author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Mose ROBERTSON, Jr.
    No. 83-KA-0258.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Denied March 9, 1984.

      James L. Alcoek, Asst. Dist. Atty., Hou-ma, for plaintiff.
    Charles Gary Blaize, Indigent Defender’s Office,,Houma, for defendant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant, Mose Robertson, Jr., was indicted for first-degree murder. The indictment was amended before trial to second-degree murder in violation of LSA-R.S. 14:30.1. Defendant was convicted by jury and sentenced to life imprisonment without benefit of probation, parole or suspension. Defendant appeals his conviction, alleging four assignments of error. We affirm.

The week before Thanksgiving in 1981, Robertson was released from the Terre-bonne Parish jail. Rev. Tommie Lee Bates invited Robertson to move in with him at his home in Houma, Louisiana, which Robertson did shortly after Thanksgiving.

On the evening of November 28, Robertson and the Reverend became embroiled in a violent confrontation. In the ensuing fight, Robertson grabbed a large kitchen knife from the dining room table and stabbed the Reverend 29 times, killing him.

Robertson took the Reverend’s car keys from the kitchen table and left the house in the Reverend’s station wagon. Somewhere between the dining room and the garage where the car was parked, he dropped the knife. He drové to a parking lot behind Yots’ Steak House on Grand Caillou Road and parked the car. He walked to the local TG & Y convenience store where he purchased a camera and a set of new western wear — boots, jeans, a shirt, a vest and a hat. He returned to the car and changed into the clothes. He then walked across the street to the Seabreeze Restaurant where he bought one beer and had his picture taken with some of the patrons. He stayed there until about 10:00 p.m. when he called a taxi and left for Morgan City. He paid the cab fare of $55.00 in cash and checked into a local motel for the night.

On the next day, the 29th, he caught a bus to New Orleans, then to Tallulah, Louisiana, where the city police arrested him.

ASSIGNMENT OF ERROR NO. 1

As assignment of error No. 1, defendant contends that the trial court erred in admitting Sherry Kirkland as an expert in the field of serology. Specifically, defendant contends that because' Ms. Kirkland was unable to derive the word “serology,” she was not qualified to testify on bloodstain analysis.

The competency of an expert witness is a question of fact within the sound discretion of the trial judge and his ruling will not be disturbed unless clearly wrong. State v. Michel, 422 So.2d 1115 (La.1982); State v. Staton, 433 So.2d 222 (La.App. 1st Cir.1983).

Ms. Kirkland has a Bachelor of Science degree in biology with a minor in chemistry. She has been employed by the Jefferson Parish Sheriff’s Office as a forensic biologist for the past year and a half. She underwent a four-month training program at the New Orleans Crime Laboratory before joining the biology section of the crime lab in Jefferson. She recently attended a three-hour graduate course in biochemical blood-stain analysis at the F.B.I. Academy.

She performs serological tests on blood stains and body fluids as a part of her daily routine. On cross-examination, she testified on the difference between Type “A” blood (containing proteins called “antigens”) and Type “O” blood (containing no “antigens”) and described the procedures for determining the difference between human and animal blood. She has qualified as an expert in serology in the St. Charles Parish district court and in all eleven divisions of the Twenty-Fourth Judicial District of Jefferson.

Based on the foregoing qualifications, the trial court did not abuse its discretion in accepting Mrs. Kirkland as an expert in serology. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

As assignment of error No. 2, defendant contends that the trial court erred in allowing State witness Vickie Lee Scott, the cab driver who drove Robertson to Morgan City, to testify on allegedly irrelevant and inflammatory matters.

Ms. Scott testified at trial that Robertson paid his fare of $55.00 in cash. When the State asked if she recalled the denominations of bills that he paid her with, defense counsel objected. After the jury was removed, defendant argued that the elements of the crime of theft were irrelevant to a prosecution of second-degree murder under the first paragraph of LSA-R.S. 14:30.x, and that the testimony was inflammatory as referring to an element of first-degree murder.

The State responded, arguing chiefly that evidence of a robbery was relevant to show defendant’s motive for the murder. The State also argued that although its prosecution of the case was indeed based upon the first paragraph of Article 30.1, the State could nonetheless proceed to prove its case under the second paragraph, of which robbery constitutes one of the elements.

The trial court overruled defendant’s objection and allowed Ms. Scott to answer the question.

Relevant evidence is generally defined as that evidence intending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. LSA-R.S. 15:441. The relevancy of evidence must be determined by the purpose for which it is offered. LSA-R.S. 15:442. The trial court has wide discretion in determining the relevancy of evidence, and its determination will not be overturned absent a clear showing of abuse. State v. West, 419 So.2d 868 (La.1982); State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983).

Moreover, in State v. Brown, 398 So.2d 1381, 1385 (La.1981), the Louisiana Supreme Court said that “the probative value of the crime of car theft for the purpose of establishing motive outweighed the prejudicial effect” on the defendant before the jury in a prosecution for attempted first-degree murder of a deputy sheriff. The court defined motive as “the cause or reason that moves the will and induces action for a definite result.” Id. at 1384.

In Brown, the defendant had objected to the introduction of such testimony as calling for evidence of other crimes inadmissible under LSA-C.Cr.P. art. 770. The court held that proof of motive is admissible as an exception to art. 770.

The reasoning in Brown applies equally to the situation in the present case, although defendant has not alleged a violation of art. 770. Evidence that defendant, recently released from prison and destitute, was suddenly in possession of a substantial amount of money is relevant to show his motive for committing murder and outweighs any prejudicial effect it may have had. The trial court did not abuse its discretion in allowing the testimony into evidence. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

As assignment of error No. 3, defendant contends that the trial court erred in admitting into evidence the large kitchen knife, purported to be the murder weapon, allegedly because the State failed to establish sufficient connexity between the knife and the crime.

Before demonstrative evidence can be admitted into evidence it must be shown that, more probably than not, the evidence is connected to the case. That foundation can be laid by establishing a chain of custody of the evidence or by visual identification. Once that foundation is established, the weight to be given the evidence is a question for the jury. State v. Landry, 388 So.2d 699 (La.1980).

According to the testimony presented at trial, on November 29, Morris Scott, the Reverend’s roommate, found in the driveway of the victim’s house a large kitchen knife similar to three such knives owned by the Reverend and kept in the kitchen drawer of the house. He pointed out the knife to Dianne Bates, the victim’s daughter-in-law, who notified Detective Freddie Williams, one of the investigating officers at the scene of the crime. Detective Williams retrieved the knife from the driveway and delivered it to Detective Morris Duplantis, the arresting and chief investigating officer.

Detective Duplantis initialed in pencil a piece of tape and attached it to the handle of the knife for identification. He then sealed the knife in a plastic evidence bag and gave it to Detective Price with orders to deliver it to the crime lab for analysis. Sherry Kirkland received the knife from Detective Price on December 1, 1981, and performed a blood-stain analysis which revealed the presence of human blood on the knife. The amount of the blood found was insufficient for typing. When her analysis was completed, she sealed the knife in an evidence locker at the lab, where the knife remained until trial.

At trial, the penciled initials were, inexplicably, no longer on the tape. However, the knife presented at trial was positively identified by the witnesses as the one found in the yard, marked for identification, and delivered to the crime lab for analysis.

These facts amply demonstrate both a chain of custody and a visual identification of the knife establishing a more probable than not connection between the knife and the crime. The trial court did not abuse its discretion in admitting the knife into evidence. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

As assignment of error No. 4, defendant contends that the trial court erred in failing to give one of its previously prepared instructions to the jury.

Prior to submission of the case for argument, the trial court conferred with both counsel on instructions to the jury. At that time, an agreement was reached that the court would instruct the jury in a special written charge to disregard the second paragraph of LSA-R.S. 14:30.1. After closing argument, the trial court did not read the special written charge to the jury, but instead read the entire statute to the jury.

Defense counsel objected to this omission after the jurors retired for deliberation. The court explained on the record that because the State alleged in its closing argument the crime of robbery, an element of second-degree murder under the second paragraph, the instruction would no longer have been appropriate. The court further explained that since the defendant was charged by a short form indictment without detailing the facts or circumstances surrounding the offense, the instruction to disn regard the second paragraph would have constituted an impermissible comment on the evidence in violation of LSA-C.Crim.P. art. 806.

The trial court is required to charge the jury in a criminal prosecution on all law applicable to the case. Article 807, however, gives the State or the defendant the right to request special written charges. Under that article the trial court is required to give the special written charge only “if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.” If the special charge requires any explanation or qualification, the court in its discretion may refuse to give the charge. See State v. Smith, 414 So.2d 1237 (La.1982); State v. McZeal, 352 So.2d 592 (La.1977).

In the present case, the requested charge would have required some explanation or some further instruction by the trial court that the robbery evidence either was introduced for the limited purpose of establishing defendant’s motive or was to be disregarded altogether. Thus, it was within the trial court’s discretion to give the special charge. Since the general charge given by the trial court was a correct and pertinent statement of the law applicable to the crime of second-degree murder, the trial court did not err in refusing to give the special charge. This assignment lacks merit.

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

AFFIRMED.

      . LSA-R.S. 14:30.1 provides in pertinent part:
      Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in a perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

      . The special written charge reads as follows:
      It is the contention of the State that the defendant in this proceeding violated Paragraph 1 of the Statute in that is [sic] alleged that he killed a human being while having a specific intent to kill or to inflict great bodily harm. We are, therefore, not concerned with the second paragraph of Article 30.1 which deals with the killing of a human being when the offender is engaged in the perpetration of certain enumerated crimes.

      . LSA-C.Crim.P. art. 806 provides:
      The court shall not charge the jury concerning the facts of the case and shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been approved, not proved, or refuted.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Melvin MOORE.
    No. 83 KA 0260.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Ossie Brown, Dist. Atty. by Bob Hester, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Bonnie Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Melvin Moore, was charged by bill of information with aggravated burglary of a store office in violation of La.R.S. 14:60. Defendant pled not guilty to the charge, was tried by a twelve person jury and convicted. The accused was found to be a second multiple offender and sentenced to prison for thirty years at hard labor. Alleging five assignments of error, defendant appeals his conviction and sentence. However, defendant did not brief assignments of error Nos. 1, 3 and 5, and thus, they are considered abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.

FACTS

The incident at issue occurred at a T G & Y store on May 1, 1982. The T G & Y co-manager, Carl Criner, became suspicious of the defendant and his female companion after seeing them standing near the store’s main office door.

Mr. Criner lost sight of the man when a customer asked him for help. Shortly thereafter, Criner was asked by one of the cashiers at the front of the store to get her some change. Criner asked Deputy Trotter to accompany him back to the store office. Criner unlocked the first office door and noticed that several desk drawers were pulled open, and the inner office door was ajar. Criner and Deputy Trotter went into the inner office, got the change out of the change sack, pulled the door shut, and made sure it was locked.

Criner and Deputy Trotter took the change up to the front. Again Criner saw the man near the office. Criner then saw the man jump over an eight foot partition wall separating the outer and inner offices.

Criner alerted Deputy Trotter that somebody was in the office. The outer office door was locked. Criner unlocked the door. Criner told Deputy Trotter that the person was in the back office. Deputy Trotter instructed Criner to unlock the second door and stand back.

Deputy Trotter pointed his gun at the man inside and told him to turn around, and place his hands on the wall. The man struggled with Deputy Trotter in an attempt to take the gun. The gun went off, firing into the floor. Criner attempted to shut the outer office door, but the fleeing man shoved him out of the way.

Deputy Trotter ran out of the office and fired two shots at the man running up an aisle. The first shot hit a customer in the thigh. The second shot hit the defendant in the left shoulder. The man continued to run out the store, and escaped.

Shortly, thereafter, the police were dispatched to a residence to pick up a man who had been shot. He was treated at Earl K. Long Hospital. He was identified as the man found in the TG & Y office and later taken into custody.

ASSIGNMENTS OF ERROR NUMBERS 2 AND 4

The defendant alleges that the trial court made two errors — first, in refusing to overturn a guilty verdict because the State failed to prove every element of the crime of aggravated burglary, and second, in refusing to give a special jury instruction submitted by the defendant with regard to the necessity of the presence of a person at the time the illegal entry was made.

La.R.S. 14:60 reads, inter alia, as follows: “Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.”

In State v. Pierre, 320 So.2d 185 (La.1975), the Supreme Court determined that the definition of aggravated burglary fell to some extent within the historical and common law definition of burglary. Burglary, in common law, was designed for the protection of the person’s place of habitation. The Court then noted the significance that La.R.S. 14:62, defining simple burglary, makes no reference to an “inhabited” dwelling, structure, water craft or movable “where a person is present.”

The court concluded that the intent of the legislature in enacting Article 62 was to include in its’ definition lesser offenses where an unauthorized entry did not involve an “inhabited” enclosure or one “where a person is present.”

State v. Goods, 403 So.2d 1205 (La.1981), involved a conviction for the aggravated burglary of a truck. On appeal, the defendant contended that the trial court erred in not granting his motion for a directed verdict. The basis was that the State had failed to prove an essential element of the crime of aggravated burglary, i.e., that the unauthorized entering of the movable took place while a person was present.

The Supreme Court reviewed its decision in State v. Pierre, supra, and ruled that there could be no finding of an aggravated burglary “as there is no doubt that no one was present in the movable at the time the defendant burglarized it.”

In the recent case of State v. Tuckson, 414 So.2d 360 (La.1982), the Supreme Court held that the defendant’s unauthorized entry of an unoccupied vehicle, which was later entered by the owner, could not support a conviction of aggravated burglary.

The court stated in order to find an aggravated burglary of the vehicle it must be shown that the defendant made an unauthorized entry of the van “.. . corresponding in time to the ‘presence’ of the victim or some other person. The statutory language is clear and unambiguous and does not admit of the interpretation that an aggravated burglary of a vehicle is committed when an unoccupied vehicle is entered by the criminal at one moment and the owner or someone else comes along later.”

In the instant case the evidence does not support a verdict of aggravated burglary, however, there is an adequate basis for a verdict of simple burglary. La.R.S. 14:62. Under La.Code Crim.P. art. 821 E, the verdict may be modified to a judgment of a conviction on a lesser included offense of simple burglary. Simple burglary is a responsive verdict to aggravated burglary. La.Code Crim.P. art. 814.

Because of our decision herein, we preter-mit discussion of defendant’s assertion that the trial court was in error by refusing to give his requested special instruction.

Therefore, for reasons assigned, the conviction of aggravated burglary is set aside and this matter is remanded to the trial court to enter a judgment of simple burglary and to adjust the sentence accordingly.

REMANDED.


author: PONDER, Judge.

text:
    STATE of Louisiana v. Kenneth FLOWERS.
    No. 83 KA 0274.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Salvador J. Liberto, Jr., Asst. Dist. Atty., Covington, for appellee.
    John R. Simmons, Jr., Covington, for appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant, indicted by grand jury on a charge of second degree murder in violation of La.R.S. 14:30.1, was convicted by jury of manslaughter. He was sentenced to serve eighteen years in prison. Defendant appealed, alleging three assignments of error. We affirm.

The defendant and a friend parked by the car of the victim, Calvin Brown, at a convenience store. The defendant got out of his car, exchanged words with Brown, and punched Brown through the window of his car. Brown got out of his car and pulled a knife. The defendant, having also pulled a knife, stabbed Brown, who died that same night.

The defendant picked up Brown’s knife and left the scene of the crime. He got his wife to drive him back to the convenience store where he turned over both knives to the police. He admitted to the stabbing after being advised of his rights.

Defendant’s first assignment of error requested that the judgment be reversed if any error patent on the face of the record were found. We find no such error.

Defendant’s second and third assignments of error allege that the trial judge failed to comply with the provisions of La. C.Cr.P. art. 894.1 and that the sentence is excessive.

La.C.Cr.P. art. 894.1 requires the trial judge to state for the record the considerations taken into account by him and the factual basis therefor when imposing sentence. The trial judge need not set forth all the factors listed in the statute to which he accorded some weight. State v. Coleman, 432 So.2d 323 (La.App. 1st Cir. 1983). Without the trial court’s articulation, however, the sentence may appear to be arbitrary or excessive, unless there is evidence elsewhere in the record which clearly illumines the sentencing choice. State v. Washington, 414 So.2d 313 (La.1982).

In sentencing the defendant, the trial judge relied on 1) the fact that the killing was over a senseless situation which the defendant had the ability to avoid; 2) the defendant’s arrest record noting arrests for crimes affecting the person; and 3) his conclusion that the community needed to be protected from such a person.

While the trial judge’s statement did not cover each factor in art. 894.1, we feel that he considered all of them including defendant’s personal factors. The defendant’s potential danger to the community outweighed the mitigating factors.

The defendant’s prior criminal activity not resulting in convictions was properly considered. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983). Included in defendant’s presentence investigation report were several arrests and two convictions for assault and battery.

While the sentence imposed is close to the maximum twenty-one years, La.R.S. 14:31, we find that the factual basis for the sentence was set forth in sufficient detail in the trial evidence. From this and the trial judge’s articulated reasons, we conclude the sentence was not arbitrary or excessive. There was no manifest abuse of the trial judge’s discretion.

For these reasons, the appeal is affirmed with costs assessed to the defendant.

AFFIRMED.


text:
    STATE of Louisiana v. Ensley JOSEPH, III.
    No. 83 KA 0337.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Denied March 9, 1984.

      William G. Yates, Asst. Dist. Atty., Hou-ma, for State-appellee.
    Charles Gary Blaize, Houma, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant was convicted of three counts of armed robbery and sentenced to fifteen years on each count to run consecutively. La.R.S. 14:64. Defendant appealed assigning five errors.

We affirm.

Between the hours of 11:30 p.m. and midnight on November 9,1980, the cashier of a Convenient Food Mart in Houma was robbed. The robber, wearing a blue cap, placed two cans of oil on the counter, pulled out a small, silver gun, reached over the counter and began taking money out of the cash register. As he was ready to leave he said, “Tell them the candy man sent me.”

The following evening, between 11:30 p.m. and midnight, an employee and customer of a Shop Rite store in Houma were robbed. The robber, wearing a blue cap, put two cans of motor oil or transmission fluid on the counter, pulled out a small, silver gun, told the employee to give him the money from the register and reached over the counter for the money himself. The robber also told the customer to hand over his money. As the robber was leaving, he said, “Tell them the candy man sent me.”

Defendant was charged with one count on the first incident and two counts on the second.

ASSIGNMENT OF ERROR NUMBER 1

Defendant argues the trial court erred in failing to sustain his objection to the join-der of the first count with the second and third counts in one bill of information because the first robbery was totally unrelated.

The armed robberies charged were of the same or similar character. They were committed in a similar manner, under similar circumstances, close in proximity and time. The mode of trial was the same for each offense. The offenses were properly joined in the same information. La.C.Cr.P. art. 493.

Crimes exhibiting the same mode of operation may be tried simultaneously, even over defense objection, when evidence of such crimes is mutually admissible as “other crimes” evidence. State v. Dickinson, 370 So.2d 557 (La.1979).

Evidence is admissible as “other crimes” evidence when the offenses are sufficiently similar to distinguish them as the work of one person, when they are relevant to a material issue and when their probative value outweighs prejudicial effect. State v. Carter, 352 So.2d 607 (La.1977); State v. Prieur, 277 So.2d 126 (La.1973).

Additionally, the evidence of each crime was simple and distinct creating little danger that the jury could not distinguish the evidence and intelligently apply the law for each offense. The charges were for a violation of the same statute, and there should have been no confusion in the application of the law to the offenses. State v. Robinson, 404 So.2d 907 (La.1981).

Defendant’s assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant next alleges that the trial court erred in overruling his objection to the scope of the State’s questioning of one of its witnesses on redirect examination. The witness was asked on redirect what he heard the perpetrator say during the robbery. He had previously testified about what was said on direct examination, but was not questioned about it on cross examination.

While the redirect technically exceeded the scope of questioning permitted under La.R.S. 15:281, the testimony had already been elicited and defendant failed to demonstrate he suffered any prejudice due to the court’s ruling. La.C.Cr.P. art. 921.

Assignment of Error Number 2 lacks merit.

ASSIGNMENTS OF ERROR NUMBERS 3 AND 4

Defendant alleges in his third and fourth assignment of errors that the trial court erred in permitting the State to recall four of its witnesses after testifying and in permitting the introduction of certain items of evidence.

During the State’s case, and out of the presence of the jury, the State asked to be allowed to call back some of its witnesses to identify certain items of evidence. The prosecutor explained that prior to trial and on the morning of trial he had attempted to locate the evidence, but that it was lost somewhere in the Sheriff’s office. He stated that the evidence had just been found and asked that the court allow him to return the witnesses to the stand for the limited purpose of identifying a blue cap, a revolver and an envelope.

Defendant contends that it was confusing to the jury and prejudicial to permit the witnesses to testify a second time.

Prior to recalling the witnesses, the State called Sgt. Gary Alford, custodian in the crime laboratory, who testified that the evidence had not been located until the trial date after trial had begun. The witnesses’ testimony was limited to identifying the items of evidence. There was little likelihood of confusion on the part of the jury. Also, defendant was given the opportunity to conduct further cross-examination. We find no abuse of the trial court’s discretion. La.C.Cr.P. art. 765(5); State v. Kirsch, 363 So.2d 429 (La.1978).

Defendant argues the State failed to show that the cap, gun and envelope were the same items of evidence taken from the defendant and without a proper chain of custody were inadmissible.

To admit demonstrative evidence at trial, the object must be identified. Identification can be visual, that is, by testimony that the object sought to be introduced is related to the case. It can also be established by chain of custody. State v. Davis, 411 So.2d 434 (La.1982).

A sufficient foundation has been laid for the admission of demonstrative evidence if the evidence as a whole establishes that it is more probable than not that the object introduced is the same as the object originally seized. State v. Smith, 430 So.2d 31 (La.1983).

All four witnesses testified that the pistol appeared to be the same one used in the robbery. Three witnesses found the cap to be similar and one testified it looked identical. The customer who was robbed positively identified the envelope taken from him in the robbery and identified his handwriting on the envelope.

Sgt. Alford also testified that the bag containing the evidence was found locked in the desk of the other evidence custodian, Lt. Walling, who had logged the evidence into the laboratory. The logging card indicated the items were brought in on November 11, 1980.

We find that it was more probable than not that the evidence introduced was the same as that used in the robbery and submitted to the Crime Laboratory.

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER 5.

Defendant alleges the trial court erred in allowing a State witness to testify from a copy of a business record.

Tom Chamberlain, records custodian and manager of the fast food restaurant where defendant worked, testified for the State on rebuttal as to defendant’s pay.

Chamberlain was not working at the restaurant when defendant was employed. He testified that the former manager, responsible for the pay records when prepared, was somewhere in town but no longer employed with the company. He stated the payroll roster brought to court was the copy kept in the store and was a multiple original of the original kept in Lafayette.

To properly invoke the business records exception to the hearsay rule in a criminal case, it must be shown that the person who made the record is genuinely unavailable for testimony, that he had no strong motive to misrepresent, and that in all probability the evidence is trustworthy. State v. Phagans, 412 So.2d 580 (La.1982).

It was not established that the manager who prepared the records was genuinely unavailable. And Chamberlain, as custodian, did not say he had seen the original in Lafayette. State v. Juengain, 410 So.2d 1099 (La.1982).

The trial court erred in permitting the introduction of the evidence. We find, however, that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967). The records themselves did not link defendant to the robbery and the State’s proof was not dependent on them. State v. Phagans, supra.

This assignment lacks merit.

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

AFFIRMED.

      . La.R.S. 14:64:
      A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.

      . La.C.Cr.P. art. 493:
      Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

      . La.R.S. 15:281:
      The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity be not denied to recross on the new matter brought out on the redirect.

      .La.C.Cr.P. art. 921:
      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.

      . La.C.Cr.P. art. 765 provides:
      The normal order of trial shall be as follows:
      (1) The selection and swearing of the jury;
      (2) The reading of the indictment;
      (3) The reading of the defendant’s plea on arraignment;
      (4) The opening statements of the state and of the defendant;
      (5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;
      (6) The argument of the state, the defendant, and the state in rebuttal;
      (7) The court’s charge;
      (8) The announcement of the verdict or mistrial in jury cases, or of the judgment in nonjury cases; and
      (9) The discharge of the jury in jury cases.
      When there is more than one defendant, the court shall determine the order of trial as between them.
      A defendant may waive his opening statement.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Leslie BURNS.
    No. 83 KA 0344.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Leila S. Withers, Asst. Dist. Atty., 19th Judicial Dist. of Louisiana, for plaintiff-ap-pellee.
    Kathleen Stewart Richey, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Leslie Burns was charged by bill of information with committing armed robbery in violation of La.R.S. 14:64. A jury convicted him as charged, and he was subsequently sentenced to serve fifty years at hard labor, without benefit of probation, parole, or suspension of sentence. He has appealed, alleging three assignments of error:

1. The trial court erred by allowing the victims to identify defendant in court despite the fact that the court had previously granted a motion to suppress identification.
2. The court erred by sustaining the state’s objection to defense cross-examination of a state witness.
3. The court imposed an excessive sentence.

We affirm.

ASSIGNMENT OF ERROR NUMBER ONE:

In this assignment of error defendant argues that the court erred in allowing the in-court identification of defendant by the victims because there was not a sufficient independent source of identification of defendant other than the photographic identification which had been suppressed at a prior hearing.

After jury selection had been completed, defendant filed a motion to suppress the photo-lineup-identification. At the hearing on the motion to suppress, both victims testified and positively identified defendant as their assailant. The state presented testimony relating to the precautions undertaken to prevent the witnesses identifying anyone through suggestive means. However, the photographic lineup identification was suppressed because the police officers had not recorded the names of the individuals other than the defendant whose photographs were used in the lineup making it impossible to duplicate the lineup. At trial, defendant objected to the in-court identification by the victims claiming the original identification was tainted, and therefore any subsequent identification would also be tainted and inadmissible. The court overruled the objection, noting that the prior ruling was based on the fact that the officer who participated in the photographic lineup failed to keep information by which the lineup could be duplicated, precluding the court from making an independent observation. The court specifically noted, however, that the photographic lineup was not suppressed as being suggestive and that it had declined to rule on whether the lineup was suggestive.

A defendant attempting to suppress an identification must prove (1) that the identification was “suggestive” and (2) that there was a likelihood of misidentification in the identification procedure. State v. Chaney, 423 So.2d 1092 (La.1982). The defendant has the burden of proving the suggestiveness of out-of-court photos. La. C.Cr.P. art. 703(C), State v. Vaughn, 378 So.2d 905 (La.1979). Even if it is established that a pre-trial identification of an accused was the product of impermissible suggestion, the in-court identification is admissible if it has an independent basis. State v. Winn, 412 So.2d 1337 (La.1982).

Factors to be considered in determining the reliability and existence of an independent source include the following:

1) the opportunity of the witness to view the criminal at the moment of the crime;
2) the degree of attention of the witness;
3) the accuracy of the prior description of the criminal;
4) the level of certainty of the identification; and
5) the elapsed time between the crime and the confrontation.

Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Davis, 407 So.2d 702 (La.1981).

The court, after analyzing these factors, allowed the in-eourt identification, finding that the circumstances as a whole indicated that both victims had an opportunity to view the perpetrator extensively. The record reflects that the photographs were shown to the victims five days after the occurrence of the incident and that the attention of the victims was specifically attracted to the face of the perpetrator. The court further noted the accuracy of the prior description of the defendant and found it consistent with that of the accused and his photograph. Finally, the court noted that both victims were absolutely certain of their identification. In light of all of these considerations, the court found that an in-court identification would not have been tainted to the extent of being inadmissible. We find no error in this holding.

ASSIGNMENT OF ERROR NUMBER TWO:

Assignment of error number two was not briefed on appeal, and is therefore considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983).

ASSIGNMENT OF ERROR NUMBER THREE:

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

The maximum sentence that can be imposed for the crime of armed robbery is imprisonment at hard labor for not more than ninety-nine years, without the benefit of probation, parole, or suspension of sentence. La.R.S. 14:64. The court is required to impose a minimum sentence of five years at hard labor without the benefit of parole, probation or suspension of sentence.

Defendant argues that the court considered only defendant’s extensive criminal record in imposing the sentence of fifty years and did not consider any of the mitigating factors required to be considered under La.C.Cr.P. art. 894.1. Defendant also questioned the appropriateness of the court’s consideration of defendant’s arrest for murder, since those charges had been dropped.

The trial court has wide discretion in the imposition of sentences. State v. Fleming, 428 So.2d 947 (La.App. 1st Cir.1983). When the trial judge recites some of the La.C.Cr.P. art. 894.1 factors such as defendant’s lengthy criminal history or the risk that defendant would commit another crime, a factual basis for the sentence is present and it is not necessary for the trial judge to enumerate each factor under the article. State v. Mott, 409 So.2d 268 (La.1982). We find the court has sufficiently articulated its reasons for the imposition of the sentence.

The sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. The prior criminal activity which the court may consider in imposing sentence is not limited to prior convictions. State v. Washington, 414 So.2d 313 (La.1982). We find no error in the consideration of defendant’s prior criminal activities.

The sentence imposed herein, approximately one-half (½) of the maximum permissible, is not apparently severe as applied to this defendant. The pre-sentence report indicates two prior offenses of armed robbery and numerous arrests for aggravated assault and aggravated battery, as well as other charges for crimes against the person. The court noted that it was imposing the sentence because of the likelihood that defendant would commit another crime, possibly of a more serious nature. We find no abuse of discretion.

For reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.


author: CARTER, Judge: WATKINS, Judge

text:
    STATE of Louisiana v. Shannon LUTZE.
    No. 83 CA 0356.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Granted Feb. 27, 1984.

      Stephen E. Caillouet, Asst. Dist. Atty., Thibodaux, for State.
    John T. Bourgeois, Thibodaux, for Shannon Lutze.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal to set aside a trial court judgment of forfeiture of a surety bond.

The facts as set forth by the trial judge in his written reasons for judgment are as follows:

“On or about September 16th or 17th of 1981, the defendant, Shannon Lutze, was arrested on charges of two counts of obscenity, one count of ‘B-Drinking’, possession of marijuana and possession of quaaludes.
On September 19th, the defendant, as principal, and Abe Pereira, as surety, executed a personal surety bond in the sum of $30,000.00, to secure the defendant’s release pending disposition of these charges.
On October 22nd, the State filed a bill of information charging the defendant with the offense of ‘B-Drinking’ only.
On October 26th, the defendant personally appeared for arraignment before Division ‘B’ of this Court, entered a plea of not guilty, and was ordered to appear before Division ‘C’ at 10:00 A.M., on January 27, 1982, for a pre-trial conference.
On January 27th, the defendant failed to personally appear at the pre-trial conference, although she was represented by her attorney. Accordingly, on motion of the State, the Court ordered the bond of September 19, 1981, forfeited, and issued a bench warrant for her arrest, returnable on April 2,1982, at 10:00 A.M., before Division ‘C’. The surety bond judgment of forfeiture was signed on February 5, 1982.
On April 2nd, the bench warrant was returned unexecuted and the defendant again failed to appear. However, when her case was called on the docket the State entered a nolle pros and dismissed prosecution.
On July 16th, the defendant, through her attorney, filed the instant motions [Motion to Withdraw Bench Warrant and Motion to Cancel Surety Bond Judgment of Forfeiture] in the nature of a contradictory rule against the State, principally on the basis of the nolle pros entered by the State.
To date, the defendant has neither appeared nor has she surrendered herself to the jurisdiction of the Court.”

Judgment was then signed denying defendant’s motions to withdraw the bench warrant and to cancel the judgment of bond forfeiture. Thereafter defendant applied to the First Circuit Court of Appeal for writs. The court ordered the bench warrant recalled and vacated, but denied the application as to the judgment of bond forfeiture stating that the matter was ap-pealable as a civil proceeding. Defendant then perfected this appeal.

Defendant first argues that the trial court does not have the power to order a defendant to appear for a pre-trial conference where her presence is not required under law, and therefore, the judgment of bond forfeiture based on non-appearance should be vacated.

A court has the inherent power to issue all needful writs, orders, and other process in aid of the exercise of the jurisdiction of its court. Louisiana Constitution of 1974, Art. 5, Sec. 2; LSA-C.Cr.P. art. 17. Such power and authority is essential to the courts in order to facilitate the orderly administration of justice.

In the case sub judice, the trial court ordered a pre-trial conference pursuant to LSA-C.Cr.P. art. 729.4 and, by virtue of its inherent powers, ordered defendant to be present at the pre-trial conference. Such an order promoted the efficient day to day functioning of the court system and was well within the power of the court. Therefore, we find that the court had the authority to order defendant to be present at the pre-trial conference.

We note further that defendant has agreed pursuant to her bond obligation to appear at all stages of the proceedings and to hold herself amenable to the orders and process of the court.

Defendant next argues that even if it is determined that the court has the power to order her to appear at the pre-trial conference, the judgment of bond forfeiture should be set aside on grounds of mootness as the charges against her have been dismissed. We disagree.

The pertinent statutory provisions are:
(1) LSA-C.Cr.P. art. 343 provides for the cancellation of a bail bond:
“The court shall order the bail bond canceled when there is no further liability thereon.”
(2) LSA-R.S. 15:85(B)(3) provides for the cancellation of a judgment of forfeiture of a bail bond:
“Any judgment forfeiting an appearance bond rendered under this provision at any time within six months after mailing of notice shall be set aside, upon the surrender or the appearance and trial and conviction or acquittal of the defendant, or upon a continuance granted upon motion of the district attorney after such appearance.”

According to LSA-C.Cr.P. art. 343, a bail bond shall be canceled when there is no further liability thereon. However, where the defendant has breached the bond obligation and it has been forfeited, R.S. 15:85 is applicable. R.S. 15:85 provides that when a judgment of forfeiture has been rendered such forfeiture can be set aside only upon the surrender or appearance of the defendant within six months of the forfeiture.

The statute sets forth the procedure for cancellation of a forfeiture at a time when the charges against a defendant are pending. Because there is no specific exception for cancellation of a forfeiture when the charges against a defendant have been dismissed, we conclude that the requirements of R.S. 15:85 apply to both situations. Therefore, a defendant whose bond has been forfeited, regardless of the disposition of the initial charges, must comply with R.S. 15:85 in order to have the forfeiture set aside.

In the case sub judice, the defendant was arrested on or about September 16, 1981 and was thereafter granted bail. On October 26th, defendant was arraigned and at that time was ordered to appear in court on January 27th for a pre-trial conference. Defendant failed to appear in court as ordered and as a result bond was forfeited. On April 2nd, the charges against her were dismissed. To date, defendant has failed to present herself to the court.

The defendant’s argument that the dismissal of the charges by the district attorney renders the issue of the forfeiture moot is without merit. The defendant was ordered to appear in court at a time when there were viable charges pending against her; nevertheless, she refused to do so. The dismissal of the charges by the district attorney does not alter the fact that the defendant willfully and intentionally disobeyed an order of the court and, in so doing, violated an express condition of her bond.

The trial court ordered the bond forfeited because of the defendant’s intentional refusal to appear before the court at the appointed time. Thereafter, the trial court refused to set aside the bond forfeiture because of the defendant’s continuing refusal to appear in court. We find the ruling of the trial court to be correct as it is in accord with the statutory provisions.

For the foregoing reasons the judgment of the trial court is affirmed. Costs to be paid by defendant-appellant.

AFFIRMED.

WATSON, J., dissents and assigns reasons.

WATKINS, Judge

(dissenting).

Once the State through the District Attorney had entered a nolle prosequi and dismissed the charges against the defendant, there obviously was no longer any obligation on the part of the defendant to appear before the court for any purpose. It follows, therefore, that there was no further liability on the bail bond.

With respect to the failure of the defendant to appear at the pre-trial conference incident to this prosecution, the record is not clear that the defendant was ordered to appear personally at the conference. Her attorney was present. The bench warrant issued by the trial court upon her failure to appear was recalled and vacated by this court.

Assuming arguendo that the defendant had been ordered to appear personally at the pre-trial conference, I do not believe that the court had authority to so order.

LSA-C.Cr.P. art. 729.4 provides that the trial court by order or pursuant to the rules of court may order the appearance of the district attorney and the defense counsel at the pre-trial conference. The trial court is not given Codal authority to direct the defendant’s presence at the pre-trial conference.

However, the majority opinion takes the position that art. 5, Sec. 2 of the Louisiana Constitution of 1974 and also art. 17 of the Code of Criminal Procedure by giving the trial court power to issue all orders in the exercise of its jurisdiction gave the trial court inherent authority to direct that defendant be present at the pre-trial conference. I do not think that either the Constitution or the Codal provision means that the court can issue orders in contravention of or substantially beyond the procedural rules set forth by Code or statute. To so interpret the authority to grant necessary orders would be to render rules of procedure unnecessary, or to cause such rules to become at most loose guidelines ancillary to the supposed broad power of thé court to do as it will.

I respectfully dissent.

      . Defendant has cited three cases for the proposition that a nolle prosequi entered as to the charges against a defendant requires that the judgment of bond forfeiture be set aside. State v. Bugg, 6 Rob. 63 (1843); State v. Prendergast, 11 La. 68 (1837); State v. Dunbar, 10 La. 99 (1836). All of the cases cited date from the mid-1800’s and were decided under the bond laws then prevailing and are not dispositive of the issue in the present case.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Ricky O’Neal WRIGHT.
    No. 83 KA 0393.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.

      Leon A. Picou, Jr., Dist. Atty., St. Fran-cisville, for plaintiff.
    Charles Griffin, II and Stanley E. Bran-ton, St. Francisville, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant, Ricky O’Neal Wright, was indicted for second degree murder, in violation of LSA-R.S. 14:30.1 in connection with the death of Robert Bibbens, Jr. After a trial by jury, he was convicted as charged and was subsequently sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. He has appealed, alleging five assignments of error, as follows:

1. The trial court erred in denying a motion to suppress the statement made by defendant to the West Feli-ciana Parish Sheriff’s deputies;
2. The trial court erred in denying a motion to suppress items of defendant’s clothing which were obtained from his home without a search warrant;
3. The trial court erred in overruling defendant’s objection to the introduction of the seized clothing into evidence (based on an incomplete chain of custody);
4. The trial court erred in overruling defendant’s objection to the introduction of the clothing into evidence (based on incomplete discovery);
5. The trial court erred in denying defendant’s motion for a mistrial.

We affirm.

The incident from which these charges resulted occurred on January 31, 1982, at a bar called “The Golden Disco of the South” in West Feliciana Parish. Defendant and the victim, Robert Bibbens, Jr., exchanged words in the restroom of the bar after Bibbens claimed defendant had urinated on him. After the exchange, defendant walked outside the club, followed a short time later by the victim. According to defendant’s statement, he believed the victim was about to pull a weapon on him, so he hit the victim in the face, knocking him to the ground; he then began kicking the victim in the face and head. Defendant immediately left the area. Soon afterward the victim was pronounced dead at the scene by the assistant coroner, the final diagnosis being sixteen stab wounds to the head and face, crush injuries to the central face (including the left eye, bridge of the nose, and frontal bones), and a fracture to the base of the skull.

Defendant left the bar to return to his home in Woodville, Mississippi, where he changed his clothes. He returned to St. Francisville, Louisiana, and turned himself in to the Sheriff’s office. He was arrested for manslaughter, and later that day gave a statement to the police. The grand jury subsequently indicted defendant for second-degree murder.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant submits that the trial court erred in denying a motion to suppress the statement (confession) given to the West Feliciana Parish Sheriffs deputies. He alleges that this statement was taken in violation of his constitutional rights, specifically the Fifth Amendment to the United States Constitution and Article 1, Section 13 of the Louisiana Constitution.

More specifically, defendant contends that he was not fully advised of his Constitutional rights before his statement was given, because the law enforcement personnel did not read his Miranda rights to him and they did not ascertain whether he comprehended what rights he was waiving by giving the statement.

Approximately twelve hours after defendant turned himself in to the Sheriff’s office and was arrested, he was first questioned about the incidents of the night before. At that time, defendant made a full statement admitting that he had first hit the victim, knocking him to the ground, then “stomped” his head repeatedly. This confession was introduced at trial subject to defendant’s objection.

Initially, we note that defendant’s argument on appeal addresses the denial of a motion to suppress the confession on grounds which were not asserted in the motion to suppress filed in the trial court. The motion to suppress this confession was sought only on the grounds that he was intoxicated when the statement was made, and thus it was not given voluntarily. This motion was denied on November 2, 1982.

LSA-C.Cr.P. art. 703 provides in part as follows:

“F. A ruling prior to trial on the merits, upon a motion to suppress, is binding at the trial. Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.” (Emphasis added.)

The grounds asserted in defendant’s written motion to suppress filed prior to trial and the grounds asserted in his argument on appeal, although both concerned with voluntariness of the confession, are unrelated. We believe defendant forfeited his right to object to the introduction of the confession at trial through his failure to include in the pre-trial motion to suppress the grounds he now asserts. LSA-C.Cr.P. art. 703. Nevertheless, because of the important constitutional questions presented by the admission of an allegedly “involuntary” confession, we have considered defendant’s arguments, and find no error in the admission of the confession.

Defendant alleges that this statement was obtained from him without a determination of whether he comprehended what rights he was waiving by giving this statement.

Before the State may introduce a confession into evidence, it must prove beyond a reasonable doubt that the statement was free and voluntary. LSA-R.S. 15:451; State v. Neslo, 433 So.2d 73 (La.1983). When the defendant alleges actual police misconduct to obtain the confession, the State must rebut the allegations specifically. State v. Neslo, supra.

Defendant does not allege that he was unaware of the effect of his actions, but simply that no effort was made to determine if he did understand what he was doing. Deputy Cutrer testified that he verbally advised defendant of his rights. He also testified that, after having verbally explained his rights, he gave defendant the written waiver of rights form to read, after asking defendant to read a few paragraphs out loud to insure that defendant was able to read. Deputy Cutrer further testified that, after defendant had read the written waiver form, defendant said that he understood that document. Defendant signed the waiver of rights form, and it was admitted into evidence at the trial.

Defendant urges in his brief that the confession is inadmissible because Deputy Cutrer did not read the waiver of rights form to defendant. If the testimony otherwise indicates that defendant was informed of his rights, it is not necessary that his rights be read to him. State v. Yates, 357 So.2d 541 (La.1978). Defendant admits in brief that he read the waiver of rights form. The confession he signed specifies that Deputy Cutrer advised him of his rights. Deputy Cutrer testified that defendant read the form and indicated that he understood his rights. The trial court obviously believed Deputy Cutrer’s testimony that defendant understood his rights. The credibility choices of the trial court in ruling on the voluntariness of a confession will not be disturbed unless clearly erroneous. State v. Harper, 430 So.2d 627 (La.1983). The trial court’s determination of credibility on the question of whether defendant was advised of his Miranda rights is also given great weight and will not be disturbed unless not supported by the evidence. See State v. Petterway, 403 So.2d 1157 (La.1981). In light of the foregoing testimony, and in consideration of the fact that defendant did not allege any specific factor relating to involuntariness or coercion other than those discussed above, we find no error in the ruling by the trial court.

ASSIGNMENT OF ERROR NUMBER TWO:

As assignment of error number two, defendant alleges that the trial court erred in denying a motion to suppress items of defendant’s clothing which were obtained from his home without a search warrant. Specifically defendant argues that the seizure was illegal and in violation of his constitutional rights governing search and seizure under the Fourth Amendment of the United States Constitution and Article I, Section Five of the Louisiana Constitution.

In a statement made to Deputy Cutrer at the time of his arrest, defendant admitted that, after the fight, he returned to the house he shared with Dorothy Peterson in Woodville, Mississippi, and changed clothes before returning to St. Francisville to turn himself in. Shortly thereafter, Deputy Tyrone Sterling of the West Feliciana Parish Sheriff’s office, accompanied by Deputy John Dorsay of the Woodville, Mississippi Police Department, went to Ms. Peterson’s home. Ms. Peterson was not at home and the officers spoke to her mother who lives next door. She offered to let them into Ms. Peterson’s home but they chose to wait for Ms. Peterson to arrive. After the police officers told Ms. Peterson that they had come to pick up defendant’s clothing, she asked them to come inside the house and told them she would look for the clothes. She found the clothing and gave it to the officers.

Defendant argues that the State did not meet the burden of proof in showing that the search and seizure made without a warrant fell within the guidelines allowing such a search.

Consent is an established exception to the warrant requirement. State v. Loyd, 425 So.2d 710 (La.1982); State v. Winn, 412 So.2d 1337 (La.1982). The voluntariness of consent to search is a question of fact to be determined by the trial court judge under the facts and circumstances surrounding each case. State v. Smith, 433 So.2d 688 (La.1983).

At the hearing on the motion to suppress, Deputy Dorsay testified that Ms. Peterson voluntarily cooperated with the officers. Deputy Sterling also testified that after he explained the situation to her, Ms. Peterson voluntarily consented to give up the clothes. Ms. Peterson testified that she was acquainted with both officers and that they were very nice to her. Although she testified that “I feel like they came to my house and asked me for something I was supposed to give it to them,” her testimony as a whole does not indicate that she felt coerced in any way. On the morning of the “seizure”, Ms. Peterson signed a statement in which she stated that she had not been threatened or promised any rewards or anything to make the statement and that she voluntarily gave the items to the officers.

The factual determinations of the trial judge on the issue of a consent to search are entitled to great weight on appellate review. State v. Smith, supra.

We find the trial judge properly analyzed the totality of the circumstances and correctly ruled the clothes were obtained after a valid consent. The assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER THREE:

As assignment of error number three, defendant contends that the trial court erred in overruling defendant’s objection to the introduction of clothing into evidence without laying the proper foundation for the evidence. Defendant cites several alleged discrepancies or possibilities for alteration of the clothes between the time they were seized and the time of their introduction into evidence.

This argument has no merit. The showing of a continuous chain of custody is not essential to the introduction of physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object introduced is the same as the object originally seized by the officer. State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983), writ denied 433 So.2d 711 (La.1983); State v. Tauzier, 397 So.2d 494 (La.1981). Ms. Peterson identified the items introduced at the trial as those she handed to the officers the morning after the incident. We find no error in the trial court’s ruling.

ASSIGNMENT OF ERROR NUMBER FOUR:

As assignment of error number four, defendant alleges that the trial court erred in overruling defendant’s objection to the introduction of the clothing because the state has not fully complied with discovery. Defendant’s argument is concerned with testimony at trial which showed that the police had taken into evidence two different sets of clothing belonging to defendant and performed laboratory tests on each of them.

The first set of clothing consisted of the items taken from Ms. Peterson the morning after the fight. The clothing was splattered with a considerable amount of blood, and laboratory tests were run on the items to determine the chemical analysis of the splatters in order to prove they were human blood and to establish the blood-group type. This test showed the blood was the same type as that of the victim. The second set of clothing consisted of the clothes defendant was wearing at the time of his arrest. These items also had blood spots on them, and more tests were run on them. This further testing established that the blood-group type of defendant and the victim were the same. Defendant argues that the possession of the second set of clothing and the laboratory report should have been disclosed as exculpatory evidence. The State argues that the fact that the blood-group types were the same is not exculpatory in nature.

The purpose of the discovery provisions is to enable the defendant to properly assess the strength of the state’s case against him in order to prepare his defense. See State v. Ray, 423 So.2d 1116 (La.1982). If a defendant is lulled into a misapprehension of the strength of the State’s case by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Ray, supra.

We do not see how the fact that the defendant and the victim had the same blood-group typing could be exculpatory under the facts presented herein. The evidence against defendant was overwhelming.

Even if the evidence could be considered exculpatory, not all cases involving late disclosure of exculpatory evidence result in reversible error. State v. Smith, 430 So.2d 31 (La.1983). The appellate court, on assignment of error, will review the record for a determination of whether any prejudice which may have resulted from the noncompliance caused the trier of fact to reach the wrong conclusion. State v. Ray, supra. We find that, even if the evidence might have been exculpatory, no prejudice was sustained by defendant.

ASSIGNMENT OF ERROR NUMBER FIVE:

As assignment of error number five, defendant argues that the trial court erred in denying defendant’s motion for a mistrial requested because of an outburst of a spectator. At the close of the trial, when photographs were being shown to the jury, an unidentified spectator was overcome and began crying, creating a scene. She was immediately escorted from the courtroom and did not return. Nevertheless, defendant argues that her conduct so prejudiced defendant that a mistrial should have been granted, relying on LSA-C.Cr.P. arts. 771 and 775. The State argued against the granting of a mistrial, disclaiming responsibility for the outburst.

Article 771 is concerned with prejudicial remarks made by persons other than the court, district attorney or court officials, and provides that, if the remark is not within the mandatory provisions of art. 770, the court may, in its discretion, grant a mistrial rather than admonish the jury to disregard the prejudicial remark. Article 775 provides for a mistrial if prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial or when authorized under arts. 770 of 771.

Mistrial is a drastic remedy. It has been consistently held that when the conduct does not fall within the mandatory mistrial provisions of art. 770, the judge has the sound discretion to determine whether the activity or comment is so prejudicial to the defendant that he could not receive a fair trial. State v. Narcisse, 426 So.2d 118 (La.1983). In State v. Domangue, 350 So.2d 599 (La.1977), the Supreme Court found that a mistrial was not necessary when a rape victim’s spouse began crying and was removed from the courtroom during closing arguments. The spectator herein was not identified and was promptly removed. The court admonished the jury to disregard her conduct. We find no abuse of discretion in the denial of the requested mistrial.

For the foregoing reasons the conviction is affirmed.

AFFIRMED.

      . Defendant also indicates that the statement may be faulty because Deputy Cutrer indicated that the statement might be paraphrased to some extent. There is no requirement that a written statement has to be a verbatim record of defendant’s oral version. State v. Lefevre, 419 So.2d 862 (La.1982).

      . Common-law husband.


text:
    STATE of Louisiana v. Mitchell R. TAYLOR.
    No. 83 KA 0399.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Ossie Brown, Dist. Atty., Baton Rouge by Glen R. Petersen, Asst. Dist. Atty., for plaintiff-appellee.
    Georgia Wilemon, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal of the judgment of the trial court that denied defendant’s motion to withdraw his guilty plea.

Defendant, Mitchell Ray Taylor, was charged by bill of information with having committed the crime of theft of property valued greater than $100.00 but less than $500.00 in violation of La.R.S. 14:67. This charge was amended in open court to receiving stolen things of a value greater than $100.00 but less than $500.00 in violation of La.R.S. 14:69. Defendant pled guilty to the charge of receiving stolen things. Prior to sentencing, defendant filed a motion to withdraw his guilty plea which was denied. Defendant was then sentenced to one (1) year imprisonment without hard labor. He now appeals his conviction and sentence, alleging the trial court erred when it overruled the motion to withdraw his guilty plea.

Defendant argues that at the time the guilty plea was entered the trial court, the prosecutor, defendant, and his attorney were under the false impression that defendant had no prior felony convictions; therefore the trial court and defendant acted under a mistake of fact sufficient to render defendant’s plea involuntarily made and constitutionally deficient.

La.C.Cr.P. art. 559 provides as follows:

The court may permit a plea of guilty to be withdrawn at any time before sentence.
The court shall not accept a plea of guilty of a felony within forty-eight hours of the defendant’s arrest. When such a plea has been accepted within the forty-eight hour period, the court, upon a motion filed by the defendant within thirty days after the plea was entered, shall set aside the plea and any sentence imposed thereon.
When a plea of guilty has been withdrawn or set aside, the plea and the facts surrounding its entry shall not be admissible in evidence against the defendant at a trial of a case.

The Supreme Court has consistently held that discretion to permit a guilty plea to be withdrawn is vested in the trial judge. That discretion, however, cannot be exercised arbitrarily and abuse of discretion can be corrected on appeal. State v. Johnson, 406 So.2d 569 (La.1981).

In support of the motion to withdraw the guilty plea, defense counsel contended that, although she had been provided with defendant’s “rap sheet” prior to defendant’s entering a guilty plea, she did not know of the prior conviction. Defense counsel also argued that defendant was unaware of and simply did not remember that he had a prior felony conviction. She claims that had she been aware of defendant’s prior felony conviction, she would not have advised defendant to plead guilty to the instant charge.

It is obvious from the record before us that the prosecutor furnished defense counsel with information in his possession as to defendant’s prior record. It is also obvious that the trial court meticulously and laboriously instructed and advised defendant of the rights he was waiving by his guilty plea. By his thorough questioning of defendant, the trial judge satisfied the Boykin rule in every respect, including assuring himself and those present at defendant’s Boykinization that defendant thoroughly understood those rights being waived and, further, that defendant waived those rights voluntarily and freely. Moreover, when asked if he understood that he would now be classified as a felony offender, defendant answered in the affirmative. The trial court ascertained that no plea bargain had been entered into and informed defendant of the maximum sentence he could receive as a result of the instant guilty plea.

Defendant relies heavily on the holding in State v. Galliano, 396 So.2d 1288 (La.1981), where the Supreme Court upheld the withdrawal of a voluntary and intelligent guilty plea because the trial judge, the prosecutor, the defense counsel and defendant erroneously acted on a mistake of law. If there was a mistake in the instant case, it was a mistake of fact rather than a mistake in law. State v. Lewis, 366 So.2d 1355 (La.1978). When defendant was asked by the trial court during his Boykin examination if he had ever been convicted of anything or pled guilty before, defendant replied “No, sir”. Even if defendant was genuinely mistaken in his belief that his prior conviction was less than a felony or had indeed forgotten that conviction entirely, the evidence in the record shows that defendant, at the time the guilty plea was entered, made a knowing and intelligent waiver of rights; and such a mistake of fact is not sufficient to render defendant’s guilty plea constitutionally infirm. We find no abuse of discretion on the part of the trial judge in denying defendant’s motion to withdraw guilty plea.

There is no merit to this assignment of error, therefore we affirm the judgment of the trial court.

AFFIRMED.

      . We have no way of knowing whether the conviction was on the “rap sheet”. The “rap sheet” was not introduced into evidence and is not part of this record. We note the trial court asked about prior convictions during his “Boy-kin” examination and all parties denied knowledge of any. However, on the motion to withdraw the plea the assistant district attorney stated that defendant had been furnished a “rap sheet”, which was not denied by defendant’s counsel. No one has said nor furnished evidence that the conviction was omitted from the “rap sheet”.

      . Defendant was sentenced to three years’ supervised probation on April 12, 1972, for simple burglary and misdemeanor theft convictions. He also had two revocation hearings.


author: CARTER, Judge:

text:
    STATE of Louisiana v. Melvin C. STOKES
    No. 83 KA 0456.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.

      Zach Butterworth, St. Francisville, for plaintiff-appellee.
    Clayton M. Perkins, Jr., St. Francisville, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

Defendant, Melvin Charles Stokes, Jr., was charged by a grand jury indictment with aggravated rape in violation of La.R.S. 14:42(2). Defendant was tried by a twelve-person jury, which unanimously found him guilty as charged. He was sentenced to life at hard labor without benefit of probation, parole or suspension of sentence. The defendant appeals his conviction and sentence specifying one assignment of error, viz., the trial court’s denial of his motion for a new trial in which he alleged that there was insufficient evidence to support the guilty verdict.

FACTS

Around midnight between May 14th and May 15th, 1979, the victim, a seventy-nine year old retired school teacher, who resides in the county approximately six miles outside of Clinton, Louisiana, was beaten and raped by an unidentified black man. She was awakened from her sleep by a noise, which sounded like the screen of her bedroom window being torn from its hinges. A black man entered her bedroom through this window. When she attempted to scare off the intruder by attempting to strike him with a chair, he attacked her. Hitting her in the face with his fist several times, the assailant busted the victim’s lip. The assailant then went through the victim’s purse, taking $10.00 and her Mastercharge credit card. When she turned on a flashlight to try to see what was happening, the man took the flashlight from her and hit her on the head with it, causing a laceration of the hairline. By that time, the victim was bleeding severely from the hairline gash and the cut lip. The intruder then raped her. After the rape, the assailant nearly strangled the victim, clinching his fingers tightly around her throat.

As the intruder was leaving, he pulled the telephone wires from the wall and told her not to report the incident to the police or he would come back to “finish her off.” The victim, not knowing whether the rapist was still in the area, was afraid to turn on any lights and sat in darkness until the light of early dawn. She then went to a neighbor’s house and called the Sheriff’s office.

The victim could not identify the man who raped her. She only knew that he was a black man. There had been only one light on outside the house, and no lights were ever turned on inside the house during the offense against her. The scene of the crime remained in darkness except for the flashlight, which had been taken from her before she could direct its beam on the intruder. The result is that the victim never saw her attacker except in complete darkness.

When the East Feliciana Sheriff’s office commenced their investigation of the offense, they discovered that the defendant, a resident of Jefferson Parish, was in the area visiting friends. When the law enforcement officers went to the residence where the defendant had been staying, they recovered the stolen Mastercharge credit card in the nearby woods.

Following an extensive man hunt, the defendant was apprehended and read his rights. At first defendant admitted that one of his friends had dropped him off in the vicinity of the victim’s home and that he intended to break into her home to steal whatever he could. He stated, however, that when he was examining the back door of the house, he heard profanity and noises inside the house and that he immediately left the area. Stokes later confessed to having committed the crime and set forth in considerable detail the circumstances thereof. The statement was handwritten by one of the officers and signed on each page by defendant.

Also, defendant’s palm print was found on the inside surface of the screen of the back door of the victim’s house.

ASSIGNMENT OF ERROR NO. 1

In defendant’s sole assignment of error, he urges that the trial court erred in denying his motion for a new trial. Defendant asserts that the motion should have been granted because the state failed to show evidence of every essential element of the crime of aggravated rape.

In reviewing a denial of a motion for new trial on the basis of sufficiency of the evidence, we look to the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court is required to consider the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found that the defendant’s guilt was proved beyond a reasonable doubt. State v. Washington, 421 So.2d 887 (La.1982).

Defendant argues that the only real link between himself and the rape is his confession, which he contends was not voluntary. He alleges that the officers threatened him and lied to him. Specifically, he alleges that the officers told him he could not see an attorney for seven days and that, if he did not give them a statement to their satisfaction, they would kill him and make it look like he had tried to escape.

Although defendant made these allegations at trial, we can find no evidence in the record that a motion to suppress the statement was urged or that there was an objection at trial to the introduction of the statement into evidence on the basis of its volun-tariness.

Undoubtedly, the jury considered all of these factors in reaching its verdict. Apparently, the jury considered defendant’s allegation of coercion in determining what weight to give the confession and found the officers' testimony more believable, choosing to rely on the confession and other evidence. When there is conflicting testimony as to a factual matter such as this, the question of the credibility of the witnesses is within the sound discretion of the trier of fact and its determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Klar, 400 So.2d 610 (La.1981).

Additionally, we do not agree that the only link between defendant and the rape is defendant’s own confession. Defendant’s palm print on the inside surface of the screen door of the victim’s house is incriminating. Although defendant admitted that he was in the vicinity of the house and that he had his hands on the screen door and window of the victim’s home, he denied that he ever reached the inside of the screen of the back door. This palm print on the inside surface of the screen door is therefore extremely significant in linking defendant to the rape.

We conclude that, when the evidence is considered in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Therefore, in affirming the trial court’s ruling on the motion for a new trial, we find that this assignment of error lacks merit.

For the above reasons, the conviction is affirmed.

AFFIRMED.

      . The grand jury indictment appearing in the record charges the defendant with having committed aggravated rape upon the victim on May 15, 1979. Although the record is somewhat deficient, it appears that defendant originally entered a guilty plea pursuant to a plea bargain agreement in 1979. Various writs and motions for change of venue were subsequently filed in East Baton Rouge, East Feliciana and West Feliciana parishes. Additionally, it appears that the defendant was originally indicted for aggravated rape, aggravated burglary and simple robbery. However, the instant case pertains only to the trial and conviction for aggravated rape in West Feliciana Parish.


author: MARVIN, Judge. SEXTON, Judge, PER CURIAM. SEXTON, J.,

text:
    ASSOCIATES FINANCIAL CORPORATION, Plaintiff-Appellee, v. Charles D. CARRICK, et al., Defendants-Appellants.
    No. 15863-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Rehearing Denied Dec. 22, 1983.
    Napper, Waltman, Madden & Rogers by Thomas W. Rogers, Ruston, for defendants-appellants.
    Robert A. Dragon, Jr., Lafayette, for plaintiff-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

The Carricks suspensively appeal from a judgment dismissing their demands to enjoin executory process on the grounds that the evidence submitted to support executo-ry process was not “actually authentic.” CCP Art. 2753. We affirm.

The chattel mortgage and note on which executory process was sought show that they were signed by the Carricks before a notary and two witnesses by private act duly acknowledged by one of the witnesses. Facially, this evidence supports executory process. CCP Art. 2635. The notary and the two witnesses, along with the person who signed on behalf of the seller-mortgagee of the truck purchased by the Carricks, testified that the Carricks signed in their presence and as to where, when and how the mortgage and note were signed. The Carricks testified that one or more of the witnesses were not present when they sighed the note and mortgage and that executory process, therefore, should not lie. The note, payable to BEARER, and the mortgage, were sold by the seller-mortgagee, Mid-South Kenworth, Inc., to the plaintiff-finance company, Associates, who obtained the order for executory process.

The trial court correctly found Associates to be a holder in due course and not susceptible to the contention that the note and mortgage were not “actually authentic.” LRS 10:3-305. The note and mortgage are authentic on their face and we find that the Carricks have not met the strong burden imposed on them of showing that the note and mortgage were not executed as they show on their face and as the notary, two witnesses, and the mortgagee’s representative testified. See and compare Associates Discount Corporation v. Bankston, 246 So.2d 335 (La.App. 1st Cir.1971), writ refused.

The Carricks urge that we should reverse the trial court judgment and remand with directions that the trial court [rejconsider the credibility issue of who was present when the note and mortgage were executed, by admitting opinion evidence, and the results of polygraph tests given to the Carricks, by an expert polygrapher examiner. This evidence was not admitted and is contained in this record as an offer of proof. CCP Art. 1636. We do not interpret State v. Catanese, 368 So.2d 975 (La.1979) as appellants do and, in any event, we do not find that the trial court abused the discretion which appellants contend the trial court has under Catanese to admit and consider polygraph evidence.

For the detailed and excellent reasons given by the trial court, which we adopt and summarize, and at appellants’ cost, we AFFIRM the judgment.

SEXTON, J., dissents and assigns written reasons.

SEXTON, Judge,

dissenting.

I respectfully dissent.

The trial court found that plaintiff, Associates, was a holder in due course of the promissory note, which was secured by the chattel mortgage, and that plaintiff’s status therefore “cut off” the defense of improper use of executory process. It is of course true that a holder in due course may cut off a maker’s substantive defenses to the payment of a note. See LSA — R.S. 10:3-305. However, the idea that a plaintiff seeking to enjoin the use of executory process by a holder in due course may not “go behind” the face of the instrument in an effort to prove that the instrument was not in fact sufficiently executed for use in an executo-ry process proceeding is in error.

The insufficiency of executory process evidence is not a substantive defense. It is instead a procedural bar which disqualifies the holder in due course from utilizing a certain summary procedure which the law makes available only in certain, limited circumstances. The evidence requirement is not a substantive defense in the strictest sense, but is instead a procedural prerequisite to a specific form of summary proceedings. Thus, where the insufficiency of the evidence is successfully urged, it does not defeat a substantive cause of action; it merely mandates the inapplicability of a specific procedural mode which is only available to creditors who have strictly complied with the law. The notion that the legal prerequisites to the use of executory process are not substantive defenses is manifest from the fact that where executory process is unavailable to a creditor, he may enforce his mortgage by ordinary proceedings. Thus, these legal requisites do not operate to defeat the enforcement of a given obligation, but merely govern the availability of a particular procedural means of enforcing such an obligation. See American B. & T. Co. in Monroe v. Carson Homes, Inc., 316 So.2d 732 (La.1975).

Furthermore, parole evidence has consistently been held admissible for the purpose of establishing that an instrument was not properly executed for the purpose of enjoining executory process. Carson Homes, supra. See also Ford Motor Credit Company v. Williams, 225 So.2d 717 (La.App. 1st Cir.1969), where, though not a specific issue, executory process by a holder in due course was enjoined as a result of parole evidence that the documents were statutorily insufficient to support executory process.

I am not certain that Associates Discount Corporation v. Bankston, 246 So.2d 335 (La.App. 1st Cir.1971), writ refused, noted by the majority, is pertinent. As a suit for a deficiency judgment, it is a subsequent attack on the authenticity of the evidence submitted for executory process. If it does in fact hold that a holder in due course seeking executory process may not suffer an attack on the authenticity of the evidence then I believe it is in error.

As a result of its holding that Associates status as a holder in due course “cut off” defenses, the trial court did not consider whether the mortgage at issue was properly executed. The trial testimony of the parties was in direct conflict on the issue. However, the plaintiffs-in-rule apparently passed a polygraph test which indicated that they were telling the truth when they stated that the witness, Mr. Towers, was not present when they signed the mortgage. This polygraph evidence found its way into the record only as a proffer.

Of course, the party attacking an execu-tory process on the basis of the insufficiency of the evidence has the burden of proof. Considering that the testimony concerning the execution of the mortgage is in direct conflict, it seems clear that the question of the admissibility of the polygraph evidence assumes major importance. Whether polygraph evidence is admissible in a civil case appears to be res nova, although recent jurisprudence seems to strongly imply that it should be considered.

In State v. Catanese, 368 So.2d 975 (La.1979), the leading polygraph case in our jurisprudence, our Supreme Court was unwilling to allow the use of polygraph evidence in the trial itself of a criminal cause even before a judge alone. It appears that the rationale for exclusion of the evidence in those circumstances was a fear that a mantle of invincibility or conclusiveness would be assigned to the polygraph evidence, and that it therefore would not be judged critically. Furthermore, concern over licensing and regulation of potential polygraph witnesses, as well as a lack of judicial experience with this type evidence in the state, were strong bases for the exclusion.

However, in spite of concluding that the evidence was inadmissible in a criminal trial itself, the court stated:

“[T]he reasons for our decision do not prevent its introduction in post trial 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. This avenue of admissibility, therefore, should be open, within the discretion of the trial judge, whenever the evidence is reliable and will aid in a decision.” Catanese, supra, at pp. 982-988. [Emphasis ours]

It should be noted that then Chief Justice Summers and Justice Marcus did not agree with the dicta which encouraged the use of such evidence in post-trial proceedings. However, then Justice Tate was willing to go further than the majority. In his partial concurrence and partial dissent, he stated:

“Furthermore, once we lay aside the unreliability rationale, there seems to be absolutely no sensible reason to exclude the results of polygraph tests conducted under reliable circumstances, with the stipulation of both the state and the defendant that the results of the test can be admitted in evidence on the trial on the merits.” Catanese, supra, Tate, J., dissenting at p. 984. [Emphasis ours]

Also of interest is the Fourth Circuit’s opinion in Manale v. Department of Police, 376 So.2d 607 (La.App. 4th Cir.1979). In Manale, the City of New Orleans was appealing a civil service commission ruling reinstating a discharged police officer and urging the admissibility of a polygraph examination adverse to the officer. The Court upheld the civil service commission’s failure to consider the polygraph examination based on the court’s determination that the strict guidelines of Catanese had not been shown to have been followed in the administration of a polygraph test at issue. The implication of the opinion, then, is that had the guidelines been followed, the court might well have considered the evidence at issue, seemingly being influenced, as I, by the strong dicta of Catanese urging consideration of polygraph evidence at least in criminal post-conviction matters.

I am therefore unable to theoretically distinguish between the use of a proper polygraph examination to support a witness’ testimony in a proceeding such as here presented and its use for the same purpose in post-conviction proceedings. I believe that, at least under these limited circumstances, the results of a competent polygraph examination conducted in accordance with the standards of Catanese should be received in evidence.

I would remand the cause to the trial court for its resolution of the factual issue of whether the mortgage in question was sufficiently executed so as to support exec-utory process. In so doing, I would ask the trial court to thus determine the credibility of the witnesses here for each side, taking the polygraph evidence into consideration. In so remanding, I would remind the trial court to recall the admonition of Catanese that trial courts are to be as critical of polygraph evidence as any other evidence. It should not necessarily be accepted as conclusive on its face and should be compared with all of the evidence in a case.

Considering the freshness of this issue and the likelihood that all parties assumed the polygraph evidence would not be admissible on the trial of the cause, I would be reluctant to charge appellants with the failure to provide appellee with a copy of the test administered to their witnesses prior to the trial. Likewise, I would be unwilling to charge appellee with the failure to determine the existence of appellants’ polygraph evidence by pre-trial discovery and to obtain independent examination of the test at issue, or to obtain polygraph examinations of their own witnesses, if they wished to do so.

In remanding for an evaluation of the factual issue of the sufficiency of the mortgage at issue in light of the polygraph evidence, I would instruct the trial court that this evaluation should contain a reasonable opportunity for appellee to have a competent polygraph expert examine the tests and testify on the issue. Moreover, appellee should be given an opportunity to present any polygraph examinations administered on the issue to its own witnesses who have testified previously, if the examinations qualify under the standards of Cat-anese. If appellee elects to produce such evidence, then appellants should be given an opportunity to have their experts examine the tests given those witnesses and to testify on that issue.

In taking this position I am mindful of the freshness of the issue and the potential which such a decision has for the expansion of civil trials. However, as the trial judge in Catanese, I became convinced that when the standards of Catanese are followed, that the polygraph is accurate at least 85% to 90% of the time, with the accuracy increasing depending on the skill of the operator. That level of accuracy is substantially greater than many of the medical tests which we currently routinely receive in evidence.

Therefore, while the trials which did occur might in some cases be turned into a battle of polygraph experts, I likewise believe that we would have an enormous reduction in factual disputes.

Succinctly stated truth is our work and I believe it would be best served by the acceptance in evidence of competent polygraph examinations.

Before PRICE, HALL, MARVIN, FRED W. JONES, Jr., and SEXTON, JJ.

PER CURIAM.

ON REHEARING APPLICATION

Defendants’ application for rehearing, in part, adopts the rationale of the dissent and asserts that our original opinion was in error in stating that the trial court correctly held that Associates was a holder in due course and not susceptible to the contention that the note and mortgage were not “actually authentic.”

That statement was dicta and that issue should not have been addressed because our holding was that defendants had not met the strong burden of showing that the note and mortgage, which were authentic on their face, were not actually authentic. As the dissent recognizes, some defenses, which are not substantive, may be asserted against a holder in due course. Compare LSA-R.S. 10:3-301 through 3-307 and cases cited in original opinion and the dissent.

With the above recognition of dicta in the original opinion, we deny defendants’ application for rehearing.

SEXTON, J.,

dissents from the refusal to grant a rehearing for reasons previously assigned.


author: MARVIN, Judge.

text:
    Margaret C. SHERWOOD, Applicant, v. Robert E. SHERWOOD, Respondent.
    No. 16,106-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 8, 1983.
    Alfred R. Beresko, Bossier City, for applicant.
    C.D. Rafoth, Youngstown, for respondent.
    Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
   WRIT GRANTED AND MADE PEREMPTORY

MARVIN, Judge.

This applicant was cited by the 26th Judicial District Court of Bossier Parish, Louisiana, to show cause why she should not be held in contempt for her failure to appear and produce her two minor children in the Mahoning County Court of Common Pleas of Ohio on June 21,1983, in obedience to an order of that Ohio court.

In a hearing in the Bossier Parish court on September 15,1983, applicant was found in contempt and was sentenced to serve 10 days in jail. That sentence was suspended on the condition that she obey further orders of the Ohio court and that if the Louisiana court was informed by the Ohio court that she again failed to appear, she would be required to serve the 10 days. That finding and sentence provoked this writ application. We ordered a stay of execution and further proceedings and ordered the record filed with this court for our examination.

At the outset, we note the complete absence in this record of an order by the Louisiana court directing the applicant to appear in the Ohio court. The only order requiring such an appearance apparently was directed to the applicant by the Ohio court.

Under some circumstances a Louisiana court may order a mother and her children to appear in a court of another state. See LRS 13:1719(0), 1718, Uniform Child Custody Act. Compare other sanctions employed in Lambert v. Adams, 347 So.2d 883 (La.App. 3d Cir.1977). The power to render a judicial order is not equivalent to an order and the mere existence of the power may not serve as a basis to cite a person for contempt. See CCP 224(2); City of Monroe v. Evans, 385 So.2d 912 (La.App. 2d Cir.1980). It is also questionable whether a court of another state is a “party to the action” in Louisiana which is authorized by CCP Art. 225 to move for a rule to show cause why another should not be held in contempt. Contempt power is strictly construed. CCP 227. Kent v. Stewart, 413 So.2d 583 (La.App. 1st Cir.1982). Our contempt laws speak only of the court or the judge whose order or whose dignity is violated as having the power to cite and punish for contempt. See CCP 221 et seq.

Because this record does not show that the applicant violated any order of the Louisiana court, the ruling of the Louisiana court that found applicant in contempt and sentenced her is reversed and set aside. We do not reach the alternative issue raised by applicant.

The writ is granted and made peremptory. The ruling of the trial court and applicant’s sentence are set aside and applicant is ordered discharged from the sentence.