text:
    STATE of Louisiana v. Jerry LEWIS.
    No. 84 KA 0123.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, La. by Joseph Lotwick, Asst. Dist. Atty., for plaintiff-appellee.
    Joel Dickinson, Joel B. Dickinson & Associates, Baton Rouge, La., for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

Initially, defendant, Jerry Lewis, was charged by grand jury indictment with manslaughter, a violation of La.R.S. 14:31. Defendant pled guilty and was sentenced to imprisonment for twenty-one years. Defendant filed a pro se motion to withdraw his guilty plea which the trial judge granted and vacated defendant’s plea. However, the trial judge subsequently recalled the order and defendant’s guilty plea and sentence were allowed to stand. Defendant appealed to the Louisiana Supreme Court. In State v. Lewis, 421 So.2d 224 (La.1982), the Supreme Court reversed defendant’s conviction and sentence and remanded the case to the trial court for a determination of whether defendant should be allowed to withdraw his guilty plea. After a hearing the trial court permitted defendant to withdraw his guilty plea. He was then reindicted by the grand jury for second degree murder, a violation of La. R.S. 14:30.1. After a trial by jury, defendant was found guilty as charged and then sentenced to life imprisonment. Defendant appeals urging two assignments of error.

FACTS:

According to the evidence presented by the State, on January 1, 1980, the victim, Dennis Chaney, and several other persons (Calvin Ross, Ivy Christy, Sandy Christy, Lenard Tucker, Jeanette Tucker) were shooting fireworks at 2459 Jackson Avenue, Baton Rouge, Louisiana. Bobby Lewis, defendant’s brother, drove up and parked next door. Several minutes later, defendant and his girlfriend Clarice Wilson also drove up. After exchanging words, Bobby Lewis and Calvin Ross started fighting. Defendant pulled a gun and told the on-lookers to stay out of the fight. Clarice and Dennis Chaney began exchanging words. According to the state’s witnesses, Clarice approached Chaney with a brick. At this point, defendant shot Chaney two times. Chaney subsequently died of these wounds.

Defendant presented several witnesses who testified that Chaney had a rake (a type of comb with long spike teeth) in his hand and was threatening and advancing on defendant when he was shot. In addition the defense introduced evidence that Ross and Chaney had harassed defendant several hours earlier during the day as defendant walked to the store.

ASSIGNMENT OF ERROR NUMBER 1:

Defendant contends that his indictment for second degree murder after his initial indictment for manslaughter constitutes double jeopardy.

Both the United States and the Louisiana Constitutions prohibit placing an accused twice in jeopardy for the same offense. U.S. Const. amend. V; La. Const. art. I, § 15. More particularly, these provisions protect the accused against a second prosecution for the same offense after acquittal. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Hurst, 367 So.2d 1180 (La.1979). Consequently, when a person is found guilty of a lesser degree of the offense charged, the verdict of the court is deemed an acquittal of all greater offenses charged in the indictment; the principle of double jeopardy bars reprosecution on the greater offenses. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

Louisiana Code of Criminal Procedure art. 598 provides in part:

When a person is found guilty of a lesser degree of the offense charged, the verdict or judgment of the court is an acquittal of all greater offenses charged in the indictment and the defendant cannot thereafter be tried for those offenses on a new trial.

In State v. Boudreaux, 402 So.2d 629 (La.1981) the Louisiana Supreme Court held that a guilty plea to a lesser offense does not constitute an acquittal of the greater offense. Therefore, where the verdict entered on the guilty plea is vacated at defendant’s request, reprosecution on the greater offense is not barred.

In the instant case, defendant’s plea of guilty to manslaughter does not operate as an implicit acquittal of second degree murder. Therefore, defendant’s prosecution for second degree murder is not barred on grounds of double jeopardy.

In this same assignment, defendant also contends that reindictment on the harsher charge was a result of prosecutorial vindictiveness.

The leading case on prosecutorial vindictiveness is Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Blackledge, the defendant was convicted of a misdemeanor by a North Carolina State court. After the defendant claimed his right to a trial de novo in a higher court, the prosecutor obtained a superseding indictment charging the defendant with a felony rather than a misdemeanor. Both the original misdemeanor (assault with a deadly weapon) and the subsequent felony (assault with a deadly weapon with intent to kill) charges were based on the same set of facts.

In Blackledge, 94 S.Ct. at 2102-3, the Court stated:

A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. [citation omitted]
Due process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.

In applying Blackledge, the 5th Circuit Court of Appeals in Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978), noted that there is a broad ambit to prosecutorial discretion, most of which is not subject to judicial control. However, the court went on to state that a prosecutor’s discretion to reindict a defendant is constrained by the due process clause. Thus, once a prosecutor exercises his discretion to bring certain charges against a defendant neither he nor his successor may, without explanation, increase the number or severity of those charges in circumstances which suggest that the increase is in retaliation for defendant’s assertion of statutory or constitutional rights.

The court in Hardwick stated that a prosecutor could negate allegations of vindictiveness by proof of mistake or oversight in his initial action, a different approach to prosecutorial duty by a successor prosecutor, or public demand for prosecution on additional crimes allegedly committed, a list the court noted was illustrative rather than exhaustive.

The most recent statement of the law on prosecutorial vindictiveness by the 5th Circuit Court of Appeals appears in U.S. v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir.1983) cert. denied, _ U.S. _, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984). In that case, at 718 F.2d 1365, the court stated:

If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor’s actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created. In trying the issue of vindictiveness, the prosecutor may offer proof of the sort suggested in Hardwick that as a matter of fact his actions were not vindictive. The burden of proof (by a preponderance of the evidence) remains on the defendant who raised the affirmative defense. If, on the other hand, the course of events provides no objective indication that would allay a reasonable apprehension by the defendant that the more serious charge was vindictive, i.e., inspired by a determination to “punish a pesky defendant for exercising his legal rights,” a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of the evidence that events occurring since the time of the original charge decision altered that initial exercise of the prosecutor’s discretion.

The procedural history in the instant case is rather straight forward. Defendant was initially indicted by a grand jury for manslaughter. More than a year later he pled guilty to manslaughter and was then sentenced to twenty-one years at hard labor. Defendant then sought to withdraw his guilty plea. Ultimately, he appealed to the Louisiana Supreme Court, and his case was remanded to the trial court where he was allowed to withdraw his guilty plea. A second indictment was then brought against defendant charging him with second degree murder.

The sequence of events as outlined above provides no “objective indication” as to the reason for the increase in the severity of the charges. Therefore, a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of evidence that events occurring since the time of the original charge decision altered the initial exercise of the prosecutor’s discretion. U.S. v. Krezdorn, 718 F.2d at 1365.

We remand this case to the trial court for a hearing to allow the district attorney an opportunity to rebut the presumption of vindictiveness.

REMANDED.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Anthony THOMAS.
    No. 84 KA 0310.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Denied March 15, 1985.

      Ossie-Brown, Dist. Atty. by Brenda Cres-well, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Anthony Thomas was charged with committing the crime of armed robbery in violation of La.R.S. 14:64. Thomas filed a motion to suppress the confession and physical evidence, which motion was denied by the trial court. Subsequently, Thomas pled nolo contendere, reserving his right to appeal the denial of the motion to suppress. He was sentenced to be imprisoned at hard labor in the custody of the Louisiana Department of Corrections for a term of 15 years, without benefit of probation, parole, or suspension of sentence.

On February 24, 1982, a black male wearing a mask entered the Ellis Grocery store in Baton Rouge, pointed a gun at the female clerk and demanded the money from the cash register. She gave him a white sack of money and he fled. Several days later, two Baton Rouge police detectives, Englade and Cantu, went to the store to question the clerk about the robbery. Upon leaving the store, they were approached by two young girls who stated that they saw defendant come out of the store and run down the street the night of the robbery. The girls did not want to be identified. Another girl who identified herself said that defendant had approached her and some friends the night of the robbery, looking for a stocking mask.

On March 5, 1982, the detectives went to the house of Thomas’ father looking for Thomas. Thomas was there and the detectives asked him to go downtown for questioning since they had no warrant. Defendant accompanied them downtown, was advised that he was a suspect in the robbery, and was given his Miranda rights. Subsequently, he gave a statement confessing to having committed the robbery. The detectives then proceeded to tape his confession after carefully explaining his rights to him again. As a result of the confession, the mask used in the robbery was recovered. Another source led to the recovery of Thomas’ gun which was similar to the gun used in the robbery.

Defendant assigns as error the trial court’s denial of his motion to suppress his confession and the physical evidence. In his brief, defendant makes the following arguments:

1. Defendant’s statement should be suppressed as it was a direct result of an arrest without probable cause.
2. Defendant’s confession was not given freely and voluntarily as he was incapable of waiving his Miranda rights and, furthermore, Detective Englade promised him a more lenient sentence to induce him to confess.

I.

Since Thomas contends that his confession was the product of an illegal arrest, we must first determine whether he was, in fact, under arrest when he gave his statement. “An arrest occurs when the circumstances indicate an intent to effect an extended restraint on the liberty of an accused, rather than at the precise time an officer tells an accused he is under arrest.” State v. Ruffin, 448 So.2d 1274, 1279 (La.1984).

Detective Cantu testified that he and Detective Englade asked Thomas to come with them voluntarily and he agreed. Cantu further testified that no threats were made to get Thomas to go downtown. Finally, Cantu stated he did not believe Thomas could have gotten the impression that he had to go downtown because Thomas was specifically told that he did not have to go with them.

Thomas testified that had he been given a choice, he would not have gone with the officers. He later testified, however, that he was not under arrest when he went downtown. Dr. Braham, a licensed clinical psychologist, testified that Thomas was mentally retarded with an I.Q. of 66 and functions at an age level between 9 and 12 years of age. Dr. Braham further testified that he doubted whether Thomas “could have abstracted a negative response to a request from a policeman.”

Thus, the record reflects conflicting testimony as to whether an arrest was effected prior to taking Thomas downtown or the taking of Thomas’ statement. Since the trial judge denied the motion to suppress, he obviously believed the testimony of Detective Cantu.

A trial judge’s conclusions as to the credibility of the witnesses are to be accorded great weight. State v. Vessell, 450 So.2d 938 (La.1984). The evidence is sufficient to support a finding that Detectives Cantu and Englade did not attempt to effect a restraint, extended or otherwise, of Thomas’ liberty. We find, therefore, that Thomas was not arrested before he confessed. Consequently, we need not address the issue of whether there was probable cause to arrest Thomas.

II.

Thomas alleges that his confession was not given freely and voluntarily because he was incapable of waiving his Miranda rights. Thomas argues that he was incapable of understanding and waiving his rights in that he has an I.Q. of 66 and a mental age between 9 and 12 years of age.

The Louisiana Supreme Court has held that moderate retardation and low intelligence do not of themselves vitiate the ability to knowingly and intelligently waive one’s Miranda rights and make a voluntary confession. State v. Benoit, 440 So.2d 129 (La.1983) and State v. Lewis, 412 So.2d 1353 (La.1982). Rather, the critical factor is whether or not the defendant was able to understand the rights being explained to him. Lewis, 412 So.2d at 1355.

The transcript of the confession shows that the detectives carefully explained the Miranda warnings to Thomas before he gave the taped statement. The detectives did not proceed until they were satisfied that Thomas did understand his rights and was freely and voluntarily waiving them. Thomas’ statement was coherent and contained detailed facts which probably would have been known only by the perpetrator. Further, he understood the questions asked of him and responded with little difficulty.

Additionally, Thomas argues that the State failed to specifically rebut his testimony that Detective Englade promised him a more lenient sentence to induce him to confess. Only Detective Cantu testified at the suppression hearing and the State presented no rebuttal evidence.

Cantu testified that neither he nor Detective Englade made any threats or promises to induce Thomas to confess. Cantu specifically denied making any promise of a more lenient sentence. Cantu also testified that he was present the entire time Thomas was questioned and knew that Englade made no such promise.

“Before a confession or inculpato-ry statement can be introduced in evidence, the State bears a heavy burden of proving affirmatively and beyond a reasonable doubt that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements or promises.” C.Cr.P. art. 703; La.R.S. 15:451; Vessell, 450 So.2d at 942. The State must specifically rebut a defendant’s specific allegations of police misconduct in eliciting a confession. It is not necessary that the State wait until after the defendant’s case-in-chief to meet the allegations, rather it may anticipatorily rebut a defendant’s allegations of force or coercion. Vessell, 450 So.2d at 942-943.

We find Detective Cantu’s testimony that neither he nor Detective Englade made any threats or promises to induce the confession sufficiently rebutted Thomas’ allegations. Further, Thomas’ testimony contained several inconsistencies which cast doubt upon Thomas’ credibility.

The trial court did not err in finding that Thomas knowingly and intelligently waived his Miranda rights and that the confession was not the result of threats or coercion. The denial of the motion to suppress the confession and physical evidence was proper.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . "Downtown” is a colloquialism for the Baton Rouge Police Department office.

      . Detective Englade did not testify at trial but did testify at a preliminary hearing conducted prior to the hearing on the motion to suppress. Englade’s testimony was consistent with Cantu's testimony.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Clarence S. DAVIS.
    No. KA 84 0432.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Bryan E. Bush, Jr., Baton Rouge, for defendant Clarence S. Davis.
    T. Barry Wilkinson, Asst. Dist. Atty., Port Allen, for The State of Louisiana.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   LOTTINGER, Judge.

Clarence Davis was charged by bill of information with armed robbery in violation of La.R.S. 14:64. Defendant pled not guilty and filed a motion to suppress physical evidence seized as the result of execution of a search warrant. The motion to suppress was denied after a hearing. After a trial by jury, defendant was found guilty as charged. The trial court sentenced defendant to imprisonment in the custody of the Louisiana Department of Corrections for a term of forty-five years, without benefit of probation, parole or suspension of sentence.

Defendant brings this, appeal urging three assignments of error:

1. The trial court erred in denying defendant’s motion to suppress evidentiary items taken from defendant’s residence through a defective search warrant.
2. The trial court erred in denying defendant’s motion for a mistrial when the prosecutor alluded, in his closing argument, to matters outside of the record.
3.The trial court erred in not granting a new trial when the verdict was contrary to the law and evidence.

Assignments of error nos. 2 and 3 were not briefed and are thereby considered abandoned. Uniform Rules Courts of Appeal, Rule 2-12.4.

FACTS

On January 25, 1983, a lone gunman, armed with a pistol, robbed the Brusly Branch of the Bank of West Baton Rouge. Bank employees who observed the robber noted that he was a black male, wearing a light colored skull cap and had long, black, curly, shoulder-length hair. The teller who was robbed stated that the robber removed a black colored automatic weapon from inside his vest. He was observed driving away in a tan colored, small-sized foreign automobile.

Police investigation of the incident was still in progress when Joseph Murray was arrested in early April of 1983, by authorities of East Baton Rouge Parish for an unrelated crime. Through contacts with East Baton Rouge law enforcement officers, Deputy Lloyd Talbot of the West Baton Rouge Parish Sheriff’s Office, learned that Joseph Murray might have some information involving the perpetrator of the Brusly bank robbery. During the second meeting between Deputy Talbot and Joseph Murray, details of the Brusly bank robbery were provided by Murray. Deputy Talbot testified at trial on the merits that Murray told him that Clarence Davis, defendant herein, had told Murray that he had committed the Brusly bank robbery. Details of the robbery including route of travel, type of gun used, clothing and wig worn as a disguise, were also alleged by Murray to have been told to him by defendant. Deputy Talbot also testified that Murray noted that he had observed the cap, vest, wig and gun used by defendant while visiting defendant’s apartment at 2223 Beech Street in Baton Rouge and, noted that defendant shared that residence with a black woman named “Adrian.” ' Deputy Talbot was able to verify that utilities at that residence were in the name of Adrian Davis and that registration of a 1971 T-Bird automobile he observed parked in the garage at that address belonged to Clarence Davis.

Pursuant to the information provided by Joseph Murray and corroboration procured by Deputy Talbot, an application for search warrant was prepared with Deputy Talbot and a Baton Rouge police officer serving as affiants. In that application, Joseph Murray was identified as a “cooperating individual”. A search warrant authorizing search of the 2223 Beech Street apartment and a Ford automobile registered to Clarence Davis for evidence tending to prove armed robbery was authorized on April 7, 1983. The warrant was executed on the day of issuance and relevant items recovered included: a beige and brown vest, a brown wig, eleven ski caps, an OMC .380 automatic pistol, and a drawstring bag containing a makeup kit. Following this search, defendant was arrested and charged with the instant offense.

ASSIGNMENT OF ERROR NO. 1

By means of this assignment, defendant maintains that the trial court erred when it denied defense motion to suppress physical evidence seized during execution of the search warrant. In particular, defendant urges that the affidavit contained hearsay statements which fail to sustain the reliability of the informant or of the information itself.

According to the affidavit:

On 1/25/83 the Bank of West Baton Rouge, Brusly branch, was robbed by a B/M wearing a light color knit cap, a brown or beige vest, carrying a blue-steel semi-automatic pistol, and believed to be wearing a black shoulder-length wig. On 4/6/83 affiants were told by a cooperating individual (C.I.) that Clarence Davis, who lived at [garage apartment located at the fear of 2223 Beech St.,] had told him, in detail, about having committed this robbery. C.I. further stated that he had been in this residence at 2223 Beech on several occasions, most recently on 4/4/83, and, at various times, had seen in the residence all items listed above [a blue steel semi-automatic pistol; a black shoulder length wig; a light-colored knit cap; a brown or beige vest]. Affiants have independently verified several details of the C.I.’s account, including the description of the car owned by Davis. Affiants were told by C.I. that Clarence Davis is living with a B/F named ‘Adrian’ at the above described location. Affiants contacted Gulf States Utilities and were told that electrical service to ‘garage apartment at 2223 Beech St.’ is listed to an Adrian Davis.
Affiants have established surveillance on this residence and the listed vehicle, which was described by C.I., is presently at the residence. The vehicle is registered to Clarence Davis.

Defendant relies heavily on Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) as the basis for his claim that the instant affidavit was insufficient to provide the issuing magistrate with the information needed to establish the reliability of the informant or his information. Aguilar, supra, and a closely related case, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) required that an affidavit based on hearsay meet a two-pronged test.

However, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court discarded the two-prong test and adopted the “totality of circumstances” test.

In examining the totality of circumstances, we note that the affidavit clearly sets forth the basis of knowledge. The issuing magistrate was informed of the underlying circumstances from which the informant concluded that defendant had committed the instant robbery. The informant, later identified by the state as Joseph Murray, claimed to have been told by defendant that he had committed the instant robbery and to have himself viewed in defendant’s residence the weapon, clothing, and wig alleged to have been used by defendant in perpetrating the offense. This provided an adequate basis to assure that the informant, if he is inherently credible or if there is reason to believe in his information on this occasion, obtained the information by personal observation and not through mere rumor. See State v. Jeffcoat, 403 So.2d 1227 (La.1981).

The affidavit, however, does not provide any basis for a belief in the inherent credibility of the informant. The affiant did not disclose any track record from which the magistrate could conclude that the unidentified informant was credible. In fact, information outside the affidavit reveals that Murray is a criminal without inherent credibility.

Nevertheless, Murray’s statements to the police appear reliable on this particular occasion despite his lack of inherent credibility. Murray’s tip focused on a specific individual and included his address, and a description of items known by police to have been used by the robber of the Brusly bank. In reasons for judgment denying the motion to suppress, the trial judge noted that “the items that were described to the deputies by the informant were items that on the face of the warrant, indicate were used in the armed robbery of the Bank of West Baton Rouge, Brusly Branch”.

In State v. Paciera, 290 So.2d 681 (La.1974), the Louisiana Supreme Court noted that specific independent corroboration of the accuracy of a report by an unidentified informant supports the credibility and reliability of the unidentified informant. In the instant case, the affidavit reveals that the affiants corroborated defendant’s residence address as provided by the informant. However, more significantly, the informant provided facts which were corroborated by reference back to the report of criminal conduct which occurred on a prior occasion, i.e., the Brusly bank robbery. When an investigation “makes it appear that the informer has provided facts which could not have been invented or which would not even have been perceived as incriminating except for the report of the earlier crime, then the chance that the informant has lied has been significantly reduced.” See, W.R. LaFave, Search and Seizure, A treatise on the Fourth Amendment, Vol. 1, Ch. 3, § 3.3 (1978) at p. 558.

Considering all of the relevant circumstances, we conclude that the issuing magistrate had a reasonable basis for finding the informant’s information reliable on this particular occasion, for finding an adequate basis to assure that the informant obtained his information by personal observation, and ultimately for determining that there was probable cause to issue the search warrant. Accordingly, the trial court’s ruling denying the motion to suppress was correct. This assignment of error is without merit.

Therefore, for the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. James Mickeal JOHNSON.
    No. 84-KA-0444.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Ernest Smithling, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

On February 2, 1983, James Mickeal Johnson (incorrectly spelled “Michael” and “Mickael” in the record) was indicted for one count of aggravated rape under LSA-R.S. 14:42 and one count of aggravated burglary under LSA-R.S. 14:60. On February 7, after waiving formal arraignment, he pleaded not guilty to those charges. On March 24, defendant’s counsel obtained an order appointing a sanity commission to determine whether the defendant was competent to stand trial and assist counsel. On May 6, at the sanity hearing, the question was submitted on reports of the two appointed commission doctors. The trial court found that defendant was able to assist counsel with his defense.

On August 24, the day set for trial, defendant moved to change his pleas from not guilty to guilty on each count. After a Boykin examination, the trial court concluded that the defendant understood the significance of his pleas and made a knowing and intelligent waiver of his rights. The trial court therefore accepted the defendant’s guilty pleas, ordered a presen-tence investigation report, and deferred sentencing until November 30, later moved to February 1, 1984. On January 27, 1984, prior to sentencing, the defendant filed a motion to withdraw his guilty pleas. After a hearing, the trial court denied the motion. Thereafter on February 1, 1984, the court sentenced the defendant to life imprisonment without benefit of probation, parole, or suspension of sentence on the aggravated rape charge, and thirty years imprisonment on the aggravated burglary charge, with the sentences to run concurrently.

The defendant appeals the denial of his motion to withdraw his guilty pleas, urging two grounds for reversal. He contends first that, despite the findings of the commission doctors that he was competent to stand trial and assist counsel in his defense, he was nonetheless unable to understand the Boykin examination or make a knowing and voluntary waiver of his rights because of his “psychological profile.” Second, he contends that the guilty pleas were made not as a result of his own volition but at the suggestion of his court appointed attorney.

A trial judge may permit the withdrawal of a guilty plea at any time before sentencing. LSA-C.Cr.P. art. 559. His decision is discretionary, subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569 (La.1981); State v. Franks, 391 So.2d 1133 (La.1980), cert. denied 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818 (1981).

Defendant offers no substantiation to his claim that his “psychological profile” indicates that he was unable to understand the judge’s explanation of the seriousness of the charges against him or the consequences of his pleas.' He concedes in his brief that the Boykin examination was sufficient to inform any person of average intelligence of the nature of the proceedings and of the rights waived. In fact, there is nothing in the record demonstrating or even explaining what his “psychological profile” is, except perhaps the findings of both sanity commission doctors that the defendant has a history of alcohol and drug abuse. In spite of that history, however, both doctors were quite specific in their findings that the defendant was coherent, well oriented, cooperative, aware of the nature of the proceedings against him, the seriousness of the charges and the possible sentences he faced if found guilty, and able to assist in his defense. More important, at the Boykin hearing, the trial judge conducted a thorough examination of the defendant to determine whether he fully understood the charges and sentences he faced, including life imprisonment for the aggravated rape charge. Furthermore, the trial judge gave the defendant a painstaking review of the rights that he was waiving by pleading guilty, including the rights to- a speedy and public trial by jury, to confrontation of witnesses, to compulsory process, and to the privilege against self-incrimination. Our review of that examination convinces us that the defendant fully understood the consequences of his pleas.

We find the defendant’s second argument disingenuous. The defendant answered the judge unequivocally that his guilty pleas were offered freely, voluntarily, and of his own accord. At the close of the examination, his attorney offered the following explanation:

Mr. Johnson and I discussed this case in some detail several times. I was up at the prison until well after eight last night talking about it. He is the first person I have ever represented who has pled guilty to life without benefit. I hope it is my last. But we discussed it in some detail. I think what prompted Mr. Johnson most was remorse for what he did. He has no history of any type of sexual crimes. He had been drinking this particular night, but it was voluntary intoxication so that’s no defense. The evidence is overwhelming, we discussed it in some detail. I won’t get into that, but I just want to state for the record, Mr. Johnson fully confessed both on cassette tape and on video tape shortly after his arrest. He showed remorse from the very beginning. I think that’s what prompted him to plead guilty today. And that is about all I can say.

Moreover, we do not believe that a guilty plea is made less voluntary or less informed by the considered advice of one’s attorney, whether retained or appointed, in the absence of fraud, intimidation, or incompetence of counsel, none of which are present in this case.

Although we believe the defendant's decision to plead guilty was his own, if the defendant feels he was not given competent advice by his attorney, he may file an application for postconviction relief. LSA-C.Cr.P. art. 924 et seq. See State v. Boatright, 406 So.2d 163 (La.1981). However, our examination of the record reveals a “meticulous and conscientious effort” by the trial judge to explain to the defendant the serious consequences of his pleas and to determine whether his pleas were knowingly and voluntarily given. State v. Johnson, 406 So.2d at 572.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

       Defendant was charged under docket # 2-83-162 with aggravated rape and aggravated burglary, and under docket #2-83-163 with simple kidnapping. A motion for appeal was filed as to docket #2-83-162. However, defendant's assignments of error were filed as to both docket numbers and the brief addresses both docket numbers. Despite this, the appeal was filed only as to docket #2-83-162, and therefore, only the aggravated rape and aggravated burglary are properly before us.


text:
    STATE of Louisiana v. Robert L. JONES.
    No. 84 KA 0492.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Ossie Brown, Dist. Atty. by Michael Erwin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Leon Jackson, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before'EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Robert L. Jones, was charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62. After a bench trial, defendant was found guilty as charged, and was subsequently sentenced to serve nine years at hard labor. Defendant has appealed his sentence, alleging that the trial court did not adequately comply with the sentencing guidelines of La. Code Crim.Pro. art. 894.1, and that the trial court imposed an excessive sentence.

This court has noticed, ex proprio motu, error patent on the face of the record which requires us to reverse this conviction and remand the matter for a new trial. Defendant was charged with a felony, and was thus entitled to a trial by jury. LSA-Const. Art. I, sec. 17 (1974). Although a defendant may waive this right, any waiver must be knowingly and intelligently made. La.Code Crim.Pro. art. 780. Waiver of this right is never presumed. State v. McCarroll, 337 So.2d 475 (La.1976); State v. Suggs, 432 So.2d 1016 (La.App. 1st Cir.1983).

The minute entries herein do not reflect that defendant waived his right to a jury trial. Since waiver of this right cannot be presumed, the conviction rendered herein is unconstitutional, and defendant must be given a new trial in accordance with the opinions expressed herein.

REVERSED AND REMANDED.


author: GROVER L. COVINGTON, Chief Judge.

text:
    STATE of Louisiana v. Lester DUFRENE and Michelle Dufrene.
    No. KA 84 0520.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Richard A. Swatz and Margaret A. Coon, Asst. Dist. Attys., Covington, for appellee.
    David J. Knight, Covington, for appellants.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this Court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this Court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

Defendants, Lester and Michelle Du-frene, were charged by indictment with cruelty to a juvenile, a violation of La.R.S. 14:93. Defendants pled not guilty and, after a trial by jury, were found guilty. The trial judge sentenced each defendant to serve five years at hard labor and to pay a fine in the amount of $750.00. Defendants appeal their convictions and sentences, assigning eleven errors.

On Friday, July 16, 1982, defendants left their four month old daughter, Denise, in the care of Mrs. Dufrene’s mother, step-father, and sister. On Sunday, July 18, 1982, between 1:00 and 2:00 p.m., Dufrene picked up the child and brought her back to their trailer. During the afternoon, Mr. and Mrs. Lester O’Brien, friends of the Du-frenes, and their infant daughter visited with defendants. The O’Briens left at approximately 6:00 p.m. At 7:20 p.m., that same evening, defendants took Denise to the emergency room at Slidell Memorial Hospital. At the emergency room, Denise was examined by her pediatrician, Dr. Har-ri Ann Watson.

Dr. Watson testified that in examining the child she found a large hematoma on the left side of the child’s head. X-rays revealed a fracture of the right femur, which according to Dr. Watson was approximately one week old. In addition, the child had a loose tooth and multiple bruises of varying age and severity over her entire body, including her neck. In concluding her testimony, Dr. Watson was of the opinion that beyond any doubt Denise was a victim of child abuse.

Mrs. Dufrene’s step-father, Kenneth Co-meaux, testified that Denise spent the weekend with him and his wife. He stated that Friday night when the child arrived at his home she had several bruises on her body. He was then shown photographs of Denise that had been taken at the hospital and depicted the hematoma on her head. Comeaux testified that the child did not have the head injury when she left his house that Sunday afternoon.

Deanna Comeaux, Michelle Dufrene’s sister, testified that she noticed bruises on the child from time to time. Ms. Comeaux stated that each time this occurred defendants would explain the bruises by saying that the child had fallen, or rolled over a rattle, or rubbed her face on a sheet. On one occasion, when the infant had a bloody nose, Lester Dufrene told Deanna that he had put on brakes and the child had fallen forward (sustaining the injury).

Mrs. O’Brien testified that she, her husband and their daughter visited defendants Sunday, July 18th from 4:30 to 6:00 p.m. During that time, Denise was awake and Mrs. O’Brien played with her. Mrs. O’Brien testified that the baby did not have a bruise on her head or bruises on her neck.

The defendants each gave a different version of how the child became battered and bruised. The jury accepted the evidence presented by the state as showing that the defendants had intentionally battered the infant over a considerable period of time, causing unjustifiable pain and suffering.

ASSIGNMENT OF ERROR NUMBER 1:

In this assignment of error, defendants argue that the trial judge erred in excusing juror Kevin L. Bourda for cause.

On voir dire examination, Bourda stated that he and defendant Lester Dufrene had attended school together and that they were “pretty good friends.” In response to a series of questions, Bourda stated that it would be “pretty difficult” for him to be impartial, that his past association with Du-frene would color his decision, and that, if Dufrene testified, he would tend to believe him “because I know him.” Upon motion of the state, the trial judge excused Bourda for cause.

The state or the defendant may challenge a juror for cause on the ground that the relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict. La.C.Cr.P. art. 797(3).

A trial judge is vested with broad discretion in ruling on a challenge for cause and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Sugar, 408 So.2d 1329 (La.1982).

Based on the answers given by Bourda, the trial judge found that Bourda’s prior relationship with Dufrene would prevent Bourda from being a fair and impartial juror. State v. Albert, 381 So.2d 424 (La.1980). A review of the voir dire examination convinces us that the trial judge did not abuse his discretion in excusing Bour-da.

In any event, the record indicates that the state did not exercise all of its peremptory challenges. Therefore, even if the trial judge’s ruling on this challenge for cause were erroneous, it did not have the effect of granting the state more peremptory challenges than entitled by law. La.C. Cr.P. art. 800; State v. Jones, 408 So.2d 1285 (La.1982).

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 2:

Defendants argue that the trial judge erred in failing to excuse prospective juror Carmen A. Quirk for cause.

In reviewing Quirk’s examination on voir dire, we note that she originally expressed some difficulty in applying the legal principle of presumption of innocence. The following exchange occurred between defense counsel and Mrs. Quirk:

Q. Would you conclude that they must be guilty of something because of the sole fact that they were arrested?
A. Something, yes.
Q. You would conclude that they were guilty of something solely because they were arrested?
A. I think so.
The trial judge then questioned Mrs. Quirk as follows:
BY THE COURT: The court is going to ask Mrs. Quirk some more questions. Mrs. Quirk, can you separate in your mind the concept of the state proving someone guilty beyond a reasonable doubt and the concept that the law enforcement people may or may not have probable cause just to make an arrest. In other words, a police officer may come in here right now and arrest you. He may have probable cause to arrest you and he may not have probable cause to arrest you. It doesn’t matter. In either event, if you were to be put to trial for that crime, for whatever you were arrested, it would be incumbent upon the state to prove you guilty beyond a reasonable doubt, and until the state proves you guilty beyond a reasonable doubt, you are innocent.
A. I understand.
BY THE COURT: Now can you separate those two concepts and can you accept the proposition as a matter of law if the state does not prove each and every element of the crime beyond a reasonable doubt, and the burden is much greater than proving probable cause, and if they don’t meet that burden of proof, it is the duty of the jury to acquit the defendants, or the defendant, as the case may be. Can you accept that and could you apply that standard according to the instructions that I give you at the conclusion of the trial?
A. Yes, I think I can.
BY THE COURT: And are you telling me simply because a person was arrested you could still do that and that would not influence you to find guilt beyond a reasonable doubt, that you could listen to the witnesses from the witness chair and make a fair and impartial determination as to that person’s guilt?
A. From all the testimony?
BY THE COURT: From all the testimony, yes ma’am.
A. Surely I could. (Emphasis added).

The trial court is vested with broad discretion in ruling on challenges for cause and the trial court’s ruling will be reversed only when it appears, upon review of the voir dire as a whole, that the court’s exercise of its discretion has been arbitrary or unreasonable, resulting in prejudice to the accused. State v. McIntyre, 381 So.2d 408 (La.1980); State v. Stovall, 439 So.2d 618 (La.App. 1st Cir.1983). Furthermore, a charge of bias may be removed by the rehabilitation of a prospective juror. State v. Webb, 364 So.2d 984 (La.1978).

After carefully examining the record, we cannot say that the trial judge abused his discretion in believing that Mrs. Quirk could render an impartial and fair verdict according to the law and the evidence. State v. Stevenson, 447 So.2d 1125 (La.App. 1st Cir.1984).

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 3:

Defendants contend that the trial court erred in denying defendants’ motion for a recess based on the absence of a witness.

Trial commenced on October 10, 1983. On the morning of October 11, 1983, prior to the opening statements being presented by the state and defendants, defendants requested a recess in order to secure the presence of a witness, Helen Comeaux, the mother of Mrs. Dufrene. Defendants argued that the child had been in the care and custody of Mrs. Comeaux for two and a half days immediately preceding her visit to the hospital and therefore, Mrs. Co-meaux’s testimony was important. In addition, defendants argued that Mrs. Co-meaux’s testimony would be material in determining how Mrs. Dufrene had treated and raised her baby in general. The trial judge denied defendants’ motion for a recess, noting that defendants had failed to subpoena the witness prior to trial.

A motion for recess is evaluated by the same standards as a motion for continuance. State v. White, 389 So.2d 1300 (La.1980). To be entitled to a continuance to secure the presence of a witness, a defendant must state facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at trial; facts and circumstances showing a probability that the witness will be available at the time to which trial is deferred; and, facts showing due diligence used in an effort to procure attendance of the witness. La.C.Cr.P. art. 709.

In the instant case, defendants’ failure to request a subpoena until after the jury has been selected reflects a lack of due diligence in their efforts to secure the attendance of Mrs. Comeaux at trial. In addition, defendants did not state with sufficient particularity the facts to which' Mrs. Comeaux was expected to testify.

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 4:

Defendants argue that the trial court erred in allowing the state to introduce ten photographs of the child victim during the re-direct examination of Detective Emily Holden.

On direct examination, Detective Holden testified that numerous photographs were taken of the child the night she was brought into the hospital. She then testified as to the physical condition of the child. During this time, she identified three photographs which were then introduced into evidence. On cross examination, she was asked about the remainder of the photographs that had been taken. She stated that they were being reprinted and were to have been in court at 9:30 that morning. Defense counsel then questioned her concerning the description and placement of bruises on the child’s body. On re-direct examination, Detective Holden identified ten photographs that had been taken on the night the child was brought to the hospital and that depicted bruises about which Detective Holden had previously testified in detail. The photographs were then admitted into evidence over defense counsel’s objection.

On both direct and cross examination, the witness testified as to the existence of the photographs and as to the victim’s numerous bruises. A review of the record reveals that nothing new came before the jury when the state introduced the photographs op re-direct. State v. Williams, 341 So.2d 370 (La.1976).

ASSIGNMENT OF ERROR NUMBER 5:

Defendants contend that the trial court erred in refusing to order that the child be brought to court. Initially, defendants requested and were granted an instanter subpoena. The record reflects that the sheriff was unable to serve the subpoena. Defendants then requested that the trial judge order the child be brought into court, not in order for the child to testify, but rather for the jury to “see and view the alleged victim in this case.” The trial judge denied defendants’ request.

The right of a person charged with a' criminal offense to have compulsory process for obtaining witnesses in his favor is embodied both in the federal and state constitutions as well as in the statutory law of this state. U.S. Const. Amendment 6; La. Const, art. 1, sec. 16; La.C.Cr.P. art. 731. The right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Latin, 412 So.2d 1357 (La.1982).

In the instant case, defendants were not attempting to have the child brought into the court for testimonial purposes pursuant to the right of compulsory process. Defendants were rather seeking to use the child for demonstrative or evi-dentiary purposes. A trial judge’s ruling as to the relevancy of evidence should not be disturbed absent a showing of clear abuse of discretion. See State v. Joseph, 407 So.2d 712 (La.1981). Based on this, we find no error in the ruling of the trial judge.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 6:

In this assignment of error, defendants contend that the trial court erred in qualifying Dr. Harri Watson as an expert and in allowing her to state an opinion as to whether the child’s injury were the result of abuse.

The test of the competency of an expert is her knowledge of the subject about which she is called upon to express an opinion, and before any witness can give evidence as an expert her competency so to testify must have been established to the satisfaction of the court. La.R.S. 15:466. Competency of an expert witness is a question of fact within the sound discretion of the trial court, and its ruling will not be disturbed unless clearly wrong. State v. Sherer, 411 So.2d 1050 (La.1982). At the time of trial, Dr. Watson had been a practicing pediatrician for five years. During her pediatric training she saw several hundred abused children. Since that time, she has participated in several continuing education programs in the area of child abuse. In addition, she has previously testified as an expert.' In light of her education and practical experience, we find that the trial judge did not abuse his discretion ruling her qualified as an expert.

Defendants also argue in this assignment of error that the trial judge erred in allowing Dr. Watson to state her opinion as to whether the child was the victim of child abuse.

The general rule is that lay witnesses can testify only as to facts within their personal knowledge. La.R.S. 15:463. However, 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. La.R.S. 15:464. Each expert witness must state the facts upon which his opinion is based. La.R.S. 15:465.

Dr. Watson testified that in her opinion the injuries sustained by the child were the result of abuse. She based her opinion on the type of injury and the age of the child. There was no error in allowing Dr. Watson to give her opinion during her testimony.

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 7:

In this assignment of error, defendants argue that the trial judge erred in not allowing the defense to re-cross examine Dr. Watson.

On direct and cross examination, Dr. Watson testified as to the condition of the child when she was first brought to the hospital. In addition, she testified as to the explanations given by defendants for the child’s injuries. She stated that defendants explanations were not consistent with the child’s injuries. In response to questions by the state on re-direct examination, Dr. Watson expressed the opinion that there was no doubt in her mind that the child was the victim of child abuse. Defendants then requested the opportunity to re-cross examine Dr. Watson on her opinion that the injuries sustained by the child were a result of child abuse. The trial judge denied defendants’ request.

All of the questions posed by the state on re-direct examination concerned matters brought out previously on direct and cross examination. Refusal to permit re-cross examination under these circumstances was proper. State v. Milby, 345 So.2d 18 (La.1977).

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 8:

In this assignment of error, defendants contend that the trial judge erred in refusing to admit into evidence recent photographs of the victim.

To be admissible in a criminal proceeding, evidence must be relevant to a material issue. La.R.S. 15:435. Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. La.R.S. 15:441. The trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981).

In the case at bar, the injuries to the child occurred when she was four months old. Defendants sought to introduce photographs of the child which had been taken at her first birthday party. Such photographs were not relevant. We find no abuse of discretion on the part of the trial judge.

There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER 9:

Defendants contend that the trial judge erred in allowing the district attorney to argue outside the scope of the evidence.

On appeal, defendants have set forth several instances in which they allege that the district attorney argued outside the scope of the evidence. However, a review of the record reveals that no objections were made to the district attorney’s remarks during argument.

The issue as to propriety of closing argument remarks is not preserved for review where defense counsel makes no objection to the statement either during argument or after the argument. State v. Craddock, 435 So.2d 1110 (La.App. 1st Cir.1983).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 10:

Defendants contend that the trial court erred in denying their motion for a post verdict judgment of acquittal. Specifically, defendants argue that cruelty to a juvenile was not proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence.

The standard of review for sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. La. C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). La.R.S. 15:438 establishes the rule of circumstantial evidence: “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. State v. Nealy, 450 So.2d 634 (La.1984).

In brief, defendants argue that a reasonable hypothesis of innocence exists for the child’s injuries. Defendants contend that the broken leg could have occurred when the child caught her leg in the rungs of her baby bed and that the cut on the inner lip resulted when the baby dropped her head onto someone’s shoulder thus forcing her lip against her teeth. In addition, defendants contend that the various bruises were caused by the child rolling over a rattle or other toy in her baby bed. At trial, Du-frene stated that the large bruise on the side of the child’s head may have resulted when the child rolled over and bumped into a coffee table leg.

Our review of the record reveals that a jury could have reasonably concluded, to the exclusion of every reasonable hypothesis of innocence, that defendants were guilty of cruelty to a juvenile. The victim in this case was only four months old. She was able to turn from her back to her stomach and from stomach to her back. However, she could not sit unaided, nor could she crawl. The jury properly rejected defendants premise that this young child, who had not developed sufficiently to be mobile, had caused all of her own injuries. In light of the age of the child, her lack of physical development, the excessive number of injuries and the severity of the injuries the jury was justified in rejecting defendants’ theories as to the origin of the child’s injuries and finding defendants guilty.

ASSIGNMENT OF ERROR NUMBER 11:

In this assignment of error, defendants contend that the trial judge failed to comply with the sentencing criteria set forth in La.C.Cr.P. art. 894.1. Defendants also contend that the trial judge imposed excessive sentence.

The Code of Criminal Procedure sets forth the items which must be considered by the trial judge before passing sentence. La.C.Cr.P. art. 894.1. The judge need not recite the entire checklist of 894.1, but the record must reflect that the judge adequately considered the guidelines. State v. Davis, 448 So.2d 645 (La.1984).

In sentencing defendants, the trial judge stated that he had considered the evidence adduced at trial and the pre-sentence investigation report. He found that defendants had, without any provocation, caused serious harm to the victim, a small helpless child. He also found the conduct of defendants was the result of circumstances likely to recur, and therefore there was an undue risk that defendants would commit another crime upon their child. He further stated that any lesser sentence would deprecate the seriousness of the crime. We find the record shows that the trial judge stated sufficient reasons to comply with the statutory criteria set forth in La.C. Cr.P. art. 894.1.

A majority of the Louisiana Supreme Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment and that, although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981).

The authorized sentence for cruelty to juveniles is a fine of not more than $1,000.00 or imprisonment for not more than ten years, with or without hard labor, or both. In the present case, each defendant was sentenced to five years at hard labor (one-half the maximum) and a $750.00 fine.

Our review of the record leads us to conclude that the sentence imposed on defendants was not excessive. The trial judge notes, as follows: “The court having considered the presentence investigation report, the findings and recommendations made therein, the evidence adduced at the trial, the court makes the following findings and conclusions as directed by Article 894.1 of the Louisiana Code of Criminal Procedure. The defendants’ conduct caused serious harm to the victim, a small helpless child, which could have resulted in death or permanent disability to the child. The defendants should have recognized their conduct would have caused serious harm. There is no evidence the defendants acted under any provocation. There is no evidence to justify or excuse either of the defendants’ conduct. The victim, a small child, was innocent and helpless and could in no way provoke, produce or facilitate the commission of this heinous crime. There is no way that the victim could be compensated for this crime. Each of the defendants has personalities made up of factors counterproductive to those of law-abiding citizens. The conduct of the defendants was the result of circumstances likely to recur. The defendants’ character and attitudes are indicative that similar conduct may recur in the future. The defendants are unlikely to respond affirmatively to probationary treatment. The court also finds that imprisonment would not entail excessive hardship to the defendants, to each other, or to their dependents. This heinous crime was committed against a young child, four months of age, who suffered a fractured femur, an extremely large hematoma of the head, and multiple bruises. Not only throughout the trial, but thereafter, each of the defendants has steadfastly denied their guilt and have never expressed genuine remorse. The defendants apparently have no reservation or have had no reservations about either leaving their child with someone else or leaving the child unattended. The defendants are impulsive and they have in the past inflicted physical violence upon each other. They become easily upset, irritated and aggravated and are susceptible of physical, aggressive and tantrum behavior. They are more concerned with their own well being, satisfaction and gratification than the well being of their child. The defendants deny that they need any psychological help to aid them in controlling their emotions and their self discipline is very poor. Further, they are unable to cope with their frustrations and they have personalities indicative of underlying anger and hostility that provokes or reflects volatile conduct, especially faced with their frustrations. Accordingly, the court finds that there is an undue risk of these defendants committing another- crime either upon their child or upon their child that they now expect during any period of suspended sentence or probation. The defendants are in need of correctional treatment and custodial care that they can be provided most effectively by their commitment to an institution. Any lesser sentence than I am about to impose would deprecate the seriousness of the crime that they have committed. Accordingly, the court sentences each defendant to serve a period of five years with hard labor under the direction of the State of Louisiana Department of Corrections, and each defendant to pay a fine of $750.00.”

We do not find that the trial judge, under the circumstances, abused his discretion in imposing the above sentence. State v. Freeman, 409 So.2d 581 (La.1982).

We find no merit in this assignment of error.

DECREE

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

AFFIRMED.

      . At one point during closing arguments, the district attorney implied that defendants had slapped and pinched the child. Defense counsel interrupted the district attorney stating:
      Your Honor, I don’t believe there has been any evidence in this case of the defendants slapping the baby. I just request [the district attorney] keep his argument to the evidence that was shown in the case.
      The trial judge then ordered that all statements be confined to the evidence that had been produced.
      Even if we were to consider defense counsel’s statement an objection, see State v. Michel, 422 So.2d 1115 (La.1982) in which the court stated: “If an objection is sustained, defendant cannot on appeal complain of the alleged error unless at trial he requested and was denied either an admonition to disregard or a mistrial.”

      . After trial, defense counsel moved for a post verdict judgment of acquittal and a new trial. The trial judge denied both motions. In brief, defendant argues both. However, he only assigned denial of the post verdict judgment of acquittal as error.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Leland M. JOHNSON.
    No. KA 84 0527.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Kay Bates, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Vince Wilkins, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ..
   CRAIN, Judge.

FACTS

On January 11, 1980, Dartha Watts, a bookkeeper at Ben Peabody’s Exxon Station in Baton Rouge, left work between 1:00 and 1:30 p.m. As she walked to her car, which was parked at the station, she noticed a black male standing and talking to another black male sitting in the driver’s seat of an olive green Buick LaSabre. She entered her car but could not drive away because her path was blocked by the Buick. The black male who was standing by the Buick walked over to her car and told Mrs. Watts that she was wanted inside the station. She hesitated for a few minutes, then got out of her car. When she did so the same man grabbed her purse, knocking her down in the process. He then jumped into the back of the Buick LaSabre as the car sped away.

Immediately after the crime occurred, an unknown woman who had been walking on the nearby sidewalk, gave Mrs. Watts the last three license numbers of the car that sped away.

On April 30, 1980, defendant, Leland Johnson, was charged by bill of information with purse snatching in violation of LSA-R.S. 14:65.1. Defendant entered a plea of not guilty. Trial began on November 28, 1983, and a jury of six found him guilty on the same day. On February 28, 1984, the trial judge imposed the maximum sentence of twenty years, with credit for time served.

ASSIGNMENTS OF ERROR

Defendant asks for reversal of his conviction based upon the following assignments of error:

1. The trial court erred when it allowed into evidence the hearsay statements of an unknown bystander.

2. The trial court erred when it allowed the previous testimony of an absent witness to be read by the jury.

3. The trial court erred when it allowed appellant to be convicted contrary to law and evidence.

4. The trial court erred when it imposed an excessive sentence on appellant.

ASSIGNMENT OF ERROR NO. 1

Mrs. Watts testified at trial that immediately after the incident a woman approached her and told her the last three numbers of the license plate of the LeSa-bre. Defendant objected to admission of this statement as hearsay. The trial judge ruled that the statement was admissible under the res gestae exception to the hearsay rule.

Though a statement is hearsay, if it forms a statutory or jurisprudentially developed exception to the hearsay rule, it is admissible into evidence. La.R.S. 15:434, State v. Smith, 285 So.2d 240 (La.1973). The parties here argue the admissibility of the testimony under the res gestae exception to the hearsay rule. The statement is unquestionably hearsay. Quite possibly the testimony is admissible as part of the res gestae. However, there are two other exceptions to the hearsay rule under which this testimony is admissible. In Smith, 285 So.2d at 244 the Louisiana Supreme Court recognized both the “excited utterance” and the “present sense impression” exceptions to the hearsay rule. The courts have a tendency to discuss all of these exceptions as part of the res gestae exception, but they are distinct exceptions having their own bases for admissibility. State v. Keller, 431 So.2d 78 (La.App. 1st Cir.1983).

Mrs. Watts testified that immediately after the crime occurred, just after the LeSabre had sped away, a woman who had been walking down the sidewalk approached her and told her that the last three digits on the license plate were 488. The declarant must have been in close proximity when the crime occurred because according to the testimony, she reached Mrs. Watts on foot immediately after the crime was committed. The unidentified woman obviously observed the event otherwise there would have been no reason for her to have retained the license number, nor any reason for her to communicate it to Mrs. Watts. The statement certainly qualifies as an “excited utterance” and is thus admissible. Smith, 285 So.2d at 244-245.

Moreover, we note that the knowledge to the police of the last three digits of the license plate played no part in connecting defendant with the crime or in his subsequent apprehension. Since there was no showing of prejudice, the admission of the statement into evidence would be deemed harmless error even if we had determined that the statement was not an exception to the hearsay rule. La.C.Cr.P. art. 921; see State v. Jackson, 419 So.2d 425 (La.1981).

The assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Deputy Sheriff Alvin Dousay was not available to testify because he was in the hospital for minor surgery. On the basis of La.C.Cr.P. art. 295(B) the trial judge, over the objection of defense counsel, ruled that the jury be allowed to read Deputy Dousay’s testimony given during the defendant’s first trial for the same offense. Defense counsel argues that admission into evidence of the transcript is an abuse of La.C.Cr.P. 295(B), and violates defendant’s right of confrontation protected under U.S. CONST. Amend. VI, XIV, La. CONST. art. I, Sec. 16.

La.C.Cr.P. art. 295(B) allows the introduction of transcribed testimony given at a prior hearing, absent the witness who testified at the prior hearing even though it is hearsay testimony. It sets standards for admission of the testimony designed to obviate the constitutional problems arising from the right of a defendant to confront a witness. The article refers to the admissibility of the testimony of a witness who testified at “... the preliminary examination.” However, the testimony of a witness who testified at a prior trial has been held to fall within the purview of this article. State v. Egena, 369 So.2d 1295 (La.1979), State v. Ghoram, 328 So.2d 91 (La.1976).

In order for the testimony of a witness, other than the defendant, to be admitted at a subsequent proceeding the Court must find that the witness is dead, too ill to testify, cannot be found, or is otherwise unavailable for testimony. In addition the party offering the testimony must not have procured the absence of the witness whose testimony is offered. La.C.Cr.P. art. 295(B). A defendant’s constitutional right to confrontation is satisfied when there is a showing that the witness has been diligently sought without avail or that a good faith effort has been made by the prosecution to secure the witness’ presence at trial. State v. Sam, 283 So.2d 81 (La.1973).

Deputy Sheriff Frank Jones testified under oath that at the time of trial, Deputy Dousay was in the hospital undergoing surgery. There is no conflicting evidence as to the truth of Deputy Jones’ assertion. The return showing personal service on Deputy Dousay was admitted as evidence. A trial court does not abuse its discretion unless its findings of fact in rulings on the admissibility of evidence are clearly wrong. State v. Johnson, 458 So.2d 937 (La.App. 1st Cir.1984). Consequently, the trial judge was not clearly wrong in determining that Deputy Dousay was unavailable, for testimony at the time of trial because he was presently undergoing surgery. Surgery is a legitimate excuse for unavailability.

The State made a good faith effort to obtain the presence of Deputy Dousay. The State made personal service on him with a subpoena. When he later failed to appear to testify the State searched until he was found in a hospital undergoing surgery. There is every indication that the State expected Deputy Dousay to testify. The reason he could not was that he was unavailable, not because the State failed to find him or failed to make a good faith effort to obtain his presence.

We hold that all the safeguards were met, and that defendant’s right of confrontation was not breached. The trial Judge’s ruling was correct under La.C.Cr.P. art. 295. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges as error that the trial judge denied the motion for post verdict judgment of acquittal, thereby allowing defendant to be convicted contrary to law and evidence. La.C.Cr.P. art. 821. It is alleged that essential elements of the crime were not proved: defendant’s identity as the perpetrator of the crime; and defendant’s specific intent to permanently deprive the victim of her purse and its contents.

The evidence shows that the victim made a positive identification of the defendant at trial. She also made a photo identification of the defendant shortly after commission of the crime. The victim’s signature and the date of the identification appear under the photo. The jury obviously believed the victim’s testimony. The testimony of the victim is sufficient to establish the elements of an offense. State v. Johnson, 446 So.2d 1371 (La.App. 1st Cir.1984), writ denied, 449 So.2d 1347 (La.1984). The reliability of the victim’s testimony is a matter of weight of the evidence. Determination of the weight to be given evidence is a question of fact for the trier of fact, not subject to appellate review. Johnson, 446 So.2d at 1375.

Specific intent may be proved by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. State v. Boyer, 406 So.2d 143 (La.1981); State v. Williams, 383 So.2d 369 (La.1980). The defendant testified at trial that when arrested in Clinton, Louisiana, he was in possession of a stolen credit card bearing the name of Edgar Watts (husband of the victim). From these circumstances alone the jury could have inferred the specific intent of defendant to permanently deprive the victim of something of value. La.C.Cr.P. art. 821 establishes a standard by which to test the legal sufficiency of the evidence. The standard established is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983); State v. Walker, 447 So.2d 54 (La.App. 1st Cir.1984). After viewing the evidence in the light most favorable to the state, a rational juror could find that the defendant committed the crime and specifically intended to permanently deprive the victim of her purse and its contents. We find no error in the trial judge’s denial of the post verdict judgment of acquittal under La.C.Cr.P. art. 821.

ASSIGNMENT OF ERROR NO. 4

Defendant alleges as error that the sentence imposed by the trial judge, although within statutory limitations, is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979). He also alleges that the trial judge failed to comply with the sentencing guidelines in La.C.Cr.P. art. 894.1.

In sentencing defendant, the trial judge referred to the pre-sentence report regarding defendant’s extensive criminal background dating from 1969. The trial judge noted that defendant stood before the court as technically a three time felony offender, this was his fourth felony conviction. The trial judge noted, among other things, that there were also two pending bench warrants for defendant’s arrest on felony charges from DeRidder and Donaldsonville, Louisiana. The probation department, noting that defendant was ineligible for supervised probation, recommended that defendant receive the maximum sentence.

The trial judge reviewed other considerations delineated in La.C.Cr.P. art. 894.1. He noted that Mrs. Watts received a cut on her head; that she certainly did not provoke defendant; that he could find no grounds for defendant’s conduct; and that a lesser sentence would deprecate the seriousness of his offense. The record also shows that the trial judge considered mitigating circumstances such as defendant’s age, education, and drug addiction. The trial judge did not articulate every aggravating or mitigating circumstance of La.C.Cr.P. art. 894.1, but is not required to do so. The record must reflect that he adequately considered the statutory guidelines. State v. Grey, 408 So.2d 1239 (La.1982). We find the record reflects adequate consideration of the guidelines. Given the sentencing criteria of La.C.Cr.P. art. 894.1, a sentence will not be set aside in absence of manifest abuse of discretion. State v. Wardlow, 448 So.2d 257 (La.App. 1st Cir.1984). We find that there was adequate compliance with La.C.Cr.P. art. 894.1 and no abuse of discretion. The conviction and sentence are accordingly affirmed.

AFFIRMED.

      . La.R.S. 14:65.1 provides:
      A. Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.
      B. Whoever commits the crime of purse snatching shall be imprisoned, with or without hard labor, for not less than two years and for not more than twenty years.

      . La.R.S. 15:447 provides:
      Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.

      . La.C.Cr.P. art. 295 provides:
      A. The transcript of the testimony of a defendant who testified at the preliminary examination is admissible against him upon the trial of the case or, if relevant, in any subsequent judicial proceeding.
      B. The transcript of testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceeding in the case, on behalf of either party, if the court finds that the witness is dead, too ili to testify, cannot be found, or is otherwise unavailable for testimony, and that the absence of the witness was not procured by the party offering the testimony.
      C.The transcript of testimony given by a person at a preliminary examination may be used by any party in a subsequent judicial proceeding for the purpose of impeaching or contradicting the testimony of such person as a witness.

      . La.R.S. 14:10 provides:
      Criminal intent may be specific or general: (1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.


author: CARTER, Judge:

text:
    STATE of Louisiana In the Interest of A MINOR MALE CHILD.

    No. 84 CJ 0706.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Richard Brazan, Baton Rouge, for plaintiff-appellee State of La., Office of Human Development.
    Michael Thomas, Baton Rouge, for defendant-appellee (Minor Child).
    Thomas Wade, Baton Rouge, for defendant-appellant mother.
    Before COLE, CARTER and LANIER, JJ.

      . At the request of the State, this case has been recaptioned to preserve the confidentiality of this matter. The mother’s name is not set out herein for the same reason.

   CARTER, Judge:

This is an appeal from a trial court judgment in a juvenile proceeding which terminated the parental rights of the appellant-mother to her five-year-old son.

FACTS

The minor child was born on April 20, 1979. On March 5, 1982, he was placed in the custody of the Louisiana Department of Health & Human Resources (Department) following certain incidents endangering his safety. The first incident occurred when a fight ensued between the mother and one of her major children. The mother telephoned the Department requesting that the minor child be removed from her home because she could no longer protect him from her older son. The second incident took place during a field visit from the social worker. Upon entering appellant’s home, the social worker found the minor child and his mother in a house so filled with gas fumes that the mother could hardly be roused. As a result of these incidents, a hold order was issued, and the minor child was placed in foster care.

In August of 1982, the minor child was adjudged to be a “child in need of care” and ordered to remain in the custody of the Department. On November 28, 1983, the State petitioned for termination of the parental rights of the child’s mother. On April 9, 1984, after trial on the merits, the trial court rendered judgment terminating the mother’s parental rights pursuant to LSA-R.S. 13:1601. The judgment was signed on April 17, 1984.

The mother appeals the judgment of the trial court terminating her parental rights alleging that:

1) The trial court erred in permitting the State to introduce inadmissible hearsay evidence; and
2) The trial court erred in permitting the State to introduce evidence of prior instances of removal of other children from the mother’s custody.

Termination of Parental Authority

The State petitioned for the termination of the mother’s rights under the authority of LSA-R.S. 13:1601(D), which sets forth the elements necessary for termination as follows:

“(1) The child has been in the custody of a child welfare department or other person, pursuant to a judicial order, for a period of at least one year.
(2) The child was removed from the custody of the parents by judicial order due to the parent’s abuse or neglect of the child.
(3) The parent is unfit to retain parental control and there is no reasonable expectation of reformation on the part of the parent or parents.
(4) The child is an abused or neglected child, the Department of Health and Human Resources has made every reasonable effort under the circumstances to reunite the child with his parents, and the department recommends that it would not be in the best interest of the child to be reunited with his parents.”

These elements “must be proven by clear and convincing evidence.” LSA-R.S. 13:1603(A). Additionally, it must be proven “that the best interest of the child dictates termination of parental rights.” LSA-R.S. 13:1602(D). The trial court held that the requisite burden of proof was met. We agree.

As we address each element, we find that the Department has fully satisfied its burden of proof.

(1) The child has been in the custody of a child welfare department or other person, pursuant to a judicial order, for a period of at least one year.

The record clearly reflects that a judicial order was rendered on August 2, 1982, placing the three-year-old minor child in the custody of the Department. Custody has continuously remained with the Department for over two years.

(2) The child was removed from the custody of the parents by judicial order due to the parent’s abuse or neglect of the child.

Appellant contends that the testimony of Sue Steib, social work supervisor for the Department, regarding the two incidents of abuse is inadmissible as hearsay. Appellant argues that Ms. Steib’s first-hand knowledge of these events is limited and that her knowledge is derived from reports prepared by one of her subordinates. Appellant reasons that if the hearsay evidence regarding the instances of abuse and neglect were stricken from the record, the allegations of abuse and neglect are left unsupported by the record and an essential element of the State’s case remains unproven.

We note that a certified copy of the judgment in which the child was adjudged to be in need of care was introduced by the State and admitted into evidence without objection by the appellant. The judgment reveals that the mother stipulated that her child was in need of care. Although the judgment does not specifically itemize the incidents of abuse or neglect, the judgment clearly reflects a determination of abuse and neglect and an acquiescence in that determination by the mother.

(3) The parent is unfit to retain parental control and there is no reasonable expectation of reformation on the part of the parent or parents.

An unfit parent is one “who has abused the child by inflicting physical or mental injury which causes severe deterioration to the child.” LSA-R.S. 13:1600(6). The evidence reflects that the mother is unfit.

Following the initial incidents of abuse and neglect in 1982, the mother was evaluated by a clinical psychologist at the request of the Department.

The psychologist testified that in 1982, the mother could not handle the stress of having her child returned to her. He recommended treatment for her problems at a local mental health center, which the mother has continually refused to follow. In 1983 and 1984, the mother was re-evaluated by the psychologist. Although her condition remained the same in 1983, her condition had deteriorated in 1984. The psychologist found minimal brain injury, which was associated with a more pronounced schizophrenic disorder, and mild, functional retardation. He determined that the mother could not provide proper care for her child and that her prognosis for recovery was very poor because of her unwillingness to seek medical assistance.

The psychologist further testified that he had evaluated the minor child on three separate occasions and that the child had improved while in foster care. He specifically attributed the child’s improvement to the stability in his life and advised that the child requires stability and continuity in his life to enable him to overcome the lag in his emotional development.

Under these facts, the third element of proof was clearly met.

(4) The child is an abused or neglected child, the Department of Health and Human Resources has made every reasonable effort under the circumstances to reunite the child with his parents, and the department recommends that it would not be in the best interest of the child to be reunited with his parents.

There is no question that the child was abused and/or neglected, and we find that the Department had made every reasonable effort to effecutate a reunion.

The child’s custody was transferred to the Department when he was three years of age. By the time of trial, the minor was five. During this period in the Department’s custody, the child spent most of that time with foster parents. The Department entered into numerous visitation plan agreements with the mother, attempting to gradually return the child to her. Although various visitation schedules were made, many were cancelled because the mother did not wish to see her son. Further, she was often ambivalent about the return of her son. On several occasions she discussed with a social worker the possibility of voluntarily surrendering her son and, on one occasion, indicated she was going to kill the child.

The Department was acting in the best interests of the child in seeking to terminate parental rights for, once accomplished, the child will be available for adoption. LSA-R.S. 13:1605. The examining psychologist categorically believed that the child’s best interest would be served by severing his relationship with his mother in light of the fact that she has made no improvement and will not seek help. This view is consistent with the Department’s position.

Therefore, the trial judge’s termination of parental rights is fully supported by the record.

The trial judge awarded attorney fees to the ad hoc attorney representing the mother of the minor child pursuant to LSA-R.S. 13:1602. We find that the ad hoc attorney for the mother is entitled to an increase in attorney fees for the additional time and expenses incurred preparing and arguing this appeal. Thus, that portion of the judgment making an award to the ad hoc attorney of the mother is amended to increase the award to $1100.00.

For the above reasons, the judgment of the trial court is affirmed as amended. Costs are to be paid by appellant.

AMENDED AND AFFIRMED.

      . According to LSA-R.S. 13:1600(7), a "child in need of care" means a child:
      (a) Whose parent inflicts or allows the infliction of physical injury or sexual abuse upon the child which seriously endangers the physical, mental, or emotional health of the child.
      (b) Whose physical, mental, or emotional condition is threatened or impaired as a result of the refusal or neglect of his parent to supply the child with necessary food, clothing, shelter, or medical care, or as a result of the parent’s neglect or imposition of cruel punishment.
      (c) Who is without necessary food, clothing, shelter, or medical care because of abandonment by, or the disappearance of, his parent.
      (d)No child who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be a child in need of care for purposes of this Section.

      . .The minor child’s legal father voluntarily surrendered his rights under the provisions of LSA-R.S. 9:401-402. The petition for termination filed by the State alleges that the child’s biological father has also surrendered his rights to the minor child.

      . We will not address each of appellant’s assignments of error individually; however, the opinion adequately addresses the issues raised by appellant.

      . The petition for termination filed by the State also requested termination under LSA-R.S. 13:1601(8) & (F). However, the State need only prove the grounds under one subsection. Although the State has successfully established grounds for termination under numerous subsections, we have selected LSA-R.S. 13:1601(D) for illustration.

      . We note that although the judicial order was rendered in 1982, a formal judgment was not signed until February, 1984.