author: LEMMON, Justice. CALOGERO, J., BLANCHE, Justice

text:
    STATE of Louisiana v. Lester DUPLESSIS.
    No. 82-KA-2053.
    Supreme Court of Louisiana.
    Oct. 15. 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Thomas Chester, E. Sue Bernie, Asst. Dist. Attys., for plaintiff-appellee.
    John W. Reed, Glass & Reed, New Orleans, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of two counts of armed robbery and concurrent sentences of 98 and 99 years imprisonment at hard labor. We reverse the conviction and order a new trial because the combined effect of the prosecutor’s obstructionist tactics and the trial judge’s grudging attitude on voir dire and during closing argument created the appearance that the trial judge had abandoned his role as neutral arbiter. When the conduct of the prosecutor and trial judge creates such an impression and thereby undermines the required complete neutrality on the part of the trial judge which is an essential element of a fair trial, a new trial is the only means of affording the defendant a fair opportunity to have the jury decide his guilt or innocence.

I.

This case involves the July, 1979 armed robbery of a clothing store by two men who pretended to be customers. The men used pistols to rob the owner, the manager, three other employees and one customer.

Within hours of the robbery, five of the victims identified one of the perpetrators in a photographic display. However, this robber (Wilbert Kelly) was killed in September in the course of an unrelated crime before he could be arrested for this offense.

In October, 1979, confidential information led to the investigation of defendant as the other perpetrator. Three of the victims provided the identification which resulted in defendant’s arrest and prosecution. At trial, the prosecutor’s case rested solely on the identification by three of the six victims. Defendant exercised his right not to testify, and the defense strategy was to attack weaknesses in the identification evidence and to rest on the presumption of innocence. Through cross-examination of prosecution witnesses, defense counsel developed and emphasized discrepancies between the perpetrator’s height estimated by the victims and defendant’s actual height, some confusion over hair style, the inability of the other victims to identify defendant, and alleged suggestiveness in the pretrial identification procedures. The jury found defendant guilty on two counts by 10 to 2 and 11 to 1 verdicts.

On appeal, defense counsel presents a two-pronged attack on the fairness of the proceedings and the resulting effect on the jury’s resolution of the identification evidence. The attack involves (1) the restriction of voir dire examination and (2) the conduct of the prosecutor and the rulings of the court during closing argument.

II.

During voir dire, defense counsel sought to elicit responses from prospective jurors on their experiences with mistaken identification, on their attitudes concerning defendant’s inability to provide an alibi, on defendant’s exercise of his right not to testify, and on the concept of reasonable doubt. The prosecutor continuously complained about defense counsel’s attempts to explore the experiences, expectations and attitudes of the jurors. On many occasions, the trial judge maintained the objections and restricted counsel to stating the law and asking whether the jurors could follow that law.

An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. La. Const. Art. I, § 17 (1974). The accused’s right to intelligently exercise cause and peremptory challenges may not be curtailed by the exclusion of non-repetitious voir dire questions which reasonably explore the juror’s potential prejudices, predispositions or misunderstandings relevant to the central issues of the particular case. State v. Monroe, 329 So.2d 193 (La.1976). On the other hand, a trial judge in a criminal case has the discretion to limit voir dire examination, as long as the limitation is not so restrictive as to deprive defense counsel of a reasonable opportunity to probe to determine a basis for challenges for cause and for the intelligent exercise of peremptory challenges. State v. Williams, 457 So.2d 610 (La.1984) decided this day. Therefore, when the defendant asserts that he has been deprived of his constitutional right to a full and complete voir dire examination, the reviewing court must examine the entire voir dire in order to determine that issue.

Although a review of the entire record of voir dire examination in this case presents a very close question, we decline to reverse the conviction solely because the limitations were so restrictive as to deprive the defendant of a reasonable opportunity to probe for challenges of cause and to exercise intelligently his peremptory challenges. In general, defense counsel through persistence was eventually permitted to inquire into the areas in which he had a right to seek information (except possibly the questioning as to the juror’s attitude toward an accused’s inability to provide an alibi, which was an area of inquiry almost completely excluded by the judge). Nevertheless, the prosecutor constantly interrupted counsel’s questioning by objecting to clearly proper questions, and the trial judge displayed a grudging attitude toward the asking of those proper questions, resulting in the appearance before the jury that defense counsel was wasting time on frivolous technical defenses. The tenor of the exchanges colored the entire proceedings and undermined the judicial atmosphere necessary to insure the proper conduct of the trial.

III.

The closing argument by the prosecutor drew four objections. The first one (the least prejudicial impropriety) occurred when the prosecutor told the jury that most convictions were based on only one identification witness, an argument clearly outside the record in this case. When defense counsel objected and requested an admonition, the trial judge neither sustained the clearly correct objection nor gave the clearly called-for admonition, but only stated that he could not comment on the evidence.

Immediately thereafter, the prosecutor commented that a bus full of witnesses would not be enough for defense counsel because he was a “very skillful lawyer”. When defense counsel properly objected to the personal argument about defense counsel (clearly exceeding the statutory limitation confining argument to the evidence or lack of evidence or reasonable inferences drawn therefrom) and asked for an admonition to the prosecutor to discontinue such tactics, the judge again neither sustained the objection nor gave the admonition, but again made the totally irrelevant statement that he could not comment on the evidence. To compound the error, the trial judge requested that defense counsel not interrupt the argument again.

The most egregious instance of improper prosecutorial argument occurred during rebuttal argument when the prosecutor told the jurors that defense counsel had them removed at one point in the trial because he did not want them to hear the witness’ answer. Although such an argument was clearly improper, the trial judge again declined to sustain the objection and merely told the jury that he could not comment on the facts.

The prosecutor’s first comment on evidence outside the record might be excused as innocuous, but the prosecutor's comment on evidence which was excluded from the record is flagrant and inexcusable. Such deliberate misconduct makes a mockery of the rules of evidence and defeats the purpose for excluding unreliable evidence in the first place. Such comments may also lead the jury to believe that defense counsel was using technical objections to conceal his client’s guilt.

Finally, the prosecutor concluded his argument with a blatant appeal to prejudice by predicting the dire consequences in case of acquittal. The trial judge, instead of sustaining the objection and admonishing the jury to disregard such comments, told the jury that the function of closing arguments was to aid them in reaching a verdict. Even more damagingly, he chastised defense counsel in front of the jury for interrupting closing argument.

When such blatantly defiant tactics by the prosecutor are permitted, the result is the frustration of a criminal justice system which is designed to insure that a person is sent to prison only after being convicted on the basis of a jury’s fair (and not prejudi-cially influenced) evaluation of reliable evidence. In the present case, such tactics were not only 'permitted, but were actually approved when the trial judge twice reprimanded the defense attorney for making proper and meritorious objections.

This court seldom reverses convictions on the basis of prosecutorial argument (because jurors are generally told repeatedly that they must decide the case on the evidence and that arguments of counsel do not constitute evidence). In the present case, however, the effect on the jury’s evaluation of evidence caused by the errors during closing argument, when cumulated with the effect of the errors during voir dire, simply cannot be said to be harmless. Under any concept of fundamental fairness, the judicial system cannot allow to stand a guilty verdict reached by a jury exposed to such prejudice as to preclude a fair determination of guilt or innocence based on the acceptance or rejection of the identification evidence.

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

CALOGERO, J.,

will assign additional concurring reasons.

BLANCHE, J., dissents and assigns reasons.

WATSON and MARCUS, JJ., dissent.

BLANCHE, Justice

(dissenting).

The majority relies on the combined effect of the prosecutor’s obstructionist tactics and the trial judge’s grudging attitude on voir dire and during closing argument to find that the trial judge had created the appearance (that he had) abandoned his role as a neutral arbiter. I am unable to join in reversing the conviction on these grounds, being of the opinion that the record does not support such a finding and that the defendant did receive a fair trial, albeit the prosecutor’s conduct was unprofessional and discourteous.

The case was solely one of identification, the evidence of which I find to be of such force that notwithstanding the complained of conduct of either the judge or prosecutor that the jury verdict (10-2) could not have been influenced thereby.

I respectfully dissent.

      . All six victims described the first robber (Kelly) accurately as to height and weight, the composite description being within one inch and three pounds of his actual measurements. The victims unanimously described the second robber as taller, by two or three inches. Defendant is actually two inches shorter than Kelly.

      . The crime occurred over three months before defendant’s arrest. Therefore, the questioning as to a juror’s attitude toward an accused’s inability to provide an alibi was critical to the defense theory of the case.

      . Although the ultimate decision on challenges for cause generally turns on whether the prospective juror can follow the law given by the court, defense counsel must be permitted to question jurors about their attitudes toward such laws as reasonable doubt so that counsel may exercise his peremptory challenges intelligently. When a trial judge limits defense counsel to a statement of the law and a closed-end question on the juror’s ability to follow the law, he flirts with reversible error on constitutional grounds.

      . The conservation of court time, of course, does not alone justify undue restriction of voir dire examination. See State v. Jackson, 358 So.2d 1263 (La.1978) and State v. Dixon, 365 So.2d 1310 (La.1978). The entire voir dire ex-animation for this trial of a serious offense encompassed 36 prospective jurors and 130 pages of transcript, but a considerable percentage was taken up by prosecutorial objections. (For example, 15 pages of transcript were required before a former police detective was excluded for cause. Additionally, the defense voir dire of the first 12 prospective jurors, covering 30 pages of the transcript, provoked 25 objections by the state and four by the court and consumed approximately half of the 30 pages.)
      More significant than the numbers, of course, is the fact that many of the objections were no more than unfounded attempts to halt from the outset any inquiry into extremely relevant matters. For example, the prosecutor objected to defense counsel’s first question whether any of the jurors had ever experienced a case of mistaken identity, which was the sole defense in this case. Later, the prosecutor objected to a question about the jurors’ attitude toward an accused’s inability to provide an alibi, on the basis that the defense in this case was mistaken identity and not alibi. Then when defense counsel turned to questions about the jurors' attitude on an accused’s exercise of his right to testify, the following occurred:
      "BY [DEFENSE COUNSEL]:
      "Can you understand then why the law simply says the defendant doesn’t have to say anything, ‘We’ll leave it up to the State.’ Now, getting back to Mr. Breashears, how would you feel in a case such as this if the defendant did not testify?
      "BY THE COURT:
      "There’s only [one] way they can feel about it. They can’t hold it against him.
      "BY [DEFENSE COUNSEL]:
      "Your Honor,—
      "BY THE COURT:
      " — Will you follow that law if I tell you that's the law?
      "BY THE PROSPECTIVE JUROR:
      "Yes, I will.
      "BY THE COURT:
      "There you are.
      "BY [DEFENSE COUNSEL]:
      "Your Honor, in the case of State v. Hayes, 364 So.2d 923 [1978], the Supreme Court specifically held that the defendant should be allowed to inquire of jurors, not simply what the law is, but to inquire of them how would they feel about following that aspect of the law. Now,—
      "BY THE COURT:
      " — If they say they’re not going to follow it, [then] they disqualify.
      "BY [DEFENSE COUNSEL]:
      "Your Honor,—
      "BY THE COURT:
      " — If they say they’re going to follow it, well,—
      "BY [THE PROSECUTOR]:
      "Your Honor, I think the proper question in that particular decision is whether or not the jurors could in fact apply the law, and not how they feel about the law. The juror [may] not feel proper about a particular law, but the question here and before this entire panel today is whether or not they have the ability to apply the law.
      "BY [DEFENSE COUNSEL]:
      "If Your Honor please, at 364 So.2d 924, the question by Mr. Usprich, 'However, do any of you feel that you would want to hear his side of the story?’ There was an objection, the Supreme Court reversed the Court,—
      "BY THE COURT:
      " — You can ask that question. But, you didn’t ask that question.
      “BY [DEFENSE COUNSEL]:
      “And, then the language continues, ‘Such attitudes — ’
      "BY THE COURT:
      " — I don’t care what the language says. That’s what the whole case said. That question. Ask that question only.
      "BY [DEFENSE COUNSEL]:
      "Your Honor, if I may—
      "BY [THE PROSECUTOR]:
      " — Your Honor, I’m going to object to Mr. Reed reading long excerpts from law books.
      "BY [DEFENSE COUNSEL]:
      “Then, if Your Honor,—
      “BY THE COURT:
      " — I have already ruled, Mr. Reed. You may ask that question.
      "BY [DEFENSE COUNSEL]:
      "Do I understand the Court—
      "BY THE COURT:
      " — You understand me rightly. Ask the question as it is in that case.
      "BY [DEFENSE COUNSEL]:
      “Do I understand the Court to be ruling that’s the only question I can ask—
      "BY THE COURT:
      " — With respect to that question, sir, yes.”

      . The situation was aggravated by the judge’s personal attacks on counsel. The following is an example of intemperate comments which could undermine the effectiveness of counsel and of the defense which counsel was attempting to present on behalf of his client:
      "BY [DEFENSE COUNSEL]:
      "If at the end of this case, Mrs. Anderson, the — you have a reasonable doubt, in other words, you heard the identification testimony, and you’ve heard the State’s evidence, and you’ve heard two people say that Mr. Duples-sis committed the crime, but if things don’t stick together, and you have a reasonable doubt, will you return a verdict of not guilty?
      "A. Certainly.
      "Q. And, will you do that even though the whole thing (inaudible) unsettled in your mind, you don’t know for sure who did it, or didn’t—
      "BY [THE PROSECUTOR]:
      " — I’m going to object to this, Your Honor.
      "BY [DEFENSE COUNSEL]:
      " — but if you have a reasonable doubt—
      "BY [THE PROSECUTOR]:
      " — I’m going to object, Your Honor.
      "BY THE COURT:
      "Just a moment, Mr. Reed. Start that question over again, sir.
      "BY [DEFENSE COUNSEL]:
      "The question, Your Honor, is if she has some uncertainty—
      "BY THE COURT:
      " — I can’t hear you, sir.
      "BY [DEFENSE COUNSEL]:
      "The question is if she has some uncertainty about the case, if she has a reasonable doubt, will she find the defendant not guilty.
      "BY THE COURT:
      "That’s not entirely correct.

        “BY [THE PROSECUTOR]:
      "That question is not objectionable to the State, Your Honor. I believe that’s a proper question.
      "BY [DEFENSE COUNSEL]:
      "That's the question I wanted to ask her.
      "BY [THE PROSECUTOR]:
      "I believe that's proper.
      "BY [DEFENSE COUNSEL]:
      "Q. Would you then find the defendant not guilty?
      "A. (Inaudible).
      "Q. In other words, what I mean, what I'm trying to say, perhaps not very well, is—
      "BY THE COURT:
      " — You can say that again.
      "BY [DEFENSE COUNSEL]:
      "Well, Your Honor—
      "BY THE COURT:
      " — You’ve got me confused on it.
      "BY [DEFENSE COUNSEL]:
      "I’m doing my best, Judge.
      "BY THE COURT:
      "All right. Start over again. You might make it this time.”

      .The argument, objection and ruling were as follows:
      "BY [THE PROSECUTOR]:
      "Now, it’s rare that you have this many identifications in an armed robbery. It's a rare thing. It’s usually one on one.
      "BY [DEFENSE COUNSEL]:
      "Objection, Your Honor. This goes beyond the record whether this is rare or not rare. And, I would ask the Court to admonish the Jury that. That’s not evidence on the facts in this case.
      "BY THE COURT:
      "I can only repeat, I cannot comment on the evidence. You rely on your memory of what you heard from this witness stand.
      "Proceed.
      "BY [THE PROSECUTOR]:
      "Thank you, Your Honor.”

      . The argument, objection and ruling were as follows:
      "[THE PROSECUTOR]:
      "As I was saying, even if I had in fact brought in a bus load of NOPSI people who were riding in a bus and passed an armed robbery and saw it transpire on that date. And, let’s say that the Most Rev. Archbishop Hannan was on the bus, that wouldn’t be enough for Mr. Reed. Because Mr. Reed is a very skillful lawyer.
      "BY [DEFENSE COUNSEL]:
      “Objection, Your Honor, to personalize in this matter in terms of the relative skills of lawyers. I don’t think it has any place in the proceedings. I ask Your Honor to admonish the district attorney not to make those references.
      "BY THE COURT:
      "I can only say, Ladies and Gentlemen, what I’ve said before. I cannot comment on the evidence. It is up to you to—
      "BY [DEFENSE COUNSEL]:
      " — Note my objection.
      "BY THE COURT:
      " — rely on your memory on what you heard.”
      "BY [DEFENSE COUNSEL]:
      "I note my objection, Your Honor, because—
      "BY THE COURT:
      " — Very well, sir.
      "BY [DEFENSE COUNSEL]:
      " — this is a question of what's heard.
      "BY THE COURT:
      "Now, let’s don’t interrupt again it at all possible, please.
      "BY [THE PROSECUTOR]:
      "Thank you, Your Honor.”

      . During the defense closing argument, the prosecutor interrupted not twice, but five times, but did not draw an instruction not to interrupt.

      . The argument, objection and ruling were as follows:
      "BY [THE PROSECUTOR]:
      “I said, 'Detective, is there anybody present in the courtroom who is a known associate of Wilbert Kelly?’ And, Mr. Reed objected. And, the Jury was taken out. He didn't want you to hear that answer. And, you know why he didn’t want you to hear that answer. And, you know why he didn’t talk about it in his argument. And, that’s because when Detective Steinkamp answered, 'Yes, there is someone in the courtroom who’s a known associate of Wilbert Kelly.’ And, I said, ‘Officer, who’s that?' ‘This man, the defendant before the bar.’ Now why didn’t Mr. Reed want you to know that this is a known associate of Mr. Kelly? Why?

      "BY [DEFENSE COUNSEL]:
      "Your Honor, I would object to this argument. The district attorney well knows that there were legal grounds for the objections made, and it’s inappropriate to argue on the basis of objections made as the district attorney has advised. Objections are probably made for sound reasons concerning the admissibility and competency of evidence.
      “BY THE COURT:
      "Ladies and Gentlemen of the Jury, I can only tell you what I’ve told you before. You are the trier of facts, and not I. I cannot comment on the facts at all. If you didn’t hear it from the witness stand, pay no attention to it. "Proceed.
      BY [THE PROSECUTOR]:
      “Thank you, Your Honor. And, that’s just my point. Why? Why doesn’t he want you to know that? Because it puts the hat on his client. That’s Wilbert Kelly’s partner. That’s his friend.” (Emphasis supplied.)

      . The argument, objection and ruling were as follows:
      "BY [THE PROSECUTOR]:
      "When the day comes, Ladies and Gentlemen, when what Mr. Reed is trying to tell you, comes about, that is, when the day comes, people like us, people like those people right there, hard working people, when the day comes, when they can’t believe what they’ve seen with their own God given eyes, that’s the day, fire me, close down this court—
      "BY [DEFENSE COUNSEL]:
      " — Your Honor, I object—
      "BY [THE PROSECUTOR]:
      " — and you lay off—
      BY [DEFENSE COUNSEL]:
      “ — every (inaudible)
      BY [THE PROSECUTOR]:
      “(Inaudible due to much shouting) — armed robbery.
      "BY [DEFENSE COUNSEL]:
      "I make an objection. That is an appeal to the community—
      "BY THE COURT:
      " — Just a moment.
      BY [DEFENSE COUNSEL]:
      "prejudice—
      "BY THE COURT:
      " — Just a moment, sir.
      BY [DEFENSE COUNSEL]:
      "When I make an objection, the State—
      BY THE COURT:
      " — I know, but you’re not supposed to make an objection when a man’s making a closing argument.
      "BY [THE PROSECUTOR]:
      "I object to frivilous [sic] objections by the Defense.
      "BY THE COURT:
      "Nobody is.
      BY [DEFENSE COUNSEL]:
      "Your Honor, I may object when counsel makes an appeal to prejudice the safety of the community in a trial of an individual on the facts of this case. I make that objection, and I urge that the Court admonish the Jury to disregard that argument.
      "BY [THE PROSECUTOR]:
      "I argue to the Court to admonish Mr. Reed to keep his mouth shut.
      "BY THE COURT:
      "All right now, look, — Ladies and Gentlemen of the Jury, as I told you originally, both sides have the right to make fair comment on the evidence as they appreciate it. The Court cannot comment on the evidence. What they have to say to you does not constitute evidence. It's an aid in helping you arrive at a verdict.
      “Proceed.
      BY [DEFENSE COUNSEL]:
      "Note my objection, Your Honor.
      "BY [THE PROSECUTOR]:
      “Thank you.
      BY THE COURT:
      “Note the Court’s ruling, too. Proceed, sir.”

      . While the prosecutor’s function is to obtain convictions, he has a duty to refrain from argument which injects issues broader than the defendant’s guilt or innocence under the law or which predicts consequences of an acquittal, thereby diverting the jury from its duty of deciding the case on the evidence. See ABA Standards for Criminal Justice, The Prosecution Function, Ch. 3, § 5.8(d) (2d ed. 1979); State v. Kaufman, 304 So.2d 300 (La.1974).


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. Frasher WILLIAMS.
    No. 84-KA-0138.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Rehearing Denied Nov. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Beryl McSmith, Asst. Dist. Attys., for plaintiff-appellee.
    Elizabeth Cole, Supervisor, Tulane Law Clinic, Richard Ackerman, Student, Tulane University School of Law, Tulane Criminal Law Clinic, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Frasher Williams was charged by bill of information with aggravated arson in violation of La.R.S. 14:51. After trial by jury, he was found guilty as charged. The state then filed an information accusing defendant of being an habitual offender under La.R.S. 15:529.1 (Habitual Offender Law). After a hearing, the trial judge found defendant to be a second felony offender and sentenced him to serve six and two-thirds years at hard labor. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence. Seven of these assignments of error do not represent reversible error nor do they involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published but which will comprise a part of the record in this case. The two remaining assignments of error involve an asserted restriction on defense counsel’s voir dire examination of prospective jurors (Assignment of Error No. 2) and the sufficiency of the evidence to support defendant’s conviction (Assignment of Error No. 12).

FACTS

The events leading up to defendant’s conviction arose from his relationship with Naomi Stevenson, who worked as a maid at the London Lodge Motel on Airline Highway in New Orleans. Defendant had visited Ms. Stevenson at the motel on several occasions and was seen there by the owners at various times. On October 19, 1980, Hose LaFleur, Jr., one of the co-owners of the motel, called a taxi for Ms. Stevenson at the end of her shift. Fifteen minutes after she left, defendant appeared at the motel demanding to see Ms. Stevenson. LaFleur told defendant that Ms. Stevenson had left for the day and was no longer at the motel. According to LaFleur, defendant became insistent, apparently not believing him, and threatened, “If you don’t want me to talk to Naomi, I’m going to burn the damn place down.” LaFleur then ordered defendant off his property. Later that evening, defendant called the motel and demanded to speak to Ms. Stevenson. Again, after being informed of her absence, defendant threatened to burn the place down. Less than an hour later, defendant called the motel again and made the same demand. LaFleur repeatedly told him that Ms. Stevenson was not at the motel, and defendant responded with the same threat: “If you don’t let me talk to Naomi, I’m going to burn the ... place down.” After that call, LaFleur called the police and reported the threats of arson. A police officer came to the scene and a report was made.

The next morning, at about 8:30, defendant was seen walking past the motel toward a gas station with a plastic milk container in his hand. A short time later, defendant returned to the motel, still carrying the container. Paul Stevens, another co-owner of the motel, became concerned, called the police, and began to follow defendant. He saw defendant pour a liquid from the container onto the ground next to the motel, take a match, and set the liquid on fire in two different places. Flames rose two or three feet into the air, and the grass against the side of the building burned. The building was a part of the motel where rooms were located and was constructed of brick and wood. The flames made contact with the building and scorched the wall. Stevens ran to the fire and began stomping it out. Meanwhile, defendant had continued walking down the motel building pouring the liquid out of the container. Defendant made no attempt to flee the scene. Shortly thereafter, the police arrived and placed defendant under arrest. He was identified by Stevens as the man who started the fires. The estimated damage to the wall of the motel building was ten dollars.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in curtailing his examination of prospective jurors during voir dire with regard to their understanding of defendant’s right not to testify. He argues that he was thereby denied his constitutional right to a full voir dire examination.

After commencement of the jury selection and prior to questioning, the trial judge instructed the entire jury panel to listen to what the attorneys said to the first set of prospective jurors in order to avoid unnecessary repetition. The entire panel was told that if they could not hear, did not understand, had questions, or had answers that were different, then they were to let the attorneys know. Both the trial judge and defense counsel instructed the panel about defendant’s right not to testify. This instruction included reference to the state’s burden of proof, the presumption of innocence, and the right of defendant not to take the stand in his own behalf. It was repeated on several occasions throughout the voir dire. As each new set of jurors entered the jury box, the trial judge directed a standard set of questions to them, asking if they were able to hear everything that was said to the other jurors, if they could accept all principles of law given, if they understood everything, and if their answers would be different. Also, defense counsel was allowed to ask each prospective juror if he could accept defendant’s right not to testify and not to consider it in determining his guilt. Throughout the entire voir dire, all of the jurors indicated that they could accept and apply the law and not hold it against defendant if he did not testify. However, during the latter part of voir dire, when defense counsel sought to inquire into a juror’s past service on another jury and the instruction given about the defendant not taking the stand, the trial judge interrupted stating, “We’re not going to repeat all that ...,” and, over defense counsel’s objection, stated:

Please note for the record that counsel has been permitted on two previous occasions to explore the entire realm of reasonable doubt and the Defendant not tes-tifing [sic], as well as, jurors being informed that fact by the Court. The Court feels this is repetitious, its already been covered....

The trial judge went on to state that defense counsel should ask if prospective jurors heard what had been said to the others and if they could accept and apply the principles of law explained earlier. On several occasions, the trial judge did limit defense questions directed at what a juror would be “thinking” if defendant did not testify. However, the trial judge then proceeded to instruct the juror on the proper law relative to defendant’s right not to testify.

La. Const, art. 1, § 17 guarantees that “[t]he accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” La.Code Crim.P. art. 786 further provides that the court, the state, and the defendant shall have the right to examine prospective jurors, and the scope of the examination shall be within the discretion of the court. The purpose of voir dire examination is to determine the qualifications of prospective jurors by testing their competency and impartiality. It is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. The scope of voir dire examination is within the sound discretion of the trial judge and his rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. In order to determine whether a trial judge has in fact afforded a sufficiently wide latitude to the defendant in examining prospective jurors, a review of the trial judge’s rulings should be undertaken only on the record of the voir dire examination as a whole. State v. Jackson, 358 So.2d 1263 (La.1978).

While it may have been improper for the trial judge to limit the individual questioning of prospective jurors on their understanding of defendant’s right not to testify, it is evident from the record of the entire voir dire that the jurors were questioned, properly instructed and indicated their understanding of defendant’s right not to testify. Many of the questions of defense counsel were unnecessarily repetitious. After reviewing the rulings of the trial judge on the -record of the voir dire examination as a whole, we are satisfied that he afforded sufficient latitude to defense counsel in examining prospective jurors.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant contends there was insufficient evidence to support his conviction for aggravated arson. Specifically, he argues that scorching is not sufficient evidence of damage to the building.

The question presented is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Moore, 419 So.2d 963 (La.1982). La.R.S. 14:51 defines aggravated arson as the intentional damaging by setting fire to any structure whereby it is foreseeable that human life might be endangered.

In the instant case, defendant poured gasoline onto the ground next to the wall of an occupied motel and ignited it. The flames made contact with the wall, which was composed of brick and wood, and scorched it, causing damage to the building estimated at about ten dollars. Although the damage to the building was slight, it is sufficient to support the conviction. Additionally, there was ample evidence that defendant intended to damage the property by setting fire to it and that it was foreseeable to him that human life might be endangered. Hence, there was sufficient evidence for a rational trier of fact to convict defendant of aggravated arson.

Assignment of Error No. 12 is without merit.

DECREE

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

DIXON, C.J., and DENNIS, J., dissents with reasons.

CALOGERO, J., dissents being of the view that Assignment of Error No. 2 is meritorious.

LEMMON, J., subscribes and assigns additional reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

I cannot agree that defendant was accorded the right of “full voir dire examination” under La. Const, article 1, § 17. Nor is there any evidence in this record of “setting fire to any structure,” as arson is defined in R.S. 14:51. The only damage to the building was a small scorched area of the brick exterior. The defendant is surely guilty of some offense, but not of aggravated arson.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The trial court repeatedly prevented the defense counsel from questioning prospective jurors as individuals, rather than as a panel, on certain significant questions. Under our previous jurisprudence interpreting the state constitutional guarantee of the right to full voir dire, the trial judge’s actions constituted reversible error. In State v. Dixon, 365 So.2d 1310 (La.1979), for example, we said:

Whatever else the right entails, it certainly includes addressing, hearing and observing the veniremen directly and as individuals. Otherwise, it would be difficult for counsel to judge whether a particular venireman in a group had given his own answer truthfully and candidly or if, in fact, he had answered at all. Because of the difficulty of the concepts and values which must be understood and applied by each juror in his deliberations, counsel for each side is entitled to an opportunity to assess the personality and comprehension of each prospect as a unique human being before accepting him as a juror or challenging him for cause or peremptorily. To relegate the defendant’s attorney to the role of asking the veniremen en masse for an evaluation of whether they would answer “substantially” as other jurors clearly deprives him of essential insights into the understanding and attitudes of each prospective juror and denies his client the right to full voir dire. State v. Jackson, [358 So.2d 1263 (La.1978)] supra. See, State v. Boen, [362 So.2d 519 (La.1978)] supra; State v. Hills, [241 La. 345, 129 So.2d 12 (1961)] supra.

The majority should have: (a) rebuked the trial court for not following this interpretation of our state constitution; or (b) acknowledged that it had chosen to follow the trial judge in overruling or distinguishing all of our prior voir dire opinions. In either case, the majority should have taken notice of the relevant precedents, discussed them, and given good reasons for adhering to or breaking with them.

As a supreme court, this court should bear in mind that it is no longer the sole criminal appellate tribunal but that it has the responsibility for the authoritative interpretation of the law and the constitution for 48 intermediate court judges as well as 161 district judges with criminal jurisdiction.

LEMMON, Justice,

subscribing to the opinion and assigning additional reasons.

Although the question is very close, I agree that the instances of voir dire limitation did not produce constitutional error. Compare State v. Duplessis, 457 So.2d 604 (La.1984), decided this day. However, trial judges who wish to avoid retrials would do well to remember that the accused is constitutionally entitled to a voir dire examination which will enable him to exercise intelligently his peremptory challenges, as well as challenges for cause, and that counsel is accordingly entitled to develop information beyond a juror’s mere willingness to follow stated law.

The principal reason I am writing separately is to emphasize that we are declining to construe the Louisiana arson statutes only according to traditional common law notions of fire-caused property damage that results in some actual “wasting” (as opposed to “scorching”) of the structure. See R. Perkins, Criminal Law, Ch. 3, § 2B (2nd Ed.1969). Instead, we hold that aggravated arson occurs under La.R.S. 14:51 when:

1. There is the slightest damage to: a structure, a watercraft, or a movable; and
2. The damage is caused either by (a) the intentional use of an explosive substance or (b) the intentional setting of a fire; and
3. The intentional criminal act (using an explosive substance or setting a fire which results in damage) creates a foreseeable possibility that human life will be endangered.

When the statute is thus construed, the gravaman of the completed offense is any damage to certain types of property (structure, watercraft or movable) caused by a prohibited act (intentional use of explosives or setting of fire) which foreseeably endangers human life. This simple and straightforward construction avoids many technical problems encountered in other states.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 3, 5, 6 and 13. Hence, we consider them to have been abandoned. State v. Carlisle, 315 So.2d 675 (La.1975); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

      .During the voir dire examination, the trial judge did unduly restrict defense counsel in several instances from using open-ended questions in order to elicit a response from the prospective juror as to his feelings on the presumption of innocence. However, counsel was perceptive enough to use other methods of questioning the prospective juror in order to obtain the information sought. Thus, while the trial judge on several occasions unduly limited defense counsel to questions relating to whether the juror could follow the law on presumption of innocence and did not permit questions which would have allowed the juror to express personal attitudes toward the presumption, the entirety of the voir dire examination reveals that defense counsel had adequate opportunity to probe for challenges for cause and to intelligently exercise peremptory challenges.

      . Even under the statutory construction that more than “scorching’’ is required, this defendant damaged the motel wall by igniting an explosive substance (gasoline). Nevertheless, the clearest and simplest construction is that the criminal consequence requirement of aggravated arson is satisfied by proof of any damage by fire or explosive substance "whereby it is foreseeable that human life might be endangered”. Presumably, this same construction will be applied to simple arson and arson with intent to defraud in cases where there is no foreseeable danger to human life. See La.R.S. 14:52 and 53.

      . The slightness of the damage is a factor which may be considered by the court in determining sentence.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. John E. BROGDON.
    No. 82-KA-0925.
    Supreme Court of Louisiana.
    Sept. 10, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., Gregory Champagne, Abbott Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Victor E. Bradley, Jr., Norco, Manina Dubroca, St. Rose, Robert P. Führer, Morgan City, for defendant-appellant.
   DENNIS, Justice.

This is our second capital sentence review in this case. Defendant, John E. Brogdon, was convicted of first degree murder and sentenced to death in accord with the jury’s recommendation. On appeal, this court affirmed defendant’s conviction but reversed the sentence and ordered a new penalty hearing. State v. Brogdon, 426 So.2d 158 (La.1983). On remand, after a change of venue and a penalty hearing before a different judge, a different jury recommended capital punishment, and the court sentenced defendant to death. In this appeal of the capital sentence only, defendant raises 27 assignments of error, arranged in 24 arguments. We consider all arguments and assignments, although some are discussed in abbreviated form, and affirm the sentence.

The following factual summation by this court in its previous review of defendant’s case contains the background facts:

At approximately 7:00 p.m. on October 7, 1981, Barbara Jo Brown (Bobby) [the eleven year old victim] and her older sister Rubeta walked to a Time Saver convenience store a few blocks from their Luling, Louisiana home to use a pay telephone. While on the telephone, Rubeta saw the nineteen-year old defendant and seventeen-year old Bruce Perritt arrive at the store. Perritt approached Bobby and put his arm around her. Rubeta called her away and the two left the store. On the way home, Rubeta gave Bobby permission to visit a neighbor and told her that she would return for her in a few minutes.
Rubeta returned for Bobby about ten minutes later and learned that she had returned to the Time Saver. Unable to find Bobby at the convenience store or at the homes of any of their neighbors, Rubeta notified her mother, who was at work, and called the police. A young friend of Bobby’s stated that she had seen her earlier that evening in a car, sitting between the defendant and Per-ritt. Shortly after 9:00 p.m., two young men were driving behind a levee near Luling and came upon Bobby’s body. Perritt’s vehicle was parked a short distance away. Shortly thereafter, two other men saw the defendant and Perritt walking on a road near the levee. The defendant was without a shirt and appeared disheveled. Based on this set of circumstances, the defendant and Perritt were arrested for the murder of Barbara Jo Brown.
The defendant voluntarily confessed to the murder. In the statement, he described a crime of unparalleled savagery and brutality. The defendant recounted how he and Perritt had picked up Bobby at the Time Saver and driven her to the levee. The two repeatedly raped her and forced her to perform oral sex on them, all the while pummeling her with their fists. They then broke bottles on the cement and stabbed her repeatedly with the jagged edges. Perritt found a brick and hurled it at Bobby, striking her in the head. The defendant then used the brick to beat her until he ‘thought she was dead.’ Throughout the ordeal Bobby had pleaded for her life and fought back against her two assailants as best she could. The extensive bruises and lacerations on her forearms were described by the pathologist as defensive in nature. The defendant stated that he had killed Bobby because she knew her assailants, and he was afraid that she would “tell on them” for raping her.
At trial, the pathologist testified that Bobby had been brutalized so extensively that her skull, internal organs, and vertebrae were exposed. Bobby’s vagina had been pierced with a sharp object all the way into her abdominal cavity. Two blood-covered, pointed sticks were found at the scene of the crime, both of which the defendant and Perritt had used to brutalize and torture their victim beyond that which they could accomplish with their hands and other crude weapons.
The defendant attempted to plead guilty to the crime, but the trial judge refused to accept the plea and entered for him pleas of not guilty and not guilty by reason of insanity. A sanity commission was appointed by the trial court, and, after a separate sanity hearing, the defendant was found capable of standing trial. At trial, the defendant’s only witness was a psychologist who testified that the defendant had suffered a psychotic episode at the time of the offense and did not, at that time, know the difference between right and wrong. She testified that the defendant had a borderline I.Q. and personality disorder which would account for his violent and aggressive nature. In rebuttal, the two sanity commissioners testified for the state that the defendant had understood the natural consequences of his acts at the time of the offense. (Footnotes Omitted.)
426 So.2d at 162-163.

At the commencement of the second penalty hearing before a different jury the judge informed the jurors that the defendant previously had been tried and found guilty of first degree murder; that it was their function, after hearing the same evidence presented at trial and any additional evidence, to recommend as a sentence either death or life imprisonment without parole. During the hearing the parties presented through live witnesses substantially the same evidence introduced at the guilt phase trial.

At the conclusion of the second penalty hearing the jury recommended that the defendant be sentenced to death and found two aggravating circumstances: (a) the offender was engaged in the perpetration or attempted perpetration of aggravated rape; and (b) the offense was committed in an especially heinous, atrocious, or cruel manner. The district court sentenced the defendant in accordance with the jury’s recommendation, and the defendant appealed.

Assignments of Error Numbers 1 and 16

The district court excluded the defendant’s proffer of testimony by a Catholic priest and a Jewish rabbi to the effect that capital punishment in any case conflicts with particular religious or moral principles. Defendant argues that this constituted reversible error because the jury may consider any relevant mitigating circumstance in a capital sentence hearing. La.C. Cr.P. art. 905.3; 905.5(h); See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) “[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604-05, 98 S.Ct. at 2964-65 (footnote omitted) (emphasis in original).

The evidence proffered in mitigation was not relevant to any issue which may properly be resolved in a capital sentence hearing. By enacting the death penalty statute the legislature decided that capital punishment is socially and morally appropriate punishment for some first degree murderers. In establishing the capital sentence hearing the legislature sought to direct and limit the jury’s discretion so that there would be a meaningful basis for distinguishing the cases in which it is imposed from the many cases in which it is not. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932; 49 L.Ed.2d 859 (1976). Evidence that the death penalty per se is immoral does not tend to show how a particular defendant compares with or is to be distinguished from other capital offenders. This type of evidence would be relevant to a legislative or constitutional attack upon the death penalty in general, but it does not assist the jury in its function of deciding how a particular defendant should be ranked among other capital offenders. Cf. State v. Watson, 449 So.2d 1321 (La.1984).

This assignment is without reversible merit.

Assignments of Error Numbers ¾ 3 and 13

Defendant argues that the district court erred by permitting the state to introduce evidence of his confession, consent to search and waiver of rights forms in the sentencing hearing. This evidence had been introduced during the previous guilt phase trial, after the court overruled defendant’s motion to suppress. The defendant filed another motion to suppress this evidence prior to the second sentencing hearing. The court permitted the defendant to introduce in support of the motion additional evidence not considered in his initial effort to suppress his confession, consent to search and waiver of rights. After considering the new evidence and a transcript of the testimony presented at a hearing on the first motion to suppress, the district court denied defendant’s motion.

The Code of Criminal Procedure provides that the jury in a capital sentence hearing may consider any evidence offered at the trial on the issue of guilt. La.C. Cr.P. art. 905.2. If the introduction of such evidence at the sentencing hearing would be fundamentally unfair or inject into the proceedings a substantial risk that the death penalty will be inflicted in an arbitrary or capricious manner, the court’s constitutional obligation to exclude such evidence would override the statute. See Gregg v. Georgia, supra, 428 U.S. at 188, 96 S.Ct. at 2932. In the absence of such an unfair, arbitrary or capricious element, however, the statute requires admission and consideration of the evidence.

The defendant bases his objection to the evidence on two grounds. First, he complains that the district judge did not actually see and hear the witnesses at the first motion to suppress hearing. The judge did not preside at the first motion to suppress hearing. She merely read the transcript of the witnesses’ testimony at that hearing. Second, the defendant argues that the evidence does not support a finding that his confession, consent to search and waiver of rights were voluntary.

Defendant’s arguments do not present reversible merit. The first trial judge determined that the motion to suppress should be overruled. The second trial judge determined that the newly presented evidence should not change that conclusion. Our review of the record convinces us that the second trial judge’s procedure and decision were reasonable and that the defendant’s right to a fair proceeding was not prejudiced. Moreover, we conclude therefrom that her determination that defendant’s confession was voluntary was not arbitrary or clearly erroneous. Finally, the introduction of this evidence relating primarily to defendant’s guilt in his penalty hearing did not inject an element of fundamental unfairness or a substantial risk of arbitrariness or capricousness into the sentence proceedings.

Assignment of Error Number 4

Defendant argues that the district court erred in rejecting his challenge of a juror for cause. The juror was a St. Mary Parish deputy assessor. He testified that his friendship, and his. wife’s acquaintance, with law enforcement officers within St. Mary Parish would not prevent him from rendering an impartial verdict. Since the officers directly involved in the investigation of the offense and presentation of the state’s case were St. Charles Parish officers, the judge’s finding that the juror’s relationship with St. Mary officers would not influence him in arriving at a verdict appears reasonable.

This assignment is without merit.

Assignment of Error Number 5

The trial court’s refusal to vary the normal order of trial at defendant’s request by deferring the opening statement of the defense until after the state’s case in chief was not an abuse of discretion. Defendant has presented no concrete basis for his conclusion that his defense was prejudiced by this ruling.

There is no merit to this assignment.

Assignment of Error Number 6

It was not error to allow introduction of photographs of the victim’s mutilated body. This evidence was relevant to whether the murder was committed in an especially cruel, heinous and atrocious manner, and its probative value for this purpose outweighed its prejudicial effect.

Assignments of Error Numbers 7 and 9

Defendant argues that the district court erred by admitting into evidence three photographs of the automobile used in committing the offense and various items taken from the vehicle. He contends there were no grounds for the warrantless search of the vehicle and that the state failed to prove a chain of custody or that the car had not been tampered with before the photography.

Officers discovered tbe automobile empty and apparently abandoned inside the levee near Luling. They knew the defendant had been arrested for the rape and murder of the victim whose body was discovered near the car. There was probable cause to believe the vehicle had been used to commit the crimes and therefore constituted evidence of the crime and contained other criminal evidence. The auto was located in a place open to the public, and a rainfall threatened to wash away any exterior fingerprints. Thus, the officers were faced with exigent circumstances requiring that they elect one of two courses “reasonable under the Fourth Amendment,” Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); either impound the car until a warrant was obtained or carry out an immediate search without a warrant. Under all of the circumstances, the election of the latter reasonable course by the officers does not require that we invalidate their search. See State v. Lewis and Berry, 378 So.2d 396 (La.1979). The evidence does not reflect any substantial basis for questioning the integrity of evidence due to tampering or loss of custody.

This assignment of error is without merit.

Assignment of Error Number 8

The prosecuting attorney requested his witness, a forensic biologist, to assemble a belt, buckle and loop, which had been taken from the vehicle and asked her whether they were matching articles. The district court overruled a defense objection. The witness fitted the items together but answered that she had not performed any scientific tests to determine if they “matched.” The defendant argues that this was reversible error because the state failed to lay a proper foundation and the witness was not qualified to testify as to whether the exhibits matched. However, as a matter of fact, the witness did not testify as to whether they matched. As for the witness’s demonstration of whether these commonplace articles of clothing could be fitted together, no foundation qualifying her as an expert was necessary. Louisiana law requires that before a witness may qualify as an expert a foundation establishing his competency must be provided to the satisfaction of the court. La. R.S. 15:466. The fact that a witness called as an expert is not competent to give expert testimony, however, does not affect his competency to testify as to matters not requiring expert knowledge. La.R.S. 15:467. By analogy, since no expert knowledge was required to show how the articles of clothing could be assembled, no special foundation for the witness’s demonstration was required.

This assignment is without merit.

Assignment of Error Number 10

It was not error to permit the prosecutor to elicit an officer’s opinion that the defendant had made his statement willingly. The opinion rule directs the trial judge to prefer admission of the more concrete description to the less concrete, and the direct form of statement to the inferential. He may more liberally use his discretion to admit opinions and inferences as to collateral matters, but he must exercise it more strictly in order to see that the concrete details are brought out as to more crucial matters. There was no reversible error here because the opinion or inference involved did not relate to a matter crucially at issue. See State v. Wheeler, 416 So.2d 78 (La.1982).

Assignment of Error Number 11

When a law enforcement officer was asked, as a prosecution witness, whether defendant understood the Miranda warnings, he replied: “He indicated he understood. He told me he had been arrested before and that he ...” Defense counsel objected and moved for a mistrial, which was denied. The defense rejected the court’s offer to admonish the jury to disregard the remark. There was no reversible error. A police officer is not a court official. Consequently, the remark was not a reference by a court official to another crime committed or alleged to have been committed by the defendant, constituting mandatory grounds for mistrial. La. C.Cr.P. art. 770(2). The district court determined that an admonition would have been sufficient to assure the defendant a fair trial. In such a case this decision is within the trial judge’s sound discretion. La.C.Cr.P. art. 771. She did not abuse it in this instance.

Assignment of Error Number 12

Defense counsel called as a witness Victor Bruce Perritt, the codefendant whose trial had been severed from defendant’s. The defense proposed to have Perritt testify that he had been convicted of first degree murder for his part in the killing and that he had been sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. The court sustained the state’s objection to relevancy and ruled this portion of Perritt’s testimony inadmissible. The judge agreed that Perritt’s sentence was irrelevant and was made further irrelevant than a statutorily imposed sentence because it was imposed as a result of a hung jury. Defendant contends this ruling was in conflict with Code of Criminal Procedure articles which provide that the jury may consider any relevant mitigating circumstance. We conclude that the trial judge ruled correctly, although the question is not without difficulty.

In order to pass federal constitutional muster capital sentencing procedures must be designed to prevent a substantial risk that the death penalty will be inflicted in an arbitrary and capricious manner by directing and limiting the jury’s discretion so that the death penalty will be imposed in a consistent and rational manner and so that there will be a meaningful basis for distinguishing the cases in which it is imposed from the many in which it is not. See Gregg v. Georgia, supra; Lockett v. Ohio, supra, 98 S.Ct. at p. 2963.

In Louisiana, our state constitution prohibits the imposition by law of excessive punishment. La. Const, art. 1 § 20. Accordingly, a sentence which amounts to excessive punishment under the constitution is prohibited, even if it has been authorized by statute. State v. Sepulvado, 367 So.2d 762 (La.1979). A constitutionally excessive sentence is one that is grossly out of proportion to the severity of the crime; or makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering. State v. Lathers, 444 So.2d 96 (La.1983); State v. Telsee, 425 So.2d 1251 (La.1983); State v. Sims, 410 So.2d 1082 (La.1982); State v. Johnson, 406 So.2d 569 (La.1981); State v. Kersey, 406 So.2d 555 (La.1981); State v. Snider, 406 So.2d 209 (La.1981); State v. Russell, 397 So.2d 1319 (La.1981); State v. Williams, 397 So.2d 1287 (La.1981); State v. Beavers, 382 So.2d 943 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). In determining whether a sentence is grossly disproportionate to an offense, consideration must be given to whether the sentence is disproportionate to the penalties imposed in similar cases, considering both the circumstances of the crimes and the characters and propensities of the offenders. State v. Lathers, supra; State v. Telsee, supra; See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The considerations that account for the use of these standards in determining whether non-capital sentences are excessive surely cannot be less important in capital cases. Given that the imposition of death by public authority is so profoundly different from all other penalties, Lockett v. Ohio, supra, we cannot avoid the conclusion that the same standards of sentence review, including the comparison of similar cases for proportionality, are essential in capital cases under our state constitutional guarantee against excessive punishment.

In an effort to institute a constitutional death penalty system, the legislature enacted a bifurcated trial procedure patterned after others previously approved by the United States Supreme Court. Under the system the jury first decides the guilt or innocence of the accused. After a determination of guilt of first degree murder, the jury decides whether a life sentence or a death penalty is appropriate to the particular case. La.C.Cr.P. art. 905, 905.1. The jury’s discretion is directed and limited in that it must find that defendant’s case involves a legally prescribed, aggravating circumstance as a prerequisite to the imposition of the death penalty. La.C.Cr.P. art. 905.3, 905.4. Furthermore, before recommending a death penalty, the jury must consider certain statutorily prescribed mitigating circumstances and any other relevant mitigating circumstance which may exist in defendant’s case. La.C.Cr.P. art. 905.3, 905.5(h). To complete the death penalty system the legislature mandated that the Louisiana Supreme Court “shall review every sentence of death to determine if it is excessive” and “shall establish such procedures as are necessary to satisfy constitutional criteria for review.” La.C.Cr.P. 905.-9.

In cooperation with the legislative effort to implement a death penalty system that meets both federal and state constitutional requirements, this court in response to the request or mandate of the legislature established procedures deemed necessary to satisfy constitutional criteria for review. See La.C.Cr.P. art. 905.9; La.Supreme Ct. Rule XXVIII. The primary requirements of these constitutionally necessary procedures are that “every sentence of death shall be reviewed to determine if it is excessive,” and that three standards be used to measure for excessiveness, one of which is “whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” La.Sup.Ct. Rule XXVIII, Section 1.

Defendant argues that he was entitled to have the jury consider that his codefendant received a life sentence as a mitigating circumstance or as a meaningful basis for deciding whether his case falls within the capital or non-capital punishment category. There can be little doubt that a comparison of defendant’s case to similar first degree murder cases would provide a meaningful basis for determining whether the case is one of the relatively few in which the death penalty is to be imposed or one of the many in which it is not. Such a comparison also could reveal to the sentencer other relevant mitigating circumstances not listed in the statute.

We conclude, however, that the district court did not err in deciding that the evidence was inadmissible. A detailed comparison of the individual aspects of a defendant’s case with those of similar cases is certainly relevant to the ultimate goal of our system, viz., to meaningfully distinguish between the cases in which capital punishment is imposed and the many in which it is not. The presentation and consideration of such comparative information to a jury, however, would be excessively time consuming, and probably confusing and distracting. Cf. State v. Ludwig, 423 So.2d 1073 (La.1982). In the absence of an express statutory requirement, therefore, we do not believe that it was the legislative aim to require a detailed comparative analysis of other first degree murder cases and sentences by the jury in a capital sentence hearing. The jury is not precluded from deciding on an intuitive basis whether the death penalty is disproportionate after considering any other mitigating evidence. Furthermore, although this relevant evidence is excluded from the jury proceedings in the interest of avoiding excessive time consumption, confusion or distraction, the duty of performing a detailed comparative proportionality review as a safeguard is imposed on this court by the constitution and court rule. La. Const, art. 1 § 20; La.Sup.Ct. Rule XXVIII. This court does not sit as a sentencer in capital cases. In reviewing each capital sentence to determine if it is excessive, however, this court is required to perform an objective comparative proportionality review to assure that the jury’s intuitive proportionality determination was not unreasonable. Id.

Assignment of Error Number lj

By this assignment defendant contends that the district court erred by allowing the prosecution to introduce evidence obtained from a search of the house trailer in which he and his codefendant were arrested.

Prior to trial defendant moved to suppress his confession as well as certain hair, blood and saliva samples, but when queried by the trial judge, he specifically declined to challenge the evidence at issue through these assignments and consequently the evidence was introduced without objection in the guilt phase. Accordingly, unless the defendant can show how reintroduction of the evidence would be unfair or inject an element of arbitrariness or capriciousness into the proceedings, the statute permits its reintroduction. Because the jury was rightfully aware that the defendant’s guilt had been established, we are unable to see how defendant was unfairly prejudiced by the reintroduction of this evidence.

This assignment is without merit.

Assignment of Error Number 15

By this assignment defendant complains of references by state witnesses to a rape evidence kit which ultimately was not introduced into evidence. The state’s forensic biologist witness and a chain of custody witness referred to the kit in their testimony. When the state offered the kit during the second sentence hearing, the defense objected because the doctor who removed the pubic hairs from the victim had not testified. The state withdrew its offer, and the kit was not introduced. Nevertheless, the defendant argues that his case was unfairly prejudiced by the state’s witnesses’ references to the kit. This argument is without merit. The rape evidence kit had been introduced into evidence during the guilt trial. Its reintroduction at the penalty phase would not have created a substantial risk that the death penalty would be inflicted in an arbitrary or capricious manner. Appreciable evidence that defendant raped the victim was introduced at both the guilt and penalty trials. The defendant did not attempt to mitigate his offense by showing lack of complicity in rape of the victim. There does not appear to be a substantial possibility that the mere mention of the existence of a rape evidence kit by two state witnesses would have affected the jury’s penalty recommendation under the circumstances of this case.

Assignment of Error Number 17

In rebuttal to the defendant’s expert testimony as to his mental disease and retardation (tending to mitigate his offense), the state tendered medical evidence. It consisted of the testimony of the two psychiatrists, who had been appointed to a lunacy commission. However, one of the psychiatrists, Dr. Ritter, had also examined the defendant in jail as a treating physician on a single occasion when the defendant complained of headaches, insomnia and anxiety following his grandmother’s death. Although Dr. Ritter did not divulge any of defendant’s communications on that occasion, he conceded that his opinion of defendant’s mental condition, to which he testified, was based on all of his examinations, including the one in which he was a treating physician.

The defendant objected to the testimony of Dr. Ritter on the ground that his opinion was received into evidence contrary to the physician-patient privilege provided by La. R.S. 15:451. This enactment prohibits a physician from disclosing any information or opinion which he may have acquired while employed by any patient. Thus, the primary requisite for the privilege is that the patient must have employed and consulted the physician for treatment or for diagnosis looking toward treatment. See McCormick, Evidence § 103.

The statute expressly provides two exceptions to the privilege: The physician may disclose information or opinion so acquired with his patient’s consent; and the statute expressly exempts from its scope information derived from investigations by physicians under court appointment. Neither exception applies to any information or opinion acquired by Dr. Ritter on the single occasion in which he acted as defendant’s treating physician, as opposed to the times he acted under court appointment as a lunacy commissioner.

This court has recognized, however, that the physician-patient privilege is not intended to apply to information or opinion genuinely relevant to the narrow issue of defendant’s mental health or condition when defendant tenders either as an issue in the trial, provided also that its probative value outweighs its prejudicial effect. State v. Aucoin, 362 So.2d 503 (La.1978); State v. Berry, 324 So.2d 822 (La.1975).

Accordingly, since defendant tendered his mental illness and retardation as an issue in the penalty hearing, information relevant to this narrow question is outside the privilege and should have been admitted unless it was unduly prejudicial. We conclude that Dr. Ritter’s testimony was highly probative and not unfairly prejudicial. He excluded from his testimony any information given to him by the defendant when he treated him. Thus, none of the prejudicial factors which this court has directed trial courts to consider and weigh carefully were present. See State v. Aucoin, supra at 506. The probative value of Dr. Ritter’s testimony clearly outweighed its prejudicial effect, and it was properly admitted.

Assignment of Error Number 18

By this assignment the defendant argues that the district court permitted the state to introduce improper rebuttal evidence. Defendant’s psychiatrist witness explained the difference between legal insanity and one of the mitigating circumstances, viz., “[a]t the time of the offense the capacity of the offender to appreciate the criminality of his conduct as to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.” La.C.Cr.P. art. 905.5(e). He testified that the defendant was mentally retarded, and thereby defective, and was afflicted with a borderline personality, which is a mental disease.

In rebuttal the state, over the defendant’s objection, was permitted to introduce psychiatric opinion testimony to the effect that defendant was legally sane at the time of the offense. Defendant argues that this evidence was confusing and improper rebuttal. The argument is without reversible merit. The prosecution has the right to rebut the evidence adduced by the defendant. R.S. 15:282. Rebuttal evidence is that which is offered to explain, repel, counteract or disapprove facts given in evidence by the adverse party. State v. Constantine, 364 So.2d 1011 (La.1978). The prosecution’s rebuttal evidence explained and counteracted the defendant’s evidence, and it was fairly offered as a possibly needed clarification after the defense adduced evidence as to legal insanity from its expert witness.

Assignment of Error Number 19

The state’s psychiatrist witnesses were not erroneously allowed to testify from records which they did not compile. The records complained of were introduced at the guilt phase of the trial and more importantly, the psychologist who prepared them was called as a witness at the sentencing hearing and testified at length as to her testing and test results which comprised the record objected to. The introduction of the evidence did not violate the physician-patient privilege because it related to the mental defect or disease which defendant tendered as an issue.

Assignment of Error Number 20

By this assignment the defendant complains for the first time that the death penalty should be set aside because the prosecution psychiatrists referred to defendant’s acts as an example of “sadistic behavior.” Defendant argues that this testimony was not relevant to whether the murder was committed in an especially heinous, atrocious or cruel manner, that the term “sadistic behavior” is inflammatory, and that the testimony’s prejudicial effect therefore outweighed its probative value. It is self evident that this argument is without merit.

Assignment of Error Number 21

It was not reversible error to permit the prosecution to ask its psychiatrist witness to describe what most laymen understood by “mentally retarded.” The doctor was qualified to testify as to the subject, and it was a proper part of the state’s rebuttal to the defense mental retardation case in mitigation.

Assignment of Error Number 22

In his \elosing argument the prosecuting attorney stated that the defendant’s confession had been “[sjigned on every page by John Brogdon, by Kenny Schmill, by Prank Larson-Lansen. There has been no testimony that this man didn’t sign it. And, they all testified he did.” Defendant argues this remark warranted a mistrial because it “refers directly or indirectly to ... [t]he failure of the defendant to testify in his own defense.” La.C.Cr.P. art. 770(3). The argument is without reversible merit. The remark did not direct the jury’s attention to the defendant’s failure to take the stand in his behalf.

Assignment of Error Number 23

Defendant objected to the district attorney’s argument that “if I had been sitting in jail for a year, year and a half, two years; I don’t know if I could read rat....” This plainly was not an improper suggestion that the jury should accept the district attorney’s opinion or extra-judicial knowledge of a subject matter in place of evidence deduced at trial. The district attorney’s argument was proper as an attempt to persuade the jury of one reasonable view of the evidence, viz., that the defendant’s mental capacity had deteriorated while in jail.

Assignment of Error Number 25

By this assignment defendant contends that the district court erred in instructing the jurors that they were “not to be influenced by sympathy, passion, prejudice, or public opinion.” This court considered another defendant’s objection to an identical instruction in- State v. Watson, supra, and concluded that the instruction did not inject a substantial risk that the death penalty would be imposed unfairly, arbitrarily or capriciously for the following reasons: The instruction does not specifically direct the jury to eschew sympathy for the defendant but may have been intended to avoid a decision based on sympathy for the victim. The trial court fully enumerated the statutory mitigating circumstances and clearly instructed the jury that it must consider any other relevant mitigating circumstance in favor of the defendant. Furthermore, the district court instructed the jury that even though it found one or more aggravating circumstances, it could still conclude that the overall circumstances are insufficient to warrant a death penalty and would be free even in the absence of any evidence in mitigation to return a verdict of life imprisonment without benefit of parole, probation or suspension of sentence. Because the group of instructions given in the present case was substantially identical to those with which the jury was charged in State v. Watson, supra, we conclude that the defendant was not unfairly prejudiced by the challenged jury instruction.

This assignment of error lacks merit.

Assignment of Error Number 26

By this assignment defendant argues that one of the aggravating circumstances involved in this case, viz., that “the offense was committed in an especially heinous, atrocious, or cruel manner,” is unconstitutionally vague and overbroad. In reviewing death penalties based upon this aggravating circumstance, this court has applied a narrowing construction, viz., in order for the jury to find that the offense was committed in an especially heinous, atrocious or cruel manner, there must exist evidence, from which the jury could find beyond a reasonable doubt, that there was torture or the pitiless infliction of unnecessary pain on the victim. Furthermore, this court has stated that juries considering whether to impose the death penalty on the basis of this aggravating circumstance should be instructed on the proper, narrow construction of the statute. State v. Sonnier, 402 So.2d 650 (La.1981). When the aggravating circumstance is employed in this manner, as it was in the present case, it is not unconstitutional. Id.; State v. Clark, 387 So.2d 1124 (La.1980). See State v. Sonnier, 379 So.2d 1336 (La.1979) (on original hearing); State v. English, 367 So.2d 815 (La.1979).

Assignment of Error Number 27

By this assignment defendant argues that the state’s rebuttal argument contained an unfairly prejudicial comment: “[I]f that mitigation doesn’t outweigh the aggravating circumstances in this case, the cruelness (sic), the haneous (sic), the rape, then you have got to — the law says you have got to ... if I have proven, the State has proven this, beyond a reasonable doubt, I ask you and I beg you to bring back the death penalty and make that recommendation for John Brogdon.” The district attorney almost misstated the law to the jury. However, he broke off that statement before completion and merely requested the jury to bring back the death penalty if it found that he had proven an aggravating circumstance beyond a reasonable doubt.

Immediately thereafter in its instructions to the jury the trial court explained the law correctly and thoroughly. The trial court instructed the jurors that “even if you find the existence of one or more aggravating circumstances, you must also consider any mitigating circumstances before you decide whether the sentence of death should be imposed.” The trial court further instructed the jury that even after finding an aggravating circumstance, it may still conclude that the overall circumstances are insufficient to warrant death, and that it would be free, even in the absence of any evidence in mitigation, to return a verdict of life imprisonment. Under these circumstances, the near misstatement of the law by the district attorney in his closing argument did not create a substantial risk that the death penalty would be imposed unfairly, arbitrarily or capriciously.

This assignment is without merit.

INDEPENDENT REVIEW FOR EXCESSIVENESS

This court is required to review every sentence of death to determine if it is excessive and to establish review procedures by its own rules. La. Const., art. 1 § 20; La.C.Cr.P. 905.9. This court’s rule provides that in determining whether the sentence is excessive this court shall determine: (a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors; (b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance; and (c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. La.Sup.Ct. Rule XXVIII.

In reviewing the defendant’s assignments of error we have considered and disposed of a number of arguments related to (a) and (b) above. Now we undertake an independent review under (a), (b) and (c) of La.Sup.Ct. Rule XXVIII, section 1 to determine whether the sentence is excessive.

The Uniform Capital Sentence Report with the attached PSI report indicates that the defendant, a white male, was 19 years old at the time of the crime. He was unmarried with no children or other dependents. His father was an alcoholic child abuser who had been diagnosed as schizophrenic. His mother’s death in 1974 greatly impacted defendant’s life. Defendant had been brutalized by his father during his formative years. Defendant was one of five children who were eventually removed from the father’s house and placed in foster homes. Defendant, who completed sixth grade, was diagnosed a borderline personality with an I.Q. of 60-80.

He had no significant work history although he had worked as a service station attendant and a barge cleaner at various times. Defendant was known to be heavily involved in drug use. John Brogdon had been in trouble from his juvenile years; he had also run away from foster homes countless times.

The victim was an eleven-year-old white girl who had been raped, forced to perform oral sex, battered, bludgeoned, cut with a broken bottle, and struck with a brick. The defendant was not related to the victim; however, he knew her since they had grown up in the same area.

Defendant’s prior criminal record consisted of four misdemeanor offenses as a juvenile, one conviction of theft of less than $100 as an adult, and six arrests for non-traffic misdemeanors as an adult.

Review for Arbitrariness

From an independent review to determine whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, we find nothing which raises any question in addition to those argued by defendant and previously considered in this opinion. Accordingly, we have found no error which created a substantial risk that the death sentence was imposed in an arbitrary, capricious or unfair manner.

Review For Sufficiency of Evidence Supporting Jury’s Finding of Aggravating Circumstances

The jury found that (1) the defendant was engaged in the perpetration or the attempted perpetration of aggravated rape; (2) the offense was committed in an especially heinous, atrocious or cruel manner.

Defendant’s confession clearly indicated that both he and Perritt had raped the victim more than once in addition to making her perform oral sex, that they had hit and punched on her throughout and had then stabbed her with bottles and hit her with a brick while the eleven-year-old begged for her life. Dr. Paul McGarry, the pathologist who performed the autopsy on the victim, testified that there was extensive damage to the surface of the victim’s body; that her face was swollen with lacerations of the eyelids and to the bone of her forehead, fractures of her skull, and that the left side of her face was crushed and her nose broken. There were lacerations in the gums inside her mouth and deep stab wounds to her neck exposing the wind pipe and blood vessels. The major vein and the main artery of the neck were severed; she had lost most of her blood. There were three stab wounds to her chest and five to her upper abdomen which exposed her internal organs. There were also indications that she had been alive and trying to breathe while she was being stabbed and cut repeatedly. The victim also had extensive defensive injuries to her arms and elbows. Her vaginal tissues were swollen and rubbed raw with the skin partially missing. There were three stab wounds up through the vagina into her abdominal cavity. Due to the body swelling, Dr. McGarry concluded that it took over an hour from the time of the first injuries for eleven-year-old Barbara Brown to die. The evidence thus reasonably supports a finding of each aggravating circumstance beyond a reasonable doubt.

Comparative Proportionality Review

This court is required by our state constitution and its own rule in each capital sentence review to conduct a comparative proportionality review to determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. La. Const, art. 1 § 20; La.Sup.Ct. Rule XXVIII. State v. Lathers, 444 So.2d 96 (La.1983); State v. Lindsey, 428 So.2d 420 (La.1983), cert. den. sub nom Lindsey v. Louisiana, — U.S. —, 104 S.Ct. 261 (1983); State v. Telsee, 425 So.2d 1251 (La.1983); State v. Sepulvado, 367 So.2d 762 (La.1979) (See statistical proportionality review at page 772 and statistics in court’s unpublished but public appendix).

The district attorney is required to file a memorandum including a description of each first degree murder case in the district in which sentence was imposed after January 1, 1976. La.Sup.Ct. Rule XXVIII, Sec. 4. If there are not sufficient similar cases within the district, however, nothing prevents this court from referring to similar or comparable cases elsewhere in the performance of its constitutional and judicial duty to conduct a meaningful comparative proportionality review. See State v. Welcome, 82-KA-2232, 458 So.2d 1235 (La.1983) (Lemmon, J.).

Because we find that the list of cases presented by the district attorney does not contain any case similar to the present case, we refer to a group of cases from other districts. A brief description of each case follows:

State v. Baldwin, 388 So.2d 664 (La.1980) (First degree murder — death sentence). The defendant, a mature man whose age at the time of the crime was reported as 35 by one source and 40 by another, beat an 85 year old woman with a skillet, a stool and a telephone. He left her lying on her kitchen floor with broken jaw and cheek bones. She suffered brain damage and died the following day of a cerebral hemorrhage. The jury found that (1) the defendant was engaged in armed robbery (2) the offense was especially heinous. There was evidence that defendant consumed alcohol before the crime but no indication that he was unaware of his actions. The defendant's I.Q. was 147. The Post Sentence Report compiled in Baldwin’s case showed a prior history of criminal activity commencing at an early age.

State v. Willie, 410 So.2d 1019 (1982); 436 So.2d 553 (La.1983) (First degree murder — death sentence). The 25 year old defendant and his companion persuaded the 18 year old woman victim to get in their car with an offer of a ride home. They took her to a wooded area, disrobed her, forced her to walk naked down into a gorge where they raped her. After the rapes, one held her hands while the other repeatedly stabbed her in the throat. According to a pathologist, her death came slowly and very painfully. Aggravating circumstances found: (1) perpetration of aggravated rape; (2) especially heinous offense. The defendant’s I.Q. was a low normal of 81. His substantial history of criminal activity included simple burglary, motor vehicle violations, criminal damage, aggravated escape, conspiracy to kidnap, kidnapping and second degree murder.

State v. Sawyer, 422 So.2d 95 (La.1982) (First degree murder — death sentence). The almost 30 year old defendant and his companion stripped the young female victim, dragged her by her hair, and dunked her in a bathtub of scalding water. She was kicked in the chest and knocked unconscious in the bathroom. She was dragged into a living room and beaten and kicked. They poured lighter fluid on her torso and genital area and set her on fire. The victim died several weeks later as a result of the severe blows to her head and third degree burns over one third of her body. Aggravating circumstances found: (1) perpetration of aggravated arson; (2) especially heinous offense. Defendant’s prior record consisted of a conviction of involuntary manslaughter.

State v. Taylor, 422 So.2d 109 (La.1982) (First degree murder — death penalty). The twenty-nine year old defendant lured his adult male victim to a deserted shopping center parking lot on the pretext of inspecting a car the victim had advertised as for sale. He stabbed the victim over 20 times with a sharp knife at least three inches long and stuffed him in a car trunk. Medical evidence indicated that the victim lingered in pain for 10 to 20 minutes before dying. Aggravating circumstances found: (1) perpetration of armed robbery; (2) especially heinous offense. Defendant’s prior record consisted of an undesirable military discharge, a conviction of grand larceny, and pending charges of robbery and receiving stolen property.

The present defendant was younger and his criminal record less extensive than most of the offenders in the cases which we have used as the basis for comparison of sentences. Brogdon’s consumption of alcohol was excessive, and his dull normal intelligence and borderline personality diminished his intellectual capacity to some extent. Nonetheless, the jury was not unreasonable in concluding that these mitigating circumstances failed to offset the especially heinous, atrocious and cruel features of his murder and aggravated rape of an eleven year old child. Accordingly, we conclude that despite some- differences in circumstances, the defendant’s crime is comparable to those in the cases described above and that, as in those cases, the death penalty is not a disproportionate sentence.

Defendant argues that State v. East (Iberia Parish Docket No. 1976), a case cited in the State’s sentence review memorandum wherein a defendant received a life sentence instead of the death penalty, is comparable to his case and shows that his sentence is excessive. After being charged with first degree murder and being committed to a state mental institution for lack of mental capacity, East pleaded guilty to the second degree murder of a five-year old girl. East lured the child to a wooded area in New Iberia where he raped her and strangled her with a boot lace. East’s case is not comparable to Brogdon’s because East’s sentence resulted from a guilty plea to second degree murder which obviated a jury penalty hearing and determination. Moreover, there are significant differences between the cases. The description of the ease provided us does not indicate that the East homicide was as heinous as the present murder. It appears that East was definitely mentally retarded and far more emotionally unstable than Brogdon.

For the reasons assigned, defendant’s capital sentence is affirmed for all purposes except that this judgment shall not serve as a condition precedent to execution as provided by La.R.S. 15:567 until (a) defendant fails to petition timely the United States Supreme Court for certiorari, (b) that court denies his petition for certiorari or (c) further orders of this court.

CAPITAL SENTENCE AFFIRMED.

MARCUS, J., concurs:

CUTRER, Justice Ad Hoc, sitting for LEMMON, J., recused.

      . . La.R.S. 15:476 provides: "No physician is permitted, whether during or after the termination of his employment as such, unless with his patient’s express consent, to disclose any communication made to him as such physician by or on behalf of his patient, or the result of any investigation made into the patient’s physical or mental condition, or any opinion based upon such investigation, or any information that he may have gotten by reason of his being such physician; provided, that the provision of this article shall not apply to any physician, who, under the appointment of the court, and not by a selection of the patient, has made investigation into the patient’s physical or mental condition; provided, further, that any physician may be cross-examined upon the correctness of any certificate issued by him.”