey guilty of two counts of manslaughter in connection with the deaths of his infant daughters, Janice and Latasha Brouchet.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends that the trial court erred as a matter of law in denying his motion for a new trial. This contention originates in the administration of two polygraph examinations.

Subsequent to his guilty verdict and sentence and in connection with his motion for a new trial, Humphrey requested that he be administered a polygraph examination. This request was denied, but with remarks by the sitting judge that polygraph results might be considered in a later motion for a new trial, were Humphrey to have a polygraph examination performed at his own expense. Accordingly, defense counsel arranged for a polygraph examination to be administered to defendant James Humphrey, in DeRidder, Louisiana by Joe Bartlett, chief deputy with the Beauregard Parish Sheriff’s Department and a court-qualified expert in polygraph examinations. The results indicated that Humphrey was not being deceptive in his answers. What happened thereafter is summarized at 412 So.2d 517 as follows:

When the trial judge was not available on the last day for filing of the appeal, defendant requested another district judge to hear and pass on his motion proferring the polygraph examination. Defendant sought to have the proffered examination admitted as a supplement to the record for review by this court of the trial court’s denial of the motion for a new trial. The district judge hearing the proffer motion denied the proffer.

On appeal, we directed that on remand “the trial judge consider the proffered evidence in light of defendant’s prior motion for a new trial and again pass upon defendant’s motion for a new trial before resen-tencing.” 412 So.2d 518.

Then, in conjunction with that remand for hearing on motion for new trial and for resentencing, the defense was told by law enforcement officers that a polygraph examination had been administered approximately one year prior to trial to Mona Brouchet, the then common law wife of James Humphrey and mother of the two slain infant children. This examination took place at the request of George Perez of the district attorney’s office and was administered at the Calcasieu Parish Sheriff's department by Deputy Carl Chism, also a court qualified expert in polygraph examination. That examination indicated that Mona Brouchet was being deceptive in her answers.

At the hearing on the motion for a new trial, the defense requested and was permitted to introduce evidence of Mona Brou-chet’s polygraph as well as that of Humphrey. The trial judge considered evidence of both polygraph examinations, but concluded that Humphrey’s motion for a new trial should nonetheless be denied.

Based on these polygraph results, the defendant contends essentially that there are two reasons for granting a new trial under La.C.Cr.P. art. 851.

In the first place, the defendant argues that his post-verdict polygraph examination, although inadmissible at a new trial, was allegedly corroborated by Mona Brou-chet’s pre-trial polygraph examination and so purportedly exonerates him in the murder of his two children. Therefore he contends that the jury’s guilty verdict was contrary to the law and the evidence and a new trial would serve the ends of justice. La.C.Cr.P. art. 851(1) and (5).

In the second place, the defendant contends that Mona Broucher’s pre-trial polygraph results indicating her deceptive responses as a key witness constitute new and material evidence which evidence was improperly withheld from the defense prior to trial in violation of the defendant’s constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny.

We find neither argument persuasive.

Polygraph examination information and results are inadmissible at Louisiana criminal trials “either as substantive evidence or as relating to the credibility of a party or witness.” State v. Tonubee, 420 So.2d 126 at 132 (La.1982). Neither polygraph could have been used in Humphrey’s original trial, nor might either be used at any new trial, should Humphrey be afforded one.

Nonetheless State v. Catanese, 368 So.2d 975 (La.1979) in dicta advanced the opinion that a trial judge may consider polygraph evidence in the context of a motion for a new trial. In Catanese, we said at 368 So.2d 982, 983:

Although we conclude that polygraph evidence is inadmissible in criminal trials, the reasons for our decision do not prevent its introduction in post tria] proceedings, within judicial discretion and subject to guidelines such as those laid down by the trial judge in the instant case. Because the defendant’s guilt or innocence is not at issue in such proceedings, there is less demand for the rigorous guarantees of accuracy which typify the rules governing introduction of evidence at trial. Consequently, the reasons for excluding polygraph evidence in criminal trials are not necessarily compelling in post trial proceedings.

Catanese clearly did not say that the results of polygraph examinations in and of themselves are sufficient to warrant the granting of a new trial. Catanese simply permits their introduction in post trial proceedings “within judicial discretion and subject to [certain] guidelines,” in order to assist the trial judge in his post-trial deliberations and to be considered along with whatever other evidence is presented in those proceedings. If anything, Cata-nese recognized the dangers inherent in an inflexible approach, which might automatically aceept polygraph results as sacrosanct.

The introduction of polygraph examinations are allowed at the post-trial deliberations because the judge can properly assess and weigh the polygraph’s validity and results with the other considerations and testimony presented in the post-trial proceedings. The weight to be given to such evidence is within the discretion of the trial judge. Catanese, supra.

Furthermore, review by this Court of the trial court’s denial of a motion for a new trial based on an assertion that the verdict is contrary to the law and the evidence is limited to the question of whether the trial judge has properly exercised his discretion in that regard. State v. Caminita, 411 So.2d 13 (La.1982); State v. Turner, 365 So.2d 1352 (La.1978). The trial judge when called upon to assess the legal merits of a motion for a new trial is accorded considerable latitude in evaluating the reliability of evidence and its potential impact on the verdict; his ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. State v. Fuller, 414 So.2d 306 (La.1982); State v. Molinaro, 400 So.2d 596 (La.1981); State v. Jones, 344 So.2d 1036 (La.1977).

At the hearing on the motion for a new trial, Joe Bartlett, deputy of the Beauregard Parish Sheriffs office, testified concerning his administration of the polygraph examination to James Humphrey, the techniques and questions used and his opinion regarding the results of that testing. Deputy Bartlett believed that Humphrey was not being deceptive when he denied harming his two infant children. Deputy Bartlett also testified that he reviewed the charts of the polygraph examination that Deputy Chism had given the children’s mother. Those charts in his opinion indicated that Mona Brouchet was being deceptive when she disclaimed knowledge about the cause of her children’s deaths and their well-being when she had left the house and returned later.

On cross-examination the state disputed Bartlett’s qualifications and record as a polygraph examiner. The state also emphasized that there had been a lapse of two years and three months between the infants’ deaths and Humphrey’s post verdict polygraph examination; that Deputy Bartlett had not reviewed the trial transcript in preparing for administering the polygraph examination; and that Deputy Bartlett had been wrong in at least one prior evaluation involving a child’s death.

Deputy Chism of the Calcasieu Parish Sheriff’s Department testified to the events surrounding his administration of the pretrial polygraph examination to Mona Brou-chet. Deputy Chism had found her a difficult subject with whom to work because she was reluctant to give any sort of definite answer. If her response appeared to offend the examiner, she would change it. Deputy Chism testified that Mona Brou-chet was inconsistent on everything she told him. Furthermore she would not explain her inconsistencies. Deputy Chism had also reviewed the charts that Deputy Bartlett had compiled on the Humphrey examination and agreed that those records indicated no deception on Humphrey’s part when he was asked about harming the children.

As its witness, the state called Rodney Steed, formerly the chief polygraph examiner for the Department of the Air Force. Steed testified that a two year and three month delay in the administration of a polygraph examination would diminish the reliability of the test results. Furthermore an examiner with strong feelings toward the subject cannot administer, in his opinion, an impartial examination. (We note that Deputy Bartlett admitted that he had “formed very strong opinions about this entire case,” and that he had been wrong in his conclusions on several prior polygraph examinations, including one involving the death of a child.) Finally, he stated that even a guilty person may so mentally resolve an event that rationalization occurs. Such rationalization after a significant lapse of time may result in a lack of appropriate reaction during the course of a polygraph examination.

At the conclusion of this hearing, the trial judge denied the defendant’s motion for a new trial. Given the testimony at the hearing, we do not find that the trial judge abused his discretion in concluding that the polygraph results did not warrant granting a new trial under La.C.Cr.P. art. 851(1) and (5) [verdict contrary to the law and the evidence; interest of justice].

In like manner and for the reasons which follow, we also do not find a new trial should have been granted under La.C.Cr.P. art. 851(3) and (4) [newly discovered evidence; prejudicial error].

In response to a motion for discovery and inspection, the state provided the defense with two written statements that Mona Brouchet had given officers of the Lake Charles Police Department. Apart from disclaiming any knowledge of what or who had caused the deaths of her two infant daughters, Mona Brouchet had also stated that she had checked on the girls after returning from Humphrey’s father’s house around midnight and that they were all right. The defense used these two statements to impeach Mona Brouchet at trial.

As stated earlier, the defense was not informed until the remand of this case after appeal that Deputy Chism had interrogated and polygraphed Mona Brouchet before that, nor had the defense formerly been provided with interrogation or test records, or Deputy Chism’s name for interview purposes. This, the defense contends, violates Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and the continuing duty of the state under the discovery provision, La.C.Cr.P. art. 729.3. Irrespective of the admissibility of polygraph information and results at trial, defense counsel argues that had he known about the Chism interview with and examination of Mona Brouchet, he could at trial have better cross-examined Brouchet, a key prosecution witness, and he could have subpoenaed Deputy Chism as a defense witness to illustrate inconsistencies in Mona Brouchet’s story.

The state counters this argument by suggesting that it too was, until recently, unaware of Mona Brouchet’s polygraph examination. Allegedly, George Perez originally handled the prosecution of this case for the district attorney’s office in Calcasieu Parish, and was the person who requested that a polygraph be given to Mona Brouchet, originally a co-defendant in the case. Shortly thereafter, Perez moved to a new section and Robert Bryant took over the prosecution of this case, having no information that a polygraph test was to be or had been conducted on Mona Brouchet.

At the hearing on the motion for a new trial, Deputy Chism corroborated the fact that George Perez of the Calcasieu Parish district attorney’s office had contacted him to run the polygraph on Mona Brouchet. Two or three weeks after the administration of the polygraph, Deputy Chism tried to contact George Perez; however, Chism testified, he had been moved to another department. Carl Chism’s testimony indicates that apparently no one in the district attorney’s office except George Perez was aware of the polygraph examination. Chism’s only contact with the district attorney’s office after administering the test on May 5, 1979, was a brief visit with a parish investigator at the courthouse after Humphrey’s trial began on June 11, 1980, at which Chism thought he mentioned that Mona Brochet had been deceptive during the interview and examination that he conducted on her the year before.

Assistant District Attorney Bryant for the state contends that the first time he saw the report or charts of this examination was after its remand following appeal, on the day of the evidentiary hearing on the motion for a new trial and some two years after the polygraph test had been given to Mona Brouchet. Deputy Chism brought the charts of Mona Brouchet’s polygraph examination with him to the hearing on the motion for a new trial, but no other evidence relative to the polygraph examinations has been admitted into the record of this case.

There has been presented no conclusive proof that the prosecutor became aware during Humphrey’s trial that a pre-trial polygraph examination of Mona Brouchet showed deceptive responses to questions about her children’s well-being the night of April 28, 1979. If this knowledge were conceded, the question would then become whether the withholding of this information from the defendant constitutionally violates his right to a fair trial.

In State v. Roussel, 381 So.2d 796 at 798 (La.1980), we said:

When the reliability of a witness may be determinative of guilt or innocence, evidence which impeaches the testimony of that witness may fall within the Brady rule that the state must disclose material exculpatory evidence. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Bailey, 367 So.2d 368 (La.1979). We assume without deciding that the material here is Brady information which should have been disclosed prior to trial. However, the finding that the state should have disclosed certain information prior to trial and did not, does not necessarily require that a defendant’s conviction be reversed. State v. Falkins, 356 So.2d 415 (La.1978).
Reversal of a conviction is not required under Brady unless the omission of the non-disclosed evidence deprived defendant of his constitutional right to a fair trial. State v. Falkins, supra. The United States Supreme Court in United States v. Agurs stated the test an appellate court must use in determining whether defendant’s right to a fair trial has been violated by the non-disclosure of evidence, where, as in the instant case, only a general request for exculpatory material has been made:
It necessarily follows that (in a post-trial hearing by the court) if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. United States v. Agurs, 427 U.S. 97, 113, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976). (Emphasis provided.)

Furthermore the test to be employed in considering a motion for a new trial based on newly discovered evidence is whether that new evidence is so material that it ought to produce a different result than the verdict reached not simply whether another jury might bring in a different verdict. State v. Bryan, 427 So.2d 1169 (La.1983); State v. Molinario, 400 So.2d 596 (La.1981); State v. Williams, 362 So.2d 530 (La.1978); State v. Motton, 395 So.2d 1337 (La.1981), cert. denied, 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981); State v. Shannon, 388 So.2d 731 (La.1980); State v. Reed, 378 So.2d 923 (La.1979); State v. Bell, 377 So.2d 275 (La.1979). The trial judge is accorded considerable discretion in evaluating the impact of such newly discovered evidence on the verdict; his ruling will not be disturbed on appeal unless there is a clear showing of an abuse of discretion. Bryan, supra; State v. Clayton, 427 So.2d 827 (La.1982); State v. Talbot, 408 So.2d 861 (La.1980) (On Rehearing).

With these principles in mind and faced with the allegation that new and material evidence was withheld by the state in violation of Brady and its progeny, we must examine the entire record including the content, character, and impact of Ms. Brou-chet’s testimony at trial, the ability of the defense to impeach that trial testimony, Humphrey’s testimony on his own behalf and that of other witnesses to determine “if the omitted evidence creates a reasonable doubt that did not otherwise exist.” Roussel, 381 So.2d at 798, quoting Agurs. In Roussel the Court found that even though it would have been preferable for the information to have been disclosed pri- or to trial, the defendant’s late discovery of the alleged exculpatory information did not deprive the defendant of an opportunity to present effectively the alleged Brady material to the trier of fact. We find this ruling analogous to the one in the instant case.

Even though the defense was not informed about Mona Brouchet’s pre-trial polygraph examination until after the conclusion of Humphrey’s trial for manslaughter, the defendant was not deprived of an opportunity to question Mona Brouchet about the events surrounding her daughter’s deaths. Nor was the defendant deprived of a thorough opportunity to impeach Mona Brouchet at trial.

The state says in its brief that Mona Brouchet was called to testify at Humphrey’s trial to show her to be, as admittedly she is, a small, frail woman of apparently limited intelligence, and to remove her as a possible suspect by showing her to be unable to perform the fatal beatings and to have been absent when they occurred. Even though her trial testimony was at times disjointed and contradictory on both direct and cross-examination, it seems that the two girls were alive when she left to visit Humphrey’s relatives around six o’clock the evening of Friday, April 28, 1979, and she left them in Humphrey’s care. When she returned around eleven, she first said in her statement to the authorities that the children were alive, that she checked to see if one needed changing. In another version she said she checked to see if one had a fever. At trial she recanted this testimony and said that she did not touch either girl but that she thought they were breathing because Janice had a smile on her face. When asked about her inconsistencies she said she could not remember what she had said because she was so upset.

Nonetheless the defense contends that had it known about the Brouchet polygraph examination, it could have called Deputy Chism and questioned him about his pretest interview with Mona Brouchet, about her demeanor and about her forthrightness or lack thereof in order to impeach her trial testimony and the statements that she had given to the authorities concerning the incident. After reviewing Mona Brouchet’s testimony at trial, however, it is evident that the defense was clearly and effectively able to impeach Mona Brouchet’s testimony and statements without the assistance of Deputy Chism. Her testimony was evasive, and at times non-responsive. When questioned about her facts within prior written statements to the authorities she contradicted them while maintaining that she was not changing her answers. The jury was surely able to discount most of what she said both then and earlier.

More significant in terms of the jury’s verdict of guilty than Mona’s inconsistent testimony, was the fact that Mona’s testimony concerning the time of her leaving and the time of her returning to her house was corroborated by several witnesses, including a young boy living next door to Humphrey and Brouchet and several of Humphrey’s own relatives. These witnesses confirm that Mona left her house and arrived at Humphrey’s father’s around six o’clock or six-thirty. (The six o’clock news was on.) Humphrey’s relatives confirm that Mona spent the evening with them, was driven home and dropped off around eleven o’clock. (The ten o’clock news had come on before they left to drive Mona home and they had stopped briefly at a grocery store on the way.) After dropping Mona at her house, they drove through the park and, seeing Humphrey, stopped briefly to tell him that Mona was home.

Additional testimony was admitted concerning an earlier incident where Mona had called the police to report Humphrey’s beating her and the girls. (This was the “other crimes evidence” which this Court had found admissible both pre-trial and in its review on appeal prior to remand.) When the officers arrived, Mona said that everything was all right, and indeed it looked that way, according to the testimony of the reporting officers at trial. However, another trial witness confirmed the presence of bruises on the girls the day after the police had been called by Mona to come out to the house.

On his own behalf, Humphrey testified consistently that he did not arrive home until around 8:30 p.m., that Mona was there when he arrived, and that she left shortly thereafter to visit his father. Defense counsel in his closing argument highlighted the marked contrast between the consistent story that Humphrey was presenting and the inconsistencies in Mona’s version of what happened. “It was evident that there were glaring inconsistencies between her [Mona Brouchet’s] trial testimony and the facts as she related them to the police in the statement that she gave a few days after this alleged occurrence.” Defense counsel spoke to the jury of Mona’s not being honest in her testimony or in the statements that she had given to the police. Defense counsel noted, too, in his closing remarks that Mona Brouchet was obviously trying to hide something.

It can hardly be that the jury was not aware that Mona Brouchet was deceptive in a number of respects in the course of her trial testimony. Even so, they found Humphrey guilty of two counts of manslaughter in connection with the beating deaths of his two infant daughters. Additional evidence of Mona Brouchet’s inconsistency and deception would hardly have prompted the jury to conclude otherwise.

The trial judge in denying the defendant’s motion for a new trial reasoned: Polygraph information is inadmissible at criminal trials and therefore could not have directly affected the jury’s verdict. Given the unreliability of the examination itself, the trial court stated that the polygraph examination could not be equated to actual fact. James Humphrey testified on his own behalf at trial so that the jury was able to judge his credibility for themselves. Additionally, Mona Brouchet had also testified at trial as a state witness and was thoroughly cross-examined by defense counsel, so as to enable the jury to determine her credibility as well. The jury also had evidence before them which corroborated portions of Mona Brouchet’s testimony concerning the time of her leaving and returning home and the well-being of the children when she left. The court concluded that “nothing can be added by granting a new trial in this particular case.”

We agree with the trial judge’s assessment. He did not abuse his discretion in concluding that the defendant had not shown grounds for his being granted a motion for a new trial under La.C.Cr.P. art. 851(3) and (4).

For the foregoing reasons, we find defendant’s assignment of error number one non-mer itorious.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error defendant contends that the trial court erred in sentencing the defendant to fifteen years at hard labor on each count of manslaughter to be served consecutively. Defendant argues that the sentence was excessive and violated defendant’s constitutional right as guaranteed by La. Const, art. 1, § 20.

This case, of course, was remanded by this Court to the trial court for resentenc-ing. Therefore, the trial court was very careful in stating its reasons for the record and in considering the factors in La.C.Cr.P. art. 894.1. The trial court considered the defendant's prior record. The trial court then very carefully discussed the factors listed in the codal article before stating his conclusion as to sentencing. Only at that point did the trial court sentence defendant to fifteen years at hard labor on each count, giving him credit for time already served. The terms were to run consecutively.

This Court in State v. Smith, 437 So.2d 252 (La.1983), stated the general law in this area:

La. Const, art. 1 § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.C.Cr.P. art. 894.1, are an important aid to this Court when called upon to exercise its constitutional function to review a sentence complained of as excessive. Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Washington, 414 So.2d 313 (La.1982).

Maximum sentences of twenty-one years for manslaughter have been upheld by this Court. See State v. Smith, supra; State v. Crawford, 410 So.2d 1076 (La.1982). In Crawford, this Court upheld a twenty-one year sentence of a mother found guilty of the manslaughter of her nine-month-old baby girl. While each case must be considered on its own facts, the facts of this case show an even more heinous crime in which defendant killed his two infant children.

Defense counsel argues that although sentence was imposed on two counts since two deaths resulted, the maximum sentence should have been only twenty-one years, the maximum sentence for one count of manslaughter, considering the age of the children, their having no husbands or children dependent upon them, their apparent lack of long-term conscious suffering prior to death and defendant's knowledge that charges against their mother were dropped. This argument does not have merit. On review of the excessiveness claims, the only question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Williams, 412 So.2d 1327 (La.1982). Counsel has shown no abuse of discretion here.

This assignment of error lacks merit.

Decree

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

AFFIRMED.

LEMMON, J., concurs.

      . The rehearing opinion notes that the remand ordered in the original opinion was not affected by the granting of a rehearing on another issue. There were, however, three dissents to the rehearing opinion. Also see 431 So.2d 751 (La.1982).

      . La.C.Cr.P. art. 851 reads in full:
      The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      The court, on motion of the defendant, shall grant a new trial whenever:
      (1) The verdict is contrary to the law and the evidence;
      (2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence has been introduced at the trial it would probably have changed the verdict or judgment of guilty;
      (4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
      (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

      . The guidelines set forth by the trial judge in State v. Catanese, 368 So.2d 975 at 976, note 1 (La.1979), are the following:
      I. A competent examiner_
      II. A calibrated machine.
      III. A subject relaxed to the extent that the test is valid....
      IV. A competent pre-test interview_
      ■ V. A meaningful area of inquiry involved ....
      VI. One question, at least, that threatens the well-being of the subject...
      VII. At least one control question in the technique..'..
      VIII. Short answers, (preferably ‘yes’ or ‘no’).
      IX. A low-key, quiet approach by the examiner throughout.
      X. At least two charts with proper labeling and responses...
      XI. The charts made available to the other side sufficiently in advance of the trial....

      . In Catanese, we noted at 368 So.2d 981, 982:
      The principal reasons for exclusion [of the results of the polygraph examination at trial] are interrelated: (1) Our fundamental concern is that the trier of fact is apt to give almost conclusive weight to the polygraph expert’s opinion_ Our own appellate experience with P.E.I. tests and other scientific evidence reflects a concern over the apparent readiness of both juries and trial judges to accept such evidence uncritically. See State v. Graham, 360 So.2d 853 (La.1978); State v. Monroe, 345 So.2d 1185 (La.1977); State v. Jones, 316 So.2d 100 (La.1975). (2) Because of the potentially decisive character of polygraph evidence, we are equally concerned about the quality of such evidence available in Louisiana. The polygraph technique is capable of a high degree of accuracy only when conducted under controlled conditions by an examiner who is highly qualified by his ability, experience, education and integrity. At present Louisiana has no law providing for the licensing, regulating and disciplining of polygraph operators_ Thus, introduction of polygraph evidence . in criminal trials would entrust key participation in the fact-finding process to persons not presently subject to effective judicial, legislative or adversary control. (3) Even if litigants were afforded an adequate supply of highly qualified experts, extensive procedural safeguards should be established either by court rule or legislation before the introduction of polygraph tests at trial.- Otherwise, there is apt to be either an inadequate check upon the quality of the evidence or an undue consumption of time involved in its introduction.

      . La.C.Cr.P. art. 729.3 provides:
      If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decided to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

      . Humphrey's charts were allegedly tendered as proffered evidence at the time the motion for a new trial was initially made (before the appeal and the remand by this Court to the district court to consider the polygraph information before deciding anew the motion for a new trial). However, at the hearing on remand, the polygraph evidence of Humphrey’s examination could not be located and so the trial judge had only the testimony of the expert witnesses and the charts and report on the Brouchet examination on which to rely in making his decision.

      . In State v. Roussel, 381 So.2d 796 (La.1980), the alleged Brady information was admitted by the victim at trial. [The information was that the victim of the alleged rape was an ex-heroin addict who had served five years in a Texas jail for heroin possession and who, on the night of the alleged rape, was undergoing methadone treatment and had smoked a marijuana cigarette with her alleged attacker shortly before the rape.]

      . The girls died as a result of violent injuries. These injuries in the opinion of the deputy coroner who testified at the trial required muscular strength. Latasha’s head injuries were the probable cause of her death. Janice died of neuro-genic shock from brain stem and spinal cord injuries resulting from a fracture by twisting of one of the neck vertebra.

      . This Court has consistently affirmed sentences for manslaughter, whatever their length: see, e.g., State v. Tompkins, 429 So.2d 1385 (La.1982) (fifteen years); State v. Roussel, 424 So.2d 226 (La.1982) (twenty-one years); State v. Allen, 416 So.2d 553 (La.1982) (twelve years); State v. Simmons, 414 So.2d 705 (La.1982) (six years); State v. Brown, 412 So.2d 998 (La.1982) (ten years); State v. Campbell, 404 So.2d 1205 (La.1981) (twenty years); State v. McMahon, 391 So.2d 1120 (La.1980) (fifteen years); State v. Stegall, 377 So.2d 103 (La.1979) (twenty years); State v. Romero, 369 So.2d 1342 (La.1979) (fourteen years); State v. Gomez, 365 So.2d 1313 (La.1978) (five years).


text:
    Mary Jane HEBERT v. Karen Ann NEYREY and Sandy T. Russo.
    No. 83-C-1261.
    Supreme Court of Louisiana.
    Jan. 16, 1984.

      Nicholas F. LaRoeca, Jr., Lippman, Mahfouz, Martin & LaRocca, Morgan City, for applicant.
    Paul M. Hebert, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for respondents.
   CALOGERO, Justice.

This case presents the question of who under the provisions of a lease bears the responsibility for the cost of repairing water pipes which burst during a record-breaking freeze in the Baton Rouge area in January, 1982, at a time when the lessees were absent from the city. Both lower courts interpreted the lease provisions to place the financial responsibility for such repairs on the defendant/lessees. Hebert v. Neyrey, 432 So.2d 396 (La.App. 1st Cir.1983). Upon review and for the reasons which follow, we decide, that the lessor in this instance should bear the cost of those repairs. Additionally we determine that the lessor does not owe the defendants any non-pecuniary damages. And because we reverse the decision on the main demand and render judgment in favor of the lessees, we need not address the question of the awarding of attorney’s fees to the lessor under the lease.

FACTS

The facts of this case are clearly set forth in the Court of Appeal opinion at 432 So.2d 398:

Mary Jane Hebert leased to Karen Neyrey and Sandy T. Russo the residential premises located at 812 West Garfield Street in Baton Rouge, Louisiana, for a term of ten months commencing on August 1, 1981, and ending on May 31, 1982. The monthly rental was $315. The written lease agreement was a standard lease provided by the Apartment Owners and Builders Association of Greater Baton Rouge, Inc.
The lessees were students at Louisiana State University. When they completed their semester examinations in December of 1981, they left the leased premises for a period of approximately four weeks and went to their respective homes to visit. Ms. Russo lived in Morgan City, Louisiana, and Ms. Neyrey lived in New York City. Ms. Neyrey notified Mrs. Hebert that the premises would be unoccupied during the semester break.
On or about January 10, 1982, the lessees returned to the leased premises and found that their water pipes were frozen due to a severe freeze. Ms. Neyrey immediately notified Mrs. Hebert of the frozen pipes and was advised to wait until the pipes thawed to determine their condition. On or about January 13,1982, the pipes thawed out and began gushing water. Ms. Neyrey contacted Mrs. Hebert and requested that the pipes be repaired. Mrs. Hebert advised that she would not pay for the repairs because that was the obligation of the lessees under the lease. Ms. Neyrey also contacted the Baton Rouge Waterworks and had the water cut off.
On January 14, 1982, the lessees notified the lessor in writing of the broken pipes and advised her that “... unless you initiate repair promptly I shall secure the services of a plumber and deduct the charges from next month’s rent.” Also on January 14, 1982, Ms. Neyrey contacted Louis DeJohn, a plumber, who repaired the leaking pipes for $270.94. The lessees paid the cost of these repairs and deducted this amount from the February 1982 rental payment. This suit followed.

DUTY TO REPAIR BROKEN PIPES

The trial court found that the repairs were occasioned by the tenants’ fault because, upon leaving the premises for the semester break, they took no precautions to prevent the pipes from freezing during their absence at a time when subfreezing temperatures were not uncommon in Baton Rouge. The trial judge found under the terms of the lease that the tenants were responsible for paying for the pipes’ repair. And because of his finding the defendants at fault, the trial judge denied their reeon-ventional demand for damages. Finally he awarded the plaintiff one hundred dollars in attorney’s fees under the express language of the lease. The defendants’ appealed the district court judgment against them.

The Court of Appeal, in turn, examined the separate applicable sections of the lease in this case in conjunction with a discussion of the appropriate codal provisions and concluded that the Repairs and Maintenance section of the lease obligated the lessor to repair the roof and those conditions “caused by fire or ‘other casualty’ ” provided the need for these repairs was “not caused by the lessee’s fault or negligence.” 432 So.2d at 400. Then, assuming that “the term ‘other casualty’ contemplates water pipes being ruptured as a result of a severe freeze,” supra, the Court of Appeal concluded that the need for repair of the pipes in this case was caused by the lessees’ fault and negligence.

The Court of Appeal’s finding that the need for repair of the pipes was caused by the lessees’ fault or negligence prompted our granting the defendants’ writ application. We do not dispute, nor do the defendants, the appellate court’s recitation of the applicable law in this matter.

The Court of Appeal, and presumably the trial court, were prompted to rule as they did on the negligence question by the following considerations: A tenant could prevent frozen pipes in a raised single house by insulating the exposed pipes under the house, by shutting off the water at the main valve and draining the pipes, by letting the water run during the subfreezing temperatures. A plumber testified at trial that shutting off the water was the preferred means of preventing frozen pipes because letting the water run could cause dangerously low water pressure for other city services. Although there was testimony that it might have been difficult for the tenants themselves to turn off the water, the appellate court stated that “[i]f [the lessee Ms. Neyrey] could have had the water cut off after the freeze, then she could have had the water cut off in this manner prior to the freeze. Either Ms. Neyrey or [her co-tenant] Ms. Russo could have made arrangements for the pipes to have been drained after the water was cut off.” 432 So.2d at 401. In the lower courts’ opinions, had the lessees taken ordinary measures to protect the pipes from freezing, there would have been no damages. Therefore the tenants’ failure to act constituted negligence.

In making our findings, we assess the facts differently. In deciding whether these students were at fault or negligent, we are influenced by the following evidence as it is established in this record.

The defendants were not permanent residents of the Baton Rouge area. They were two Louisiana State University students with homes in Morgan City, Louisiana and New York, New York respectively. In the late summer of 1981, they signed a lease for a single raised house in Baton Rouge, which lease was for the school year from August, 1981, through May, 1982. It was only a little over four months later while both were away on vacation between academic semesters that the exposed pipes of this raised cottage froze during unprecedented low temperatures.

Both lessees were unfamiliar with the protective measures that might be called for to prevent residential water pipes from freezing in the winter. Neither had lived in a raised house before, nor had either the previous experience of living in any house where the pipes had frozen.

Testimony at trial established that it was not an easy task to shut off the water to this house. Apparently the only way to turn off the water to this residence manually was at the water meter box in the street, by means of a special water meter key available only to plumbers and/or by purchase from a hardware plumbing-supply store. The only tool these two students had was a hammer used for hanging pictures.

Furthermore there was no reason for the students to have anticipated the onslaught of unprecedented below-freezing temperatures during their absence from Baton Rouge. While weather records and data were not introduced into evidence, the parties concede that the cold freezing weather of the sort experienced in Baton Rouge during the time in question in January, 1982, was more of a rarity than a frequent occurrence. There was testimony that the Baton Rouge area had not experienced temperatures so low since about 1963, some eighteen years earlier at a time when the students themselves were probably infants. Furthermore, at the time that they each left for their month long semester break, the Baton Rouge weather was warm and temperate.

Before leaving, the students expressly notified their landlady, the plaintiff in this case, that they were leaving the house unoccupied and that they had instructed a neighbor to take in the mail. There was discussion of the problems of vandalism and theft, not of the weather. The landlady was well aware of the defendants’ leaving the house unoccupied and the house was accessible to her. She testified that her own children attended Louisiana State University, so she was familiar with the university schedule. This unprecedented freeze happened before the students arrived back in Baton Rouge from their semester break and the pipes were frozen upon their return to the leased premises.

Under these circumstances, we find the lower courts were clearly wrong in finding fault or negligence on the part of these LSU students. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Because the need for repairing the pipes was not caused by the lessees’ fault or negligence, the lessor under the Repair and Maintenance section of the lease was obligated herself to repair those conditions caused by “other casualties,” the freeze.

NON-PECUNIARY DAMAGES

Defendants in brief to this Court restate their demand for non-pecuniary damages for humiliation, inconvenience, embarrassment and mental anguish: a claim disallowed upon the lower courts’ ruling in favor of the landlady. Upon review we decline to award non-pecuniary damages despite our reversal on the question of defendants’ negligence.

We find that there was an insufficient showing in this record that any such damages were sustained, in some measure as a result of the speedy repair these tenants accomplished. Furthermore, it is questionable whether damages for inconvenience, humiliation, embarrassment, and mental anguish would be due in this case even were they sustained.

ATTORNEY’S FEES

Finally, as stated at the outset of this opinion, because we reverse the lower courts and find the lessor responsible for repairing the pipes in question, we need not consider liability under the lease contract for the lessor’s attorney’s fees.

Decree

For the foregoing reasons, the lower courts’ casting the defendants for two hundred seventy and 94/100 ($270.94) dollars and for one hundred and no/100 ($100.00) dollars attorney’s fees, is reversed. Plaintiff’s petition is dismissed at her cost. Judgment of the lower courts’ dismissing the defendant’s reconventional demand is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

DENNIS, J., concurs.

DIXON, C.J., concurs, disagreeing with treatment of the issue of damages.

      . Lines 68-73 of the lease provide:
      Should an Agent or Attorney be employed to give special attention to the enforcement or protection of any claim of the Lessor arising from this lease, the Lessee shall pay, as fees and compensation to such Agent or Attorney, an additional sum of twenty-five (25%) per cent of the amount of such claim, the minimum fee, however, to be $100.00, or if the claim be not money, then such sum as will constitute a reasonable fee, together with all costs, charges and expenses.

      . The Repairs and Maintenance section of the lease in this case appears at lines 133-139 and reads in full as follows:
      No repairs shall be due Lessee by Lessor except to the roof and such as may be rendered necessary by fire or other casualty not occasioned by Lessee’s fault or negligence. Lessee agrees to report in writing to Lessor any damage to the leased premises within twenty-four hours after its happening, and upon his failure to do so, Lessee shall be bound to repair any consequent or resulting damage.
      Should Lessee fail to make such repairs as he is obligated to make hereunder, Lessor may, at his option, have the repairs made and Lessee agrees to reimburse Lessor for the cost. (Emphasis provided.)

      . The discussion of the law by the Court of Appeal appears at 432 So.2d 399, 400 and was as follows:
      To determine upon whom devolved the obligation to repair the broken pipes, three different provisions of the written lease must be analyzed. For purposes of ready reference, we have denominated these provisions A, B, and C, respectively.
      PROVISION A
      Provision A is entitled "Warranty" and provides as follows:
      "Lessor warrants that the leased premises are in good condition except as otherwise stipulated herein. Lessee accepts them in such condition and agrees to keep them in such condition during the term of the lease at his expense and to return them to Lessor in the same condition at the termination of the lease, normal decay, wear and tear excepted." Under general law, a lessor has an obligation to maintain the leased thing in a condition such as to serve for the use for which it is hired. La.C.C. art. 2692. The lessor has an obligation to deliver the thing leased in good condition, and is obligated to make all repairs which may accidentally become necessary, except those which the tenant is bound to make, such as repairing the hearth, plastering the walls and replacing broken window glass. La.C.C. arts. 2693 and 2716. If a lessor refuses or neglects to make necessary repairs for which he is obligated, the lessee may cause them to be made and is authorized to deduct the price of the repairs from the rent. La.C.C. art. 2694; Billeaudeaux v. Soileau, 303 So.2d 810 (La.App. 3rd Cir.1974); Bialy v. Katz, 273 So.2d 360 (La.App. 3rd Cir.1973), writ denied 275 So.2d 870 (La.1973). When the lessees agreed in Provision A to keep the leased premises in good condition at their expense during the term of the lease, they relieved the lessor of the duty to repair imposed upon her by the above statutes. Maggio v. Cox, 63 So.2d 167 (La.App. 2nd Cir.1953).
      PROVISION B
      Provision B is found in a section entitled "Non-Liability of Lessor" and provides as follows:
      "Lessor will not be responsible for damages caused by leaks in the roof, by bursting pipes, by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, nor will Lessor be liable in damages for injury caused by any vices or defects of the leased property to Lessee or any tenant or occupant, or to anyone in the building or on the premises, except in case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having written notice from Lessee of such defects and the damage caused thereby. Should Lessee fail to so notify Lessor promptly, in writing, of any such defects, Lessee will become responsible for any damage or injury resulting to Lessor or other parties.” 1
      Under general law, a lessor guarantees the lessee against all vices and defects of the thing leased, even if they arise after the lease commences, provided they do not arise from the fault of the lessee. If the lessee should suffer any loss as a result of the vices and defects, the lessor is bound to indemnify him for the same. La.C.C. art. 2695. However, if the lessee assumes responsibility for the condition of the leased premises, the owner is not liable for injury to the lessee or anyone on the premises caused by a defect in the premises unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time. La.R.S. 9:3221; Add Chemical Company v. Gulf-Marine Fabricators, Inc. 345 So.2d 216 (La.App. 3rd Cir.1977), writ denied 347 So.2d 263 (La.1977).
      In Provision A, the lessees assumed the responsibility of maintaining the leased premises in good condition during the term of the lease at their own expense. In the paragraph immediately preceding Provision B, the lessees contractually released the lessor from liability for injury or damage to themselves, their families, guests, employees or invitees, occuring on the leased premises and agreed to indemnify and hold the lessor harmless therefor. Provision B, by tracking the language of La.R.S. 9:3221, transfers liability for damages to third persons for defects in the premises from the lessor to the lessees, unless the lessor neglects or fails to remedy such defects within a reasonable time after receiving written notice of them from the lessees. Meyers v. Drewes, 196 So.2d 607 (La.App. 4th Cir.1967); Green v. Southern Furniture Company, 94 So.2d 508 (La.App. 1st Cir.1957). There is a distinction between liability for damages occasioned by defects in the premises and who has the obligation to repair such defects. Provisions A and C pertain to the duty to repair and Provision B pertains to liability for damages.
      PROVISION C
      Provision C is entitled “Repairs and Maintenance" and provides as follows:
      "No repairs shall be due Lessee by Lessor except to the roof and such as may be rendered necessary by fire or other casualty not occasioned by Lessee’s fault or negligence. Lessee agrees to report in writing to Lessor any damage to the leased premises within twenty-four hours after its happening, and upon his failure to do so, Lessee shall be bound to repair any consequence or resulting damage.
      "Should Lessee fail to make such repairs as he is obligated to make hereunder, Lessor may, at his option, have the repairs made and Lessee agrees to reimburse Lessor for the cost.” In Provision C, the lessor obligates herself to repair the roof and those conditions caused by fire or "other casualty”, provided the need for these repairs was not caused by the lessee’s fault or negligence.2 When Provisions A and C are construed together it is apparent that Provision C is an exception to the terms of Provision A. La.C.C. arts. 1951 and 1955; Pendleton v. Shell Oil Company, 408 So.2d 1341 (La.1982). (Emphasis provided.)
      1 In the paragraph immediately preceding Provision B, and also located in the section entitled “Non-Liability of Lessor”, the lessees agreed to relieve the lessor of any liability for injury or damage to person or property of the lessees, their families, guest, employees or invitees, occurring on the leased premises, however caused or arising, including the negligence of the lessor, his agents or employees, and the lessees agreed to indemnify and hold the lessor harmless therefor.
      2 This Provision demonstrates that Provision C pertains to the duty to repair and Provision B pertains to liability for damages. Under Provision B, the lessor is not "responsible for damage caused by leaks in the roof”, however, under Provision C, the lessor specifically assumes the obligation to repair the roof.

      . In Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), we held that non-pecuniary damages were recoverable under La.C.C. art. 1934(3) only if the principal object of the contract was intellectual gratification or enjoyment. Gele v. Markey, 387 So.2d 1162 (La.1980) cited to us by the defense counsel is not applicable in this case. The freezing of the pipes, their bursting and the need for their repair was not caused by a defect in the premises but by a "casualty”, which resulted when the temperature fell unusually low to subfreezing levels.


author: DIXON, Chief Justice. DENNIS, J., LEMMON, J.,

text:
    STATE of Louisiana v. Bobby Ray WILLIAMS.
    No. 82-KA-1824.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., James C. McMichael, Scott J. Crichton, Asst. Dist. Attys., for plaintiff-appellee.
    Donald R. Minor, Jeanette G. Garrett, Indigent Defender Office, Shreveport, for defendant-appellant.
   DIXON, Chief Justice.

Defendant, Bobby Ray Williams, was indicted for aggravated rape (R.S. 14:42), aggravated crime against nature (R.S. 14:89.-1), attempted first degree murder (R.S. 14:30) and armed robbery (R.S. 14:64). His trial in January, 1981 ended in a mistrial when the jury could not reach a verdict. In November, 1981 the defendant was tried, under a severed indictment, on two counts: aggravated rape and attempted first degree murder.

The defendant was found guilty on both counts, the jury voting ten-two, and was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence for the aggravated rape charge, and to fifty years for the attempted murder charge. The sentences are to run consecutively. The defendant appeals both his conviction and sentence, arguing fifteen of twenty-two assignments of error.

The victim related the following facts. On Friday night, May 24, 1980, accompanied by her date and two other couples, she patronized the Florentine Club near the Oakland Street Apartments in Shreveport. At about 2:00 a.m. she left the club alone, choosing to go home rather than continue partying with her companions. As she approached the car, David McCall stopped her. He put a gun close to her face and ran with her to a wooded area behind, the Oakland Street Apartments.

As McCall apparently attempted to rape the victim, the two struggled and the victim was able to shoot her attacker in the chest. The two continued to struggle until a second man entered the struggle and took the gun away. The victim then testified that this second man threw her up against the hill, shot her in the abdomen, then began hitting her around the face and head with the butt of the gun.

This second man then pulled her farther up the hill to a more wooded area and required that she perform oral sex, then raped her. After the rape, the victim claims that her rapist helped her to dress, and the two of them began to look for car keys she had lost in her struggle with David McCall. When the keys were not found, the rapist took her watch and put the gun to her forehead. She convinced him not to shoot her.

A resident of the apartment buildings came around the corner and asked what was going on. The victim told him that she and the man with her had been attacked. The two men helped her to the front of the building where she waited for the police and for an ambulance to arrive.

The defendant testified that he had been with David McCall earlier in the evening, but had separated prior to this incident, with plans to meet later. He said that he went looking for McCall and came upon the victim already shot and raped. He then heard McCall call him and saw that he had been shot. He went to get help, but was not successful. He returned and began to help the victim get dressed. He could not find her glasses, but he found her clothes. The defendant and the victim then went around to the front of the building. A resident of the apartment complex drove up and the defendant went with him to phone for an ambulance. The defendant said he then went to tell McCall’s family that he had been shot.

The deputy coroner for Caddo Parish testified that the victim had had recent intercourse and had lacerations to the head, bruises on her body and had a gunshot wound in her abdomen.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying his request to be provided with information concerning the victim’s medical history. Defendant learned that after his first trial, and before his second trial, the victim had undergone psychiatric treatment. The defendant felt that this treatment might influence the victim’s testimony, or bear upon her credibility, and sought to be provided with information concerning this medical history.

The prosecutor contested the request, arguing that the history was not relevant. The trial judge, although he thought the evidence was probably irrelevant, nevertheless examined, in camera, a statement made by the victim concerning her treatment to determine if the statement was exculpatory.

The defendant is denied a fair trial when the prosecution withholds evidence which has been requested and which is favorable to the defendant. State v. Perkins, 423 So.2d 1103, 1107 (La.1982). Thé record does not show whether or not the court found the information to be favorable to the defendant. The defendant, apparently, did not request the result of the court’s in camera review. When counsel proceeded to trial without an answer to his request for discovery, he abandoned his objection. State v. Brown, 421 So.2d 854, 857 (La.1982).

We cannot determine if the trial court erred in his preliminary denial of the discovery request. We cannot say that there was error.

Assignment of Error No. 2

The defendant contends that the lower court erred in denying his motion to sequester the jury. He argued that this trial was likely to receive extensive press coverage, as the first trial of this case had received extensive coverage. He sought to protect the jurors from learning that there had been a prior trial and from being prejudiced by that information.

The trial court has discretion to decide whether or not to sequester a jury in a non-capital case. C.Cr.P. 791(C). The purpose of sequestering jurors is to protect them from outside influence and from basing their verdict upon anything other than evidence developed at trial. State v. Marchand, 362 So.2d 1090 (La.1978).

At each recess the trial court admonished the jury not to discuss the case, and not to read, view or listen to news reports or accounts of the trial. There is no showing that the jury disregarded the judge’s instructions and thereby prejudiced the defense. State v. Washington, 430 So.2d 641, 646 (La.1983).

Assignment of Error No. 9

The defendant contends that the lower court erred in denying his challenge for cause of prospective juror Cook. Since defendant exhausted his peremptory challenges, he may complain of a ruling refusing to sustain a challenge for cause made by him. C.Cr.P. 800.

The defendant challenged prospective juror Cook for cause under C.Cr.P. 797(2) and (3). The defendant argued that Cook could not be impartial because he has two teen aged daughters and expressed some concern for their welfare. The defendant also challenged Cook because of an employment relationship between the prosecutor and a law firm that Cook previously used.

The trial court ruled that concern for teen aged daughters is not a sufficient showing of partiality to support a challenge for cause. He also noted that Cook probably did not even know that the prosecutor had done work for him before it was brought to his attention during the voir dire. The two had never met, and Cook did not recall seeing the prosecutor’s name on any papers.

There was no abuse of discretion in denying the challenge. State v. Welcome, (La.1983) (No. 82-KA-2232).

Assignment of Error No. 10

The defendant contends that the lower court erred in denying the motion for mistrial based on the state’s systematic exclusion of blacks from jury service. Of the eight peremptory challenges utilized by the state, five were used to exclude black jurors. The state additionally challenged two black jurors for cause after they expressed bias in favor of the prosecution. The defendant notes that the office of the district attorney was aware that the jury in the first trial was split along racial lines in their inability to reach a verdict.

This court continues to adhere to the standard established in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), realizing that the defendant is saddled with a difficult burden. State v. Eames, 365 So.2d 1361, 1367 (La.1978). The defendant must show systematic exclusion of blacks from juries over a period of time. State v. Hayes, 414 So.2d 717 (La.1982); State v. Edwards, 406 So.2d 1331 (La.1981). The defendant in this case has not shown a systematic exclusion of blacks, nor a long-standing policy of the office of the district attorney to exclude black jurors. Without such a showing of systematic exclusion, the state is entitled to exercise its peremptory challenges as it chooses. State v. Berry, 391 So.2d 406 (La.1980).

Assignments of Error Nos. 11 and 15

The defendant contends that the lower court erred in denying his motion for a mistrial made on two occasions; after the complainant referred to the defendant’s previous trial in her testimony, and after the prosecutor referred to the defendant’s previous trial.

The prosecution and the defense agreed that there would be no mention of the first trial during the second trial, to avoid any prejudice which might arise. The defense was concerned that a reference to a prior trial necessarily leaves a suggestion of a prior conviction that has been overturned, and evokes sympathy for the victim who now must go through the ordeal of a trial for a second time. The evidence was marked anew, and the witnesses were all instructed to avoid any reference to a prior trial.

During the cross-examination of the victim, the following exchange occurred:

“Q. Did you not identify this same photograph that you say is number five, in State Exhibit 3, in January of this year as who—
A. In the last trial?
Q. —you identified in this photograph?”

The second reference was made by the prosecutor during his direct examination of a witness:

“Q. Now, do you recall testifying at the last trial — excuse me — the last hearing that you had talked with Mr. Minor at CCI and that you knew who he was and who he represented; is that correct?”

There were other references to the prior trial, during McCall’s testimony, to which no objection was made.

The trial court correctly ruled that neither remark called for a mistrial. The trial judge determined that the defendant’s right to a fair trial had not been breached because neither remark informed the jury that the accused had previously been convicted for the charge for which he was currently on trial.

In State v. Albert, 381 So.2d 424, 428 (La.1980), the prosecutor referred to prior trials during the voir dire examination. This court found that that remark was not reversible error because it did not pinpoint the defendant as being involved in the previous trials and because there was no reference to a conviction. Any prejudice which might have resulted was not sufficient to prevent a fair trial.

The same is true in this case. The references to a prior trial did not identify the defendant in the prior trial, and did not refer to a conviction. In addition, the trial court agreed to include in the jury instructions an admonition to ignore all references to any prior trials. The defendant refused the offer, and suggested no other relief. Denial of the motion for a mistrial was not an abuse of discretion.

Assignment of Error No. 12

Defendant contends that the lower court erred in restricting defense questioning of Detective Foster, the purpose of which was to reveal bias on his part. The defendant sought to show that this witness, the police officer in charge of investigating this case, wanted to have this defendant convicted for this crime no matter what the evidence showed.

The prosecutor objected to the questioning as irrelevant and related to collateral matters. The trial court sustained the objection. R.S. 15:492 permits questioning of a witness as to a particular fact tending to show bias, but that bias must be personal against the defendant, rather than general in nature. State v. Bretz, 394 So.2d 245, 252 (La.1981).

The witness stated that he had known Bobby Ray Williams for several years. It is possible that the witness had developed a personal bias against the defendant over those years. The defendant should have been allowed to develop this bias as possibly influencing the veracity of the witness’ statements.

Although there was error on the part of the trial’ court, we will not reverse because we find the error harmless. The witness was an investigating officer, not an eyewitness to the crime. He testified at trial primarily to identify the state’s exhibits. There was no suggestion by the defense that evidence had been falsified.

The witness did relate the events of the evening as told to him by the victim and as told to him by the defendant. His retelling of their stories was essentially identical to their respective versions with one major exception. The defendant had claimed that the shirt and underwear he was wearing when he was arrested were not the shirt and underwear he was wearing on the night of the crime two days earlier. The witness testified that the defendant had told him that he was wearing the same clothes on both dates. ⅝

The defendant was not denied a fair trial by the trial court’s failure to allow cross-examination designed to show bias on the part of this witness. C.Cr.P. 921.

Assignment of Error No. 1⅛

The defendant contends that the lower court erred in allowing the state to impeach one of its key witnesses and to question him about testimony he gave at the defendant’s first trial and about statements he made to the police.

The state called David McCall to the witness stand. McCall had been a key witness for the state in the first trial of this defendant; as a codefendant, McCall was an eyewitness with very damaging testimony. After that trial, McCall was sentenced to serve forty-five years at hard labor for his part in the crime pursuant to a guilty plea he filed on the first day of this defendant’s first trial.

When McCall took the stand he was asked, “Do you recall seeing the victim? ... Did you approach her? ... Was Mr. Bobby Ray Williams with you at that time?” To which McCall responded, “No, sir, he wasn’t.” To the question, “Did he have any part to play in that offense?” McCall answered, “No, sir.”

The state claimed surprise and sought to impeach its witness under R.S. 15:487. The defendant objected, noting that the state has an obligation to interview a witness prior to trial to determine how that witness will testify. The prosecutor stated that he had not talked to McCall, but had relied on the testimony McCall gave at the prior trial ten months earlier. (The prosecutor who had handled the first trial did not handle the second trial).

The defendant submits that it was highly unfair for the state to be allowed to claim surprise when it made no effort to interview the witness prior to the retrial of the defendant.

In State v. Spotville, 308 So.2d 763, 765 (La.1975), this court allowed the state to claim surprise when the prosecutor had in his possession a typewritten document signed by the witness and given to police officers the day after the crime was committed. This court stated that the prosecutor justifiably believed that the witness would testify in accordance with the earlier statement.

McCall had testified in court, under oath. He gave essentially the same story to police detectives shortly after his arrest. The prosecutor could reasonably expect that the witness would give the same testimony in the second trial.

In this assignment of error the defendant contends that the manner of impeachment was improper. The defendant argues that once the witness admitted that he had made the prior inconsistent statements it was error for the state to present the detailed contents of those statements before the jury.

R.S. 15:493 provides the guidelines for admissibility of a prior contradictory statement. Evidence of that statement is not admissible when the witness distinctly admits making the prior statement. It is, however, permissible to elicit the general contents of the prior statement to inform the jury of the nature of the contradiction.' State v. Redwine, 337 So.2d 1041 (La.1976).

The prior inconsistent testimony is relevant only to the witness’ credibility and is not to be used as substantive evidence of the defendant’s guilt. The defendant is entitled to a limiting instruction regarding the use of the statement, but must request such a statement from the court. State v. Kimble, 375 So.2d 76, 79 (La.1979). The defense must request the limiting instruction, or he will have waived his objection. State v. Allien, 366 So.2d 1308, 1311 (La.1978). The trial judge is not free to comment on the evidence without such a request. The court did not admit into evidence the transcript of the statements the witness gave to the police officers because the defendant admitted making, in substance, those prior inconsistent statements. R.S. 15:493.

This assignment lacks merit.

Assignments of Error Nos. 16 and 17

The defendant contends that the lower court erred in allowing the state to introduce a transcript of David McCall’s guilty plea and sentencing, and erred in allowing the state to elicit testimony concerning McCall’s guilty plea. The defense argues that the impeachment was not proper because it went beyond what is permissible under R.S. 15:487 and because a proper foundation had not been laid.

The state admits that there was not a proper foundation, but argues that the error was harmless as it was not prejudicial to the defendant’s rights.

McCall had changed his not guilty pleas to pleas of guilty. He then testified against defendant in defendant’s first trial, and at this, the second trial, attempted to exonerate defendant. The reason for the introduction of the transcript of the guilty plea and sentencing is obscure. It was probably intended to show that the state had not violated a plea bargain with McCall. At any rate, defendant was not prejudiced in any way. McCall candidly admitted he would lie if he thought it to be in his interest. He made it clear that the truth was not in him. The transcript of McCall’s plea and sentence did not relate to defendant’s guilt or innocence.

If error, it was harmless.

Assignment of Error No. 18

The defendant contends that the lower court erred in allowing the state to go into the details of his prior conviction while cross-examining him. The defendant urges that the court reverse the holding in State v. Jackson, 307 So.2d 604 (La.1975), that allows inquiry into the details of a prior offense, as contrary to R.S. 15:495. He argues that the questioning did not impeach his credibility, but depicted him as a man of violence.

“This court has held in State v. Jackson, 307 So.2d 604 (La.1975) that the prosecution may not only establish prior convictions of a witness, but may also cross examine that witness about the details of the prior convictions in order to show the true nature of the offenses. This rule has been extended also to defendants who take the stand in their own behalf. State v. Connor, 403 So.2d 678 (La.1981). This rule is not, however, without limits. This court has held that the extent into which this inquiry into past convictions can be permitted is dependent upon each individual case. The trial judge has great discretion in determining the type of inquiry which will be allowed and his discretion will not be disturbed on appeal absent a showing of abuse. State v. Brown, 371 So.2d 751 (La.1979).” State v. Chaney, 423 So.2d 1092, 1100 (La.1982).

In the instant case the prosecutor sought to impeach the testimony of the defendant with the following line of questioning:

“Q You have been previously convicted of the offense of aggravated battery is that right?
A Aggravated battery.
Q The offense was committed with a knife?
A With a knife.
Q Butcher knife?
A Butcher knife.
Q You stabbed the victim Taft Harold with a butcher knife?
A The only reason, he tried to hurt me, came to my house to hurt me where I was living at.
Q How old was Mr. Harold at that time?
A Maybe about 50. I don’t know exactly. Maybe about 50-something.
Q Sixty or 65 would be closer, wouldn’t it?
A Maybe so. I didn’t know how old he was.”

Only limited questioning as to the facts of prior convictions is permissible. Minor details of far-ranging and irrelevant matters such as conditions of probation, alleged but uncharged offenses, and charges dropped in response to a guilty plea may not be used to cast doubt on a defendant’s credibility. State v. Connor, 403 So.2d 678, 680 (La.1981).

The prosecutor’s questions did not go beyond the facts necessary to show the true nature of the offense. The extent to which an inquiry into prior convictions is permitted depends on the facts of each case; the trial court has great discretion to control the length and depth of the examination. State v. Neslo, 433 So.2d 73 (La.1983).

This is no merit in this assignment.

Assignments of Error Nos. 19 and 20

The defendant contends that the lower court erred in allowing rebuttal evidence concerning blood stain analysis, and erred in accepting Ray Herd as an expert in the area of blood stain analysis.

The state has the right to rebut the evidence adduced by the defendant. R.S. 15:282. In a criminal prosecution the state does not and cannot know what evidence the defendant will use until it is presented at the trial of the case. It is for this reason that the state is given the right of rebuttal. State v. Monroe, 205 La. 285, 289, 17 So.2d 331 (1944).

Rebutting evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. Id. The fact that the testimony in question tends incidentally to strengthen the ease originally presented by the state does not render it inadmissible for the purpose for which it was offered and admitted. State v. Howard, 120 La. 311, 319, 45 So. 260 (1907).

The defendant took the stand and was questioned by the district attorney:

“Q You didn’t have any blood on you?
A I had some blood on my (sic) when I helped her off the ground. She rubbed against me.
Q Other than the blood you got on you from the victim, you didn’t have any blood on you?
A No, sir, I didn’t.”

There had been prior testimony concerning the blood on the defendant’s shirt, but no witness had heretofore discussed how the blood got onto the shirt. The defendant sought to exculpate himself by explaining that the blood on his shirt came from the victim rubbing against him as he assisted her. The state sought to show that the blood more probably was splattered onto the defendant while the defendant was striking the victim.

The state may not reserve part of its case-in-chief for rebuttal testimony, after the defense has put on its case. This is contrary to statute, to ancient jurisprudence and to rules of fair play. State v. Turner, 337 So.2d 455, 458 (La.1976). While a clearer case is presented when the counsel for the defendant adduces the exculpatory statement, the state is entitled to present evidence in rebuttal when new facts are put in evidence by the defendant. R.S. 15:282.

Control of evidence presented by the state on rebuttal is within the sound discretion of the trial judge whose ruling will not be disturbed except in extreme cases as where the evidence has been kept back deliberately and for the purpose of deceiving and obtaining undue advantage of the defendant. State v. Hills, 354 So.2d 186, 191 (La.1977).

The state did not purposefully hold back this rebuttal evidence to obtain undue advantage of the defendant. Nor was the defendant unduly prejudiced by this testimony. See State v. Turner, supra at 458. The victim testified during the state’s casein-chief that the defendant struck her head repeatedly with the butt of his gun, and that her head was bleeding during the beating. The trial judge did not abuse his discretion in permitting the state’s rebuttal.

The defendant complains that the court erred in accepting Ray Herd as an expert in blood spatter analysis.

Ray Herd is an experienced, educated and respected criminalist. Blood spatter analysis seems to be a relatively new and fashionable branch of criminalistics, a knowledge of which purportedly enables a witness to examine blood stains and testify about what kind of blow or wound caused them.

Herd’s testimony about blood spatter analysis was rather vague. He testified about high speed spatters (bullet caused), low or medium speed spatters (in wounds caused by blows) and concluded his qualifying testimony by saying that a person with a background in physics could learn the subject in a week.

The evidence he examined was a few bloodstains (pencil eraser size) in a cluster on the sleeve of defendant’s shirt. Defendant had explained the presence of blood on his clothing by saying that some rubbed onto him when he helped the naked, wounded victim up from the ground.

Herd testified that the spots were “medium velocity blood spatters ... normally found from beating cases ...” consistent with a beating using the butt of a pistol.

No effort was made to explain why these bloodstains could not have been caused by dripping blood from the victim’s wounds. Herd’s explanation is certainly not unreasonable, but the reasons given in analyzing the stains hardly narrowed the possible explanation for the stains, except to eliminate rubbing.

Herd probably did not give sufficient testimony in establishing himself as an expert in this discrete system of criminal investigation. Nevertheless, the trial judge accepted his expertise, and the record before us does not demonstrate that he was wrong.

Assignment of Error No. 21

The defendant contends that the lower court erred in imposing an excessive sentence. The defendant was found guilty of aggravated rape, and was sentenced to the mandatory life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He was found guilty of attempted first degree murder, and sentenced to fifty years at hard labor, the maximum sentence permitted for this crime. The sentences are to be served consecutively.

The trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentences imposed will not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Molinario, 400 So.2d 596, 600 (La.1981). While it is true that as a general rule sentences served for crimes arising out of a single course of conduct are served concurrently instead of consecutively, this court has never held that consecutive sentences are necessarily excessive. Other factors must be considered. State v. Ortego, 382 So.2d 921, 923 (La.1980).

The trial court is given general sentencing guidelines in C.Cr.P. 894.1. That article requires the court to state for the record the considerations and basis for the sentence. In giving his reasons for sentencing, the trial judge read from the defendant’s criminal record noting nine convictions over twenty years. He noted the especially vicious nature of this offense.

Due to his repeated criminality over an extended period of time, and due to the violent nature of the crime for which he is being sentenced, the trial court did not abuse his discretion in making the sentence for attempted first degree murder consecutive with the sentence for aggravated rape. State v. Carter, 412 So.2d 540, 546 (La.1982).

Assignment of Error No. 22

The defendant contends that a rational trier of fact could not have found the defendant guilty beyond a reasonable doubt. He argues that the victim could not accurately remember the events of the evening as evidenced by her questionable identification of the defendant.

The defendant was not convicted on the testimony of the victim alone. There was substantial testimony supporting her recollection of the events of that night. The defendant admitted being at or near the scene of the crime both before and after, and does not offer an explanation of his whereabouts during the commission of the crime credible enough to convince the jury of his innocence.

Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty as charged. The standard for finding guilt beyond a reasonable doubt, announced by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) has been met. See State v. Lynch, 436 So.2d 567 (La.1983).

The conviction and sentences are affirmed.

DENNIS, J.,

concurs, disagreeing only with the treatment of the juror exclusion issue.

LEMMON, J.,

concurs, but disagrees that McCall’s prior inconsistent testimony, which was given under oath and was subject to cross-examination, cannot be used as substantive evidence of defendant’s guilt. See Federal Rules of Evidence 801(d)(1).

      . Assignments of Error Nos. 3, 4, 5, 6, 7, 8 and 13 were not argued or briefed. Assignments of error neither briefed nor argued are deemed abandoned. State v. Williams, 362 So.2d 530 (La.1978); State v. Burge, 359 So.2d 616 (La.1978).

      . "C. In noncapital cases, the jury shall be sequestered after the court's charge and may be sequestered at any time upon order of the court." C.Cr.P. 791(C).

      . "A defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges shall have been exhausted before the completion of the panel.
      The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.” C.Cr.P. 800.

      . “The state or the defendant may challenge a juror for cause on the ground that:

      (2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
      (3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.” C.Cr.P. 797(2), (3).

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

      . "A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.” C.Cr.P. 921.

      .“No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.” R.S. 15:487.

      . “Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.” R.S. 15:493.

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

      . "The prosecution has the right to rebut the evidence adduced by the defendant, but the defendant is without right to rebut the prosecution’s rebuttal.” R.S. 15:282.

      . "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.” R.S. 15:464.
      “Every expert witness must state the facts upon which his opinion is based.” R.S. 15:465.
      "The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.” R.S. 15:466.

      . “If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.” C.Cr.P. 883.

      . The testimony of the witnesses (except that of McCall) is summarized:

        The Victim

      McCall was shot as he and the victim struggled. The victim heard McCall cry out, "Bobby Ray, she shot me.” The struggle continued with these two rolling downhill into a ditch behind the apartments. Another person grabbed the gun from the victim and shot her. After the beating and rape, he helped her to dress, looked for her car keys, then held a gun to her head, threatening to kill her.
      An older man came around the corner of the building and asked what was going on. The defendant stuck the gun in the waistband of his pants and pulled his shirt over it. The defendant then helped her to the front of the building. A younger man soon drove up and talked with the defendant. The policemen soon arrived. The victim described her assailant as shorter than she was in heels. She is 5' 6" and was wearing 2 to 2Vi" heels. She remembered that he was wearing a black cap with zipper-like designs on the side, and remembered his eyes. He was a black man and his hair “froed” out from under the cap. His shoulders were wide and his shirt had a crazy design; it was not a solid color. She recalled no facial hair or scars or tatoos.
      At trial the victim recognized the cap in the state’s exhibit of defendant’s clothing. She did not recognize the shirt or the pants, but stated that the shirt had a crazy design. She had recognized the defendant’s voice at the live lineup, but was not absolutely sure of her in-court identification.
      The victim had earlier described her assailant as having freckles or light patches in his face. Robert Glover

      Heard voices outside his window, saw a man with a green silkish shirt, corduroys and a cap, and a woman arguing in the bushes, asked what was wrong. Asked if he should call an ambulance and the police and was told to call the ambulance. He came downstairs to use the phone, and by the time he got there, the man and woman were coming around the building to the front. He went back upstairs to his apartment when there was no one home at the house with the phone.
      Said the defendant’s shirt was tied up and, from his second floor porch, he saw a gun in the waistband. He saw nothing in the man’s hand during the arguing. His pretrial description was: 5' 9", 150 pounds, gun in back of pants, no facial hair, cap with snaps. He had heard two gunshots about one-half hour before he heard the shouting. The victim testified that four shots were fired. Glover saw defendant leave about the time the ambulance and police arrived.

        Kenny Saxton

      Arrived at his apartment building around 3:00 a.m. to find the defendant sitting with the victim on a porch. The defendant asked for help. Says defendant had on jeans, a long shirt he wore out, and a cap. He went with the defendant to see about McCall, and got water for McCall. He then went with the defendant to call the police.

        Officers King and Foster

      Police report says that the defendant told police he was wearing the same clothes when arrested that he wore the night of the crime. Defendant says shirt and underwear were different. Wojtkiewicz

      Did a characterization of body fluids and determined that the defendant is a member of the 35 to 40% of the population that is not excluded as a suspect because of blood types. There was no vaginal fluid found on the defendant’s clothes. The blood found on his clothing was determined to be human blood.

        Rebuttal testimony of Herd The blood on the defendant’s shirt was splattered there when an object hit some fresh blood. It did not drop there, nor was it smeared there by direct contact between the shirt and a bloody spot. The spatters are consistent with the gun beating the victim described.

        Defendant

      He was searching for McCall and heard him moaning, saw the woman lying on the ground undressed. He helped the woman to dress and to get around to the front of the building. He then tried to help McCall, but could not lift him. Gave his name to Kenny Saxton after they went to call the police. He then went to tell McCall’s family that McCall had been shot.
      Defendant is 5' 4", has skin grafts on his thighs, scars on his face and neck, and facial hair. Describes shirt he was wearing the night of the crime the same way victim described the shirt at the first trial when victim said the shirt presented by the district attorney is’not the shirt the assailant was wearing.