text:
    STATE of Louisiana v. John F. PRICE.
    No. KA 1697.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Writ Denied Oct. 12, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., Robert Langer, Law Clerk, New Orleans, for plaintiff-ap-pellee.

      Anthony R. Crouse, Student Practitioner, Calvin Johnson, Supervising Atty., New Orleans, for defendant-appellant.
    Before GARRISON, KLEES and WARD, JJ.
   GARRISON, Judge.

The defendant, John F. Price, was charged by bill of information with possession of stolen property in violation of La. R.S. 14:69. The stolen property was valued at $180.00. The trial judge found the defendant guilty as charged and sentenced him to serve one year in Orleans Parish Prison. Defendant appeals his conviction and sentence.

The facts of this case are as follows: On August 10, 1982, Guyleen Murray left her apartment at 4:00 p.m. to pick up her husband from work. When they returned at approximately 5:45 p.m., the side door had been opened and their apartment had been ransacked. Many items were missing from the apartment including televisions, cameras and jewelry. One of the missing pieces of jewelry was an initialled heart-shaped gold pendant and chain valued at $180.00. This necklace was pawned at the Odyssey Gold Exchange on August 11, 1982, the morning following the burglary, for $20.00 by a man identified as John Price.

Mr. Morris Mahana, the proprietor of the Odyssey Gold Exchange, testified that his store policy requires that sellers present sufficient identification such as a driver’s license before a transaction will be completed. This information, along with the seller’s signature, a description of his or her attire at the time of the sale and a description of the pawned property are included in an identification report. A copy of this report is immediately sent to the Pawnshop Division of the New Orleans Police Department.

The report on the jewelry in question identified the seller as John Price. The information and signature on the report matched the information and signature on the defendant’s driver’s license. A routine check by the police department revealed that the property sold by Mr. Price at the Odyssey Gold Exchange matched a description of property stolen from the Murray’s apartment. This necklace was promptly retrieved by the police department and the defendant was arrested for possession of stolen property when he was recognized by police while being ticketed for a traffic violation.

Defendant claims that he has never seen the jewelry in question and that he did not pawn anything on August 11, 1982. He further claims that he always signs his name “John F. Price” and he asks the court to be persuaded by the fact that the signature on the pawnshop receipt was “John Price”. However, it should be noted that the signature on Price’s driver's license does not contain a middle initial.

A review of the record reveals that there are no errors patent.

Defendant alleges the following assignments of error:

(1) The trial court erred in denying the defendant’s motion for acquittal.
(2) The evidence presented at trial was insufficient to support a guilty verdict.

At the close of the State’s case, the defendant made a motion for acquittal pursuant to C.Cr.P. 778 which provides:

In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
If the court denied a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.

This motion was denied by the trial judge. The denial of a motion for acquittal may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion. State v. Hargrave, 411 So.2d 1058 (La.1982).

The four elements of the crime of illegal possession of stolen things are:

(1) the intentional procuring, receiving, or concealing
(2) of anything of value
(8) which has been the subject of any robbery or theft
(4) under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. La.R.S. 14:69; State v. Walker, 350 So.2d 176 (La.1977)

The State presented evidence which identified the defendant as the person who sold the jewelry to the Odyssey Gold Exchange. The jewelry was valued at $180.00 and was identified by Guyleen Murray as an item missing from her burglarized apartment. Additionally, the facts that the jewelry was sold within one day of the burglary, that the seller settled for payment of only $20.00 for jewelry valued at $180.00 and that the defendant denied pawning the necklace which was contradicted by the State’s evidence indicates that the defendant knew or had good reason to believe that the jewelry in question was stolen. The fact that the seller willingly gave his driver’s license as identification to the proprietor of the pawnshop does not prove that the defendant had no knowledge that the jewelry was stolen. Therefore, the State presented sufficient evidence of the essential elements of this crime and the denial of defendant’s motion for acquittal was not an abuse of the trial judge’s discretion. This assignment of error is without merit.

Defendant also contends that the evidence presented at trial was insufficient to support a guilty verdict. The standard of appellate review in criminal cases is stated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) as follows: Viewing the evidence in the light most favorable to the prosecution, a conviction must be based on proof sufficient for any rational trier of fact to find the essential elements of the crime charged beyond a reasonable doubt. Additionally, when circumstantial evidence is involved, La.R.S. 15:438 requires:

“Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

In this case, the identification report from Odyssey Gold Exchange contained information including the defendant’s signature, driver’s license number, height and weight. Defendant’s claim that the seller might have been one of his two sons, who are named John and Johnny, is insupportable. An establishment which requires detailed identification would certainly not allow a young man in his 20’s or 30’s to use as identification a driver’s license containing the picture of a 50 year old man. The overall evidence, direct and circumstantial, was sufficient for a rational juror to conclude that the defendant was guilty of possession of stolen property. This assignment of error is also without merit.

Therefore, for the reasons discussed above, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kenneth R. VALLERY
    No. KA 1734.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GARRISON, KLEES and WARD, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granted on May 19, 1983 in accordance with a six man jury verdict finding the defendant Kenneth R. Vallery guilty of violating R.S. 14:65, simple robbery. On May 31, 1983 defendant was sentenced to serve three years in Orleans Parish Prison.

On March 12, 1983 Pauline Meyer was attending the annual St. Patrick’s Day parade when the defendant yanked a gold “Add-A-Bead” necklace from around her neck. While keeping the defendant in sight she waved down a police vehicle. She pointed out the defendant, who was arrested. Four gold beads and a broken length of chain was found in the defendant’s right pants pocket.

R.S. 14:65 provides as follows:

“A. Simple robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.
B. Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.”

The record in this matter has been examined. The evidence appears to be sufficient and there are no errors patent on the face of the record.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


text:
    Phyllis Devun, Wife of/and Richard HUGHES v. Rita Erny, Wife of/and Marion F. PENDERGRAFT, Jr., d/b/a Pender-Craft Construction.
    No. CA 1754.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      Robert A. Mathis, Newman, Drolla, Mathis, Brady & Wakefield, New Orleans, for Story Development Corp.
    Matt J. Farley, Deutsch, Kerrigan & Stiles, New Orleans, for Continental Ins. Co.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dated December 2, 1983, granting Continental Insurance Company’s exception of no cause of action. From that judgment, which we reverse Story Development Corporation appeals.

Continental issued a performance bond in favor of the mortgage lender, St. Bernard Bank & Trust and Story Development Company. Continental bound itself as surety for C&C Construction Company pursuant to an April 30,1979 contract between Story and C&C. Under the contract, C&C Construction Company was responsible for:

“... curbing, grubbing, excavating, soil base course, subsurface drainage, sanitary sewerage collection system, including house connections, water distribution system, and clearing of site and grading of all lots to produce finish building sites and other work in connection therewith

The Story Park Extension subdivision was built. Pender-Craft Construction Company, as the general housing contractor, built the house at issue. Langlois Foundations, Inc., a sub-contractor poured the foundation. Mr. and Mrs. Richard Hughes bought the house, located at 2804 Legend Drive, Meraux, Louisiana from Pendercraft for $67,400.00 on January 14, 1981. On January 8,1982 the house was inspected by plaintiff’s expert, Joe W. Hughes & Sons Contractors who determined that there existed a crack in the slab which ran from the utility room through the kitchen and the den. On July 27, 1982 plaintiffs filed an action in redhibition alleging that the foundation was cracked. Various actions in recovention and third party demands were filed. In the course of the various claims filed, Story brought a third party demand against C&C Contractors, Inc. and its surety, Continental. Continental responded with the exception of no cause of action. It is alleged that the crack in the foundation is due to improper clearing of the site by C&C Contractors, specifically burying trees.

The surety agreement provided:

“AND NOW, to these presents, intervened:
CONTINENTAL INSURANCE COMPANY, a corporation existing under the laws of the State of New Hampshire and authorized to do and doing business in the State of Louisiana, represented herein by and appearing through its undersigned Agent and
Attorney-in-Fact,_, who declared:
“That it has taken full cognizance of the foregoing contract between OWNER (Story Development Company) and CONTRACTOR (C&C Contractors, Inc.), and hereby consents to the terms and conditions thereof, and binds itself, its successors and assigns, as Surety for said CONTRACTOR in the full sum of THREE HUNDRED SIXTY-THREE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($363,500.00), in favor of:
STORY DEVELOPMENT CORPORATION, the said OWNER, and ST. BERNARD BANK & TRUST COMPANY, as their respective interests may appear, for the true and faithful performance of the said contract, and the payment of all subcontractors, journeymen, cartmen, truckmen, workmen, laborers, mechanics and furnishers of materials.
“It is expressly understood and agreed that this bond is given in accordance with R.S. 9:4802 et seq., and the said Surety is liable for all obligations thereunder.
“AND, IT IS AGREED AND UNDERSTOOD that surety, in addition to the amount of the foregoing bond, shall be liable for all costs, charges, expenses and attorney’s fees incurred in any concursus or other legal proceedings made necessary by the failure of the CONTRACTOR to comply faithfully with the foregoing contract; said attorney’s fees to be fixed at five (5%) percent on the amount of the foregoing bond.
“The Surety shall not be liable under this bond to the obligees or any of them, unless the said obligees, or any of them, shall make payments to the Principal strictly in accordance with the terms of the said contract as to payments, and shall perform all the other obligations to be performed under said contract at the time and in the manner therein set forth.” (emphasis added).

The contract provides that C&C is responsible for clearing and grading the building sites and the surety agreement provides that Continental binds itself with C&C in favor of Story for “the true and faithful performance of the said contract.”

On appeal, Continental relies primarily on Ryder v. Baco Realty Co., 207 So.2d 155 (App. 1st, 1968), writs refused, 252 La. 102, 209 So.2d 37 (1968) and its progeny. In Ryder, plaintiff was an employee of the general contractor. Plaintiff was injured in the course and scope of his employment, when electricity from a nearby electric line arced, causing him to fall from the building. Plaintiff argued that the building was built too close to the electric lines. Plaintiff sued the building owner, Baco Realty and Baco filed a third-party demand against the contractor, Best Construction Company and its surety, Continental Casualty Company.

In Ryder, the First Circuit stated:

“The issue presented here is simple: Is the surety on a contractor’s bond responsible to the owner for amounts which the owner must pay for personal injuries arising out of the contractor’s negligence in constructing the building?
⅝ ¡⅜ ⅝ ⅜⅜ * sfc
Baco claims that the improper location of the building is a breach of the contract, and that any amounts which he might have to pay in tort for plaintiff’s injuries, since it results from a breach of the contract by Best, renders Continental liable under its contract of suretyship. In support of this contention, the case of Macaluso v. Thibodeaux, 232 La. 431, 94 So.2d 426 (1957) is relied on. In that case, a building which the contractor was renovating suffered certain damage as a consequence of which the building was demolished, without authorization, by the contractor, who sold the materials. The contract was thereby rendered impossible to complete. The Supreme Court found the contractor and his surety liable to plaintiff in damages in the amount of the value of the building, holding the surety on the theory that plaintiff’s loss was directly attributable to the contractor’s failure faithfully to perform his contract.
⅜! ⅝ ⅜ # ⅜ *
In so far as the contractor’s principal obligation under the contract, the “perfect and workmanlike” construction of a building, is concerned, we find that the liability of the surety is coincident with the liability of the contractor, so that, as in the Macaluso case, supra, the owner shall be made whole by either of them in the event of breach of the principal obligation. However, the claim presented here is not the same as that in the Macaluso case.” (At 157) (emphasis added).

The instant case does not involve a personal injury, but, like Macaluso, deals with the principal obligation of the contract between C&C Construction and Story Development.

Continental further argues that the bond should not be extended to cover third parties outside of the parties to the bond and contract. Story, however, who was party to the contract and on whose behalf the surety was executed, is the party bringing demand on the bond. Continental exposes the defect in its case when it states in its brief:

"... (Story) will be liable only if the original plaintiff in the redhibition claim recovers against the party who built and sold the house, who in turn recovers against Story. Story has denied liability, and asserts its claim against the principal and surety on the bond only in the alternative.” p. 12

Should the above chain of liabilities become a reality once trial is had, then it appears that Story, in whose favor the bond was made, should be able to recover against its own bond. Story’s defense to other parties may not be used by Continental as its shield from Story, as that is the whole point of pleading in the alternative.

Counsel for Story further argues that it is entitled to attorney’s fees under the bond. The provision dealing with attorney’s fees is predicated upon “... the failure of the CONTRACTOR to comply faithfully with the foregoing contract.” At this point in time, no trial has been had, no testimony has been presented, and no evidence has been adduced such that no lack of “faithful compliance” has been proven. If trial should result in such a finding, however, then it is clear that Story is entitled to attorney’s fees as fixed in the contract.

For the reasons discussed, the judgment of the district court is reversed and the ease is remanded for further proceedings.

REVERSED AND REMANDED.'


text:
    STATE of Louisiana v. Rudolph WILSON.
    No. KA 1808.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Writ Denied Oct. 5, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

      Before GARRISON, KLEES and WARD, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granted on October 19, 1983 in accordance with a 12 man jury verdict, finding the defendant, Rudolph Wilson guilty under R.S. 14:95.1, possession of a firearm by a convicted felon. On October 26, 1983, the defendant was sentenced to serve ten (10) years at hard labor in the custody of the Department of Corrections, without benefit of probation, parole, or suspension of sentence, and ordered to pay a $1,000.00 fine or serve an additional year. From that judgment, which we affirm defendant appeals.

I. Sufficiency of the Evidence

R.S. 14:95.1 provides:

“A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burglary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon.
B. Whoever if found guilty of violating the provision of this Section shall be imprisoned at hard labor for not less than three nor more than ten years without the benefit of probation, parole, or suspension of sentence and be fined, not less than one thousand dollars nor more than five thousand dollars.
C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans Parish the superintendent of police, for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.
(3) The sheriff or superintendent of police, as the ease may be, shall immediately notify the Department of Public Safety, in writing, of the issuance of each permit granted under this Section.”

The State introduced into evidence as Exhibit S-6 a certified copy of the bill of information dated March 6, 1975 charging Rudolph Wilson with “committ(ing) a battery with a dangerous weapon upon Geneva Poche” in Case No. 248-376 and a certified copy of the jury verdict dated May 2, 1975 stating “Your honor we the jurior (sic) find the defendant guilty as charge (sic)” and signed by the foreman in that same case number.

Additionally, the defendant admitted under cross-examination that he had been convicted of aggravated battery, attempted murder, and negligent homicide. (Tr. p. 33-34). He further admitted that he also has a Federal conviction on a gun-related charge, involving shooting someone in the thigh. (Tr. p. 34). Clearly there is overwhelming evidence that defendant is a convicted felon under the appropriate crimes listed in R.S. 14:95.1.

Both officers testified that the loaded gun was retrieved from under defendant’s coat, specifically the waistband of his pants. Defendant admitted that the gun was retrieved from his waistband and that he knew that he was not supposed to have a gun. (Tr. p. 34). In light of the evidence presented, the only conclusion that could be drawn is that defendant was carrying a concealed firearm and in possession of the gun. In short the evidence presented was more than sufficient to establish the elements of R.S. 14:95.1, it was overwhelming.

Defendant raises the following issues on appeal:

1. The trial court erred in denying defendant’s motion to suppress.

2. The trial court erred in denying defendant’s motion for a continuance.

3. The trial court erred in denying defendant’s motion for a mistrial.

4. The trial court erred in admitting the exhibits numbered State # 5 and State # 6.

5. The trial court erred in permitting the prosecutor to question the defendant on his prior convictions.

6. The court erred in denying defendant’s motion for a new trial.

II.Motion to Suppress

Defendant argues that the trial court erred in failing to grant its Motion to Suppress the State's exhibits numbered S-l, the Smith and Wesson .38 caliber revolver and S-2, fifteen bullets. The Motion was based on the argument that defendant was arrested without probable cause such that the subsequent search constituted an illegal search and seizure.

Officer Ronald Horst testified that he and his partner, Fred Wagner, had set up a surveillance operation at the “green” bar on the corner of Clio and Baronne Streets in New Orleans on May 17, 1983. Through binoculars, Officer Horst observed the defendant reach underneath his coat in the location of his waistband and remove the revolver. The defendant showed the gun to several men who were also standing on the corner and then replaced the revolver in the waistband underneath his coat.

At this moment in time, the officers had probable cause to believe that a crime was being committed i.e., carrying a concealed weapon. C.Cr.P. Art. 215.1 provides as follows:

“A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.
C. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”

Because probable, cause existed for the warrantless search, the evidence was not illegally seized, hence the Motion to Suppress was properly denied.

III.Continuance

Defendant argues that the trial court improperly denied his motion to continue the trial of this matter and argues that if he had been granted a continuance, he would have been able to obtain the presence of witnesses who would have been able to provide exculpatory testimony on his behalf. Prior to the date of trial, defendant had been granted four continuances. On the date of trial, October 19, 1983, counsel for defendant once again moved for a continuance, which denial is the issue presently before this court. On August 10, 1983 the court had issued subpoenas to the two witnesses, when it had also continued the trial to August 25th. On August 25th, trial was continued to October 13th and on October 13th trial was continued until October 19th.

The “motion” for continuance made on October 19th was not a motion under the Code of Criminal Procedure:

C.Cr.P. Article 707
“A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.”
******
C.Cr.P. Article 709
“A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.” (emphasis added).

The oral motion made at trial was by definition not a motion for a continuance, which must be in writing. While the trial court has the discretion to grant or deny a motion for a continuance, it does not have the discretion to determine what constitutes a motion in opposition to a definition clearly provided by the Code of Criminal Procedure. In certain extraordinary cases where defense counsel was genuinely taken by surprise, the requirement of a written motion has been waived. State v. Parsley, 369 So.2d 1292 (La.,1979). A certain informality is tolerated in criminal procedural areas due to the effects of C.Cr.P. Art. 921, which provides:

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

In the instant case, however, no substantial right is or would have been affected and no element of surprise exists.

Even if a proper written motion had been filed, however, the trial judge was well within his discretion in denying the motion. As stated in Parsley, above:

“La.Code Crim.P. art. 712 provides that a timely filed motion for continuance ‘may be granted, in the discretion of the court, in any ease if there is ground therefor.’ We have consistently held that the granting of a motion for continuance is a matter committed to the trial judge’s discretion, and that a denial of the motion will not be reversed unless an abuse of discretion is demonstrated. State v. Benson, 368 So.2d 716 (La.1979); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Johnson, 343 So.2d 155 (La.1977). However, this court will not allow the denial of a motion for continuance to stand if it is clear that the trial court exercised that discretion unreasonably. State v. Benson, supra; State v. Winston, 327 So.2d 380 (La.1976). Whether a refusal to grant a continuance was justified depends primarily on the circumstances of a particular case. State v. Winston, supra. ” (At 1294).

There exist no circumstances which would have warranted a granting of a continuance and the trial judge not only did not abuse his discretion, but also clearly acted reasonably under the circumstances of this case.'

Defendant further argues that C.Cr.P. Art. 710 requires the State to stipulate the facts required to be stated in defendant’s motion under C.Cr.P. Art. 709. C.Cr.P. Art. 710 provides:

“When a motion for a continuance is based on the absence of a material witness, and the adverse party admits that if the witness were present he would testify as stated in the motion, the court may proceed to the trial of the case. If the court is of the opinion that despite the admission, the case cannot be tried with justice to the applicant, it may require the adverse party to admit also the truth of the testimony as a condition of refusing to grant the continuance.” (emphasis added).

Defendant also relies upon State v. Boyd, 359 So.2d 931 (La.,1978) wherein the court stated:

“C.Cr.P. 710 provides that when a motion to continue is based on the absence of a material witness, it may be denied if the adverse party admits that if the witness were present he would testify as stated in the motion.” (At 936) (emphasis added).

If defendant’s argument were accepted, then in every criminal case, the defendant need only arrange to have his witnesses absent and then allege that the defendant was innocent via facts resulting in that net effect. Under defendant’s argument, the State would then be required to stipulate to the defendant’s innocence!

This argument is so blatently erroneous, so blatently frivolous, and so incredibly inane that it need not be addressed further by this court.

IV. Mistrial

After Officer Horst had testified, his partner, Officer Wagner was called to the stand. The testimony at issue is as follows:

“BY MISS BERNIE:
Q Please state your name and occupation for the record?
A Officer Fred Wagner, assigned to the special operations division of the New Orleans Police Department.
Q Were you assigned, so assigned, Officer, on May 17, 1983?
A Yes, ma’am.
Q And at that time were you working with Officer Horst?
A Yes, ma’am.
Q Would you please explain to the ladies and gentlemen of the jury the facts and circumstances surrounding that arrest?
A We had set up a surveillance mainly for narcotics. We were parked in the— BY MR. LAWRENCE:
Your Honor, I object to this at this time and I want to make a motion to this Court outside of the presence of the jury. BY THE COURT:
All right. Take the jury out.
(JURY IS REMOVED FROM THE COURTROOM)
BY THE COURT:
All right, Mr. Lawrence.
BY MR. LAWRENCE:
Your Honor, at this time I move for a mistrial based on the comment by the officer about setting up their surveillance for narcotics.
That may very well be true and a good basis for a surveillance; however, the defendant is being charged with a convicted felon in possession of a firearm. The referral to narcotics injects a reference to a crime and the evidence of which was not admissible in this case.
It was on direct examination unsolicited by the defense. I would move for a mistrial on the basis of that.
BY THE COURT:
Did the officer testify that he was sur-veiling (sic) the defendant for narcotics? BY MR. LAWRENCE:
No.
BY THE COURT:
Objection’s denied.
BY MR. LAWRENCE:
We object and move for a mistrial on this basis.
BY THE COURT:
Let the objection be noted. Bring the jury back.
(THE JURY IS RETURNED TO THE COURTROOM)
BY THE COURT:
Ladies and gentlemen, from time to time during any trial there are certain legal arguments that counsel make that are of no concern of (sic) the jurors, therefore, we excuse the jurors. You are not to pay any attention to these conferences that we have. They mean nothing as far as you’re concerned.
Also, the Court will instruct you to attach no significance whatsoever to the purpose that the officers were on the scene; that is, that they were surveiling (sic) for narcotics traffic. This has nothing to do with this case and you are to attach no weight whatsoever to it.
All right.
DIRECT-EXAMINATION RESUMED BY MISS BERNIE:
Q Officer, you were testifying as to the circumstances surrounding the arrest of the defendant. Would you please proceed?
A Yes. We had set up a surveillance, my partner and myself. We were working out of the police vehicle ... (Tr. p. 9, 10, 11).

Defendant argues that the trial court improperly denied his motion for a mistrial. C.Cr.P. Art. 770 provides:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.” (emphasis added).

The instant case is not a narcotics case and there is no allegation contained in the record that the defendant was engaged in any narcotic-related illegal activity. Additionally, a police officer is not a “court official” within the context of C.Cr.P. Art. 770:

“In a recent case, this Court restated its position that a policeman is not a ‘court official’ and therefore even if the policeman makes a reference to another crime, mistrial under La.C.Cr.P. Art. 770 is not required. State v. Carter, 412 So.2d 540 (La.1982). Instead, the proper remedy would be upon request of defendant an admonition to the jury to disregard the remark. La.C.Cr.P. Art. 771. In the instant case, defendant did not request an admonition for the first remark and refused the trial judge’s offer of an admonition for the second comment.
Furthermore, to trigger the need for an admonition the remark must refer to a crime alleged to have been committed by the defendant. Neither of the challenged comments is an unambiguous reference to crimes alleged to have been so committed. For these reasons, the trial judge did not err when he denied defendant’s motions for mistrial.” (emphasis added).

State v. Hayes, 414 So.2d 717, 721-722, (La., 1982). Accordingly, the trial court acted properly.

Defendant further argues that the trial court, erred in admitting Exhibits S-5, a Xerox copy of defendant’s fingerprint card, and S-6, a certified copy of defendant’s conviction for aggravated battery in Case # 248-376, State v. Wilson.

Turning first to exhibit S-6, it is noted that S-6 was not admitted to impeach the credibility of Mr. Wilson, but is in fact an element of the crime R.S. 14:95.1 “any person who has been convicted of ... aggravated battery ...” Additionally, on cross-examination, the defendant admitted not only to the aggravated battery charge but to three other prior felony convictions as well.

Exhibit S-5 was introduced in conjunction with the testimony of Officer Leland Comeaux, a Records Custodian and Fingerprint Expert of N.O.P.D. Officer Comeaux testified that Mr. Wilson’s fingerprints taken on the date of the arrest matched the fingerprints of a Rudolph Wilson on record with Angola State Penitentiary such that both sets of prints came from the same man. Once again this proof bears upon an essential element of the crime, indicating that the Rudolph Wilson in the present case is in fact the same person as the Rudolph Wilson who had been previously convicted. Defendant argues that the best evidence rule, more properly called the original document rule, was violated. Officer Comeaux testified that it made absolutely no difference in his analysis whether the original fingerprint card or a copy of the card was used.

In State v. Gaskin, 412 So.2d 1007, 1011, (La.,1982), the court reiterated:

“... Moreover, we have held that La. R.S. 15:436, requiring production of the best evidence within a party’s control, is to be applied sensibly and with reason. State v. Fallon, 290 So.2d 273 (La.1974). Such was clearly the case here. Additionally, we have held that absent a showing of prejudice, a conviction will not be reversed on the ground that the best evidence was not produced. State v. Bennett, 341 So.2d 847 (La.1976). No prejudice was shown here.”

Likewise, no prejudice has been shown in the instant case.

V. New Trial

Defendant argues that the trial court improperly denied his motion for a new trial. Defendant’s motion was based on the grounds that:

“1. The verdict is against the law and the evidence because: The State of Louisiana failed to prove that defendant was previously convicted for a felony wherein he was properly advised of his constitutional rights and represented by counsel.
2. Reversible error was committed during the trial which are (sic) assigned as follows: The court denied defendant’s Motion for Continuance based on the absence of essential witnesses for the defendant.”

The question of the motion for continuance has been previously discussed and is without merit.

Turning to defendant’s other ground, it should be noted that there is absolutely no evidence in the record on either legal representation during the prior conviction or defendant’s Miranda warnings in conjunction with the prior conviction. Even if that evidence was contained in the record, however, it would be of no moment. In State v. Williams, 392 So.2d 448 (La.,1980) Justice Watson, as organ of the court stated:

“The State contends that defendants are barred from a collateral attack on their prior pleas by the decision in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Lewis held that 18 U.S.C.App. Section 1202(a)(1), the federal equivalent to LSA-R.S. 14:95.1, prohibits a convicted felon from possessing a firearm even if the predicate felony is subject to collateral attack on constitutional grounds. The prior conviction of Lewis was allegedly based on an uncoun-seled guilty plea. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Lewis had served his prison term but had not been pardoned or had his conviction vacated. The United States Supreme Court relied on the legislative history which reflected: ‘ ■ ■ • an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a “valid” conviction, and not a conviction not subject to constitutional challenge, as the criterion ... ’ 445 U.S. 62, 100 S.Ct. 919, 63 L.Ed.2d 207.
LSA-R.S. 14:95.1 is also directed at ‘... any person who has been convicted of ... ’ certain offenses. As in the federal statute: ‘No modifier is present, and nothing suggests any restriction on the scope of the term “convicted”.’ 445 U.S. 60, 100 S.Ct. 918, 63 L.Ed.2d 206. One classified as a convicted felon loses his right to bear arms. State v. Clement, 368 So.2d 1037 (La.1979). Until that status is changed and the disability removed, a convicted felon can possess a gun only if: (1) ten years have passed; or (2) a special permit is granted. LSA-R.S. 14:95.1 C(l) and (2). [Compare 18 U.S.C. Section 925(c)]. The Louisiana statute is less restrictive than 18 U.S.C. App. Section 1202, which applies to all felonies, and does not provide for a prescriptive period. The Louisiana legislature, like Congress, ‘... could rationally conclude that any felony conviction, even a allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm’ 445 U.S. 66, 100 S.Ct. 921, 63 L.Ed.2d 210. LSA-R.S. 14:95.1 represents a reasonable exercise of the police power.
‘Its purpose is to limit the possession of firearms by persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity.’ State v. Amos, 343 So.2d 166 at 168 (La.1977). That threat is not lessened by a technical defect in the prior felony conviction.
State v. Martin, 382 So.2d 933 (La.1980), decided without knowledge of United States v. Lewis, supra, held that a defect in the guilty plea to the predicate felony is a defense to a charge under LSA-R.S. 14:95.1. Dicta in State v. Virgil, 390 So.2d 520 (1980) reaffirmed Martin. However, in light of the United States Supreme Court’s guidelines in Lewis, State v. Martin is overruled. A person charged under LSA-R.S. 14:95.1 cannot attack the predicate felony on collateral constitutional grounds.” (At 449-450) (emphasis added).

Accordingly, the trial court properly denied defendant’s motion for a new trial.

The record has been examined in all other aspects and there are no errors patent on the face of the record.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . The bar in question has no name and is generally referred to as the "green” bar because it is painted green.

      . The record now contains a written motion, but it is apparent not only from the minute entry, but also from both parties' briefs that at the time the defendant originally made the "motion” the motion was an oral one. It is interesting to note that while most pleadings in the record are undated, the written motion for continuance is dated October 19, 1983, the date of trial. This dated motion however, is of no avail as Art. 707 provides "shall be filed at least 7 days prior to ... trial.” The motion further contains no facts as required by Art. 709.


author: BARRY, Judge.

text:
    STATE of Louisiana v. Darryl TATE.
    No. KA-1549.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   BARRY, Judge.

Defendant pled guilty to second degree murder but reserved his right to appeal the denial of his motion to suppress identification. He claims the police used suggestive procedures and that the witness’ limited opportunity to view the perpetrator during the crime was insufficient to constitute an “independent source of identification”.

The homicide occurred about 2:20 a.m. during an armed robbery in a parking lot near S. Rampart and Calliope Streets in New Orleans. The victim, Anthony Jeffrey, was sitting in the driver’s seat of his parked car and his friend Keith Dillan was in the front passenger seat. Dillan testified he’d had some drinks but his vision was not impaired. There were street lights at intervals along the street, including one light facing directly where Jeffrey and Dil-lan were parked. Dillan testified he saw the gunman as he approached their car, and looked directly at him for a few seconds as he leaned over the driver’s seat to give him his money.

After Dillan gave the robber 40$, the gunman demanded money from Jeffrey. Instead of giving his money, Jeffrey tried to start the car in an apparent attempt to get away. The gunman shot Jéffrey in the chest and fled. Dillan escaped and called police. Jeffrey was pronounced dead at the scene.

Defendant was linked to this homicide after he was charged with the armed robbery and attempted murder of a tourist outside the French Quarter. The gun found on defendant was tested and found to be the same weapon used to shoot Jeffrey.

Defendant moved to suppress the pretrial identifications by Dillan. The motion was denied and after the first day of trial defendant pled guilty to second degree murder, reserving his right to appeal the identification issue. State v. Crosby, 338 So.2d 584 (La.1976).

At the suppression hearing Officer Adams testified that a week after the shooting he conducted a photographic lineup and showed Dillan seven mug shots, including one of the defendant taken a few days earlier. The officer did not tell Dillan the suspect’s photograph was among the seven, nor did he suggest which photograph to select. According to Adams, Dillan “positively identified a photograph of Darryl Tate as being the person who armed robbed him, attempting to rob the victim [and] who subsequently shot him to death.” Adams said the date 4/5/81 (two days before the photo display) was on defendant’s photo but he did not call the witness’ attention to it.

Dillan corroborated Adams’ testimony that he positively identified the defendant’s photograph without any influence. He testified he saw the dates on the mug shots but paid no attention to them.

A week after the photographic lineup Ronald Richard, an officer from the criminal investigation bureau, conducted a physical lineup. He brought the defendant and several “fill-ins” from the House of Detention for the lineup. Dillan was alone and viewed each man. No one spoke to Dillan during the lineup or gave him hints. After the lineup Dillan told Officer Richard he recognized the first man in the lineup (who was the defendant) as the robber/killer. Only the defendant was included in both the photographic showing and physical lineup.

Dillan testified he saw defendant’s face by the street light for several seconds while he was handing over his money; however, Dillan did not recall what the robber was wearing. Dillan said he’d had some beers that night but his vision was not affected.

In order to suppress an identification, a defendant must prove: (1) that the identification procedure was “unduly suggestive” and (2) that there was a “very substantial likelihood of irreparable misidentifieation.” Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Neslo, 433 So.2d 73 (La.1983); State v. Prudholm, 446 So.2d 729 (La.1984).

A lineup is unduly suggestive if the identification procedure displays the defendant so that the witness’ attention is focused on the defendant. State v. Nelso, supra; State v. Smith, 430 So.2d 31 (La.1983). A lineup can also be suggestive if a sufficient resemblance of physical characteristics and features of persons in the lineup does not exist to reasonably test the identification. State v. Nicholas, 397 So.2d 1308 (La.1981) quoting State v. Robinson, 386 So.2d 1374 (La.1980). Strict identity of physical characteristics among the persons depicted in the photo or physical lineup is not required. All that is required is sufficient resemblance to reasonably test the identification. State v. Smith, supra; State v. Guillot, 353 So.2d 1005 (La.1977).

Our Supreme Court has held there are “no exact detailed criteria for a legitimate photographic lineup ... The fundamental rule is that each case must be considered on a careful analysis of its own facts...” State v. Tonubbee, 420 So.2d 126, 130 (La.1982) quoting State v. Morgan, 367 So.2d 779, 783 (La.1979).

Defense counsel contends the identification procedures were suggestive because only the defendant appeared in both the physical lineup and photographic lineups. The same argument was raised in State v. Neslo, supra, where two eyewitnesses to a murder were initially shown a stack of photographs from which they each picked out several photos depicting particular facial features. The photos were used by the police artist to make a composite sketch. Later, the two witnesses were separately shown seven mug shots, and both pointed out defendant’s and another man’s photo as similar to the murderer. Later, the two witnesses viewed a physical lineup which included the defendant and six others. Again, both witnesses selected defendant and another man who greatly resembled the defendant. Despite the fact that only the defendant appeared in both the photographic and physical lineups, the Neslo court held:

The evidence does not indicate that the identification procedures were unduly suggestive. The persons in the photographic lineup sufficiently resemble the defendant to properly test the identification. Likewise, the photograph in the record of the physical lineup shows that there was no suggestiveness in the conduct of the lineup. All of the participants were adequately matched for basic physical appearance and five of the seven participants, including Neslo, appear to be very close in height. Number six, who was initially selected but not chosen after the witnesses went on stage, is a few inches taller than Neslo.

In this case each of the police officers took particular care in selecting photographs or “fill-ins” whose facial features and general physical characteristics resembled the defendant. Each officer scrupulously avoided any actions which could have influenced or even appeared to influence the identification. We find no suggestiveness or impropriety in the identification procedure.

Defendant claims the trial court erred by refusing to permit questions as to Dillan’s emotional state during the holdup. Defendant also asserts Dillan’s limited opportunity to view the gunman and his inability to give police a detailed description make his identifications unreliable. Neither contention has merit due to our determination that Dillan properly identified'the defendant in both lineups.

Although Dillan saw the defendant for only several seconds, he testified that he clearly saw defendant’s face during the robbery. His identification at both lineups occurred within two weeks of the shooting. Thus, there was adequate independent basis for identification which outweighed any suggestiveness in the lineup procedures.

The conviction and sentence are affirmed.

AFFIRMED.


text:
    Donald W. CUPIT, Jr. v. AMAX NICKEL, INC. and its Insurer, the Continental Insurance Company.
    No. CA-1913.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      Kenneth V. Ward, Jr., Metairie, for plaintiff-appellant.
    Charles R. Capdeville, Metairie, for defendants-appellees.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   BARRY, Judge.

An injured worker claims “odd lot” status and appeals the denial of additional benefits.

On June 22, 1981, 21 year old Donald Cupit, a pool worker for Amax Nickel, Inc., sustained a thermochemical burn when his left foot slipped into an electrolyte solution. Continental Insurance Company paid benefits until Cupit returned to work on September 19, 1981. A year later, September 22, 1982, the insurer reinstituted payments based on a medical reassessment and paid benefits under the Scheduled Loss Section of the Worker’s Compensation Act.

Cupit contends the trial court erred by not finding him totally or partially permanently disabled under the “odd-lot” doctrine. Lattin v. HICA Corp., 395 So.2d 690 (La.1981). He argues the trial judge ignored his and the treating physician’s testimony which established that he works in pain and defendants offered no contrary proof. He reurges his demand for penalties and attorney’s fees.

Cupit was hospitalized for eight days at Chalmette General Hospital and was transferred to Methodist Hospital for two weeks. Dr. Howes, plastic surgeon, performed debridement and grafting procedures. He testified Cupit sustained a third degree burn over the dorsal and lateral aspect of the left ankle. After discharge from the hospital (22 days post accident) Dr. Howes saw Cupit four times through September 16. On September 25, 1981 Howes advised Underwriters Adjusting Company that the wound “had completely healed ... by 9/16/81 and [Cupit] was able to return to work on 9/21/81” without permanent disability.

On May 25, 1982 (11 months post accident) Cupit experienced pain and trouble with his boot when standing for long periods. Dr. Howes’ examination revealed a hypertrophic area, the skin was thicker, and the wound was continuing to scar. That, he said, causes a problem when the burn is over a flexion area because the skin needs to move for proper function. Dr. Howes saw Cupit on March 12, 1983 and said he complained of pain and difficulty with his boot. Cupit was told to use padding in the boot and was advised he may eventually need an orthopedic shoe to relieve pressure on the scar.

Dr. Howes saw Cupit for the last time on April 16, 1983 and his evaluation and recommendation were the same. In his deposition (one week before trial) he did not recommend an orthopedic shoe, excision, regrafting or release of the scar. However, he said these were future possibilities.

Originally Dr. Howes assigned a 25% disability of the left foot and ankle and 5% total body disability. Twenty-two months later he said the foot disability was the same but added plaintiff had lost 10% of his normal range of motion. Dr. Howes attributed the disability to pain and limitation of motion from the scar and stated the disability would not decrease. He said, “If anything, I think [the disability] is going to increase, since that has been his course up to this point ...”

Dr. Howes said Cupit did not relate his pain to job activities, but added he did not know what Cupit’s work entailed. He did not feel Cupit was incapable of any type of employment.

Dr. DiVincenti, a general and thoracic surgeon, examined Cupit on October 4, 1982 (15 months post accident) at the request of the insurer. He found “the patient's main problem, at this time, is a sensitive healed burn scar ...” and “... a 5% partial permanent disability ...”

Cupit testified he returned to work only because benefits were discontinued and he had to earn a living. His work required climbing stairs and walking conveyor belts. He insisted he could not work because of foot pain and wearing any boot irritated the injury. The only solution was to work without boots. He stated that twice a day he would remove his boots, prop up his foot, and massage it. He said that he could “barely” do his job and complained of pain to his foreman, Angelo Salodino, and the company nurse. He left work early on several occasions within the first month and a half after returning (but not since) “because I worked in pain. I have to make a living.”

Cupit testified he returned to work only to make enough money to meet expenses. However, the record shows Cupit had a good attendance record and worked substantial overtime: 299.75 hours in 1982 and 78.5 hours through April, 1983.

The employer called four employees to rebut Cupit’s testimony. John Brouillette, personnel administrator, testified that after Cupit’s return in 1981, his first absences were in January, 1982 and were not related to the injury. In February, 1982 Cupit took a two week leave to care for his ill grandfather. Brouillette stated Cupit had a very good attendance record which is borne out by the “Absence record” in evidence. He occasionally missed a day but none of the records show absences related to this injury. Brouillette stated Cupit never complained of pain or having to wear a work boot.

Angelo Salodino, one of Cupit’s supervisors, testified during the first week after Cupit returned to work he complained of trouble with his boots. New boots were issued and no subsequent complaints were made. He also stated Cupit was a good worker, never complained of pain (after the initial week), and always performed his work.

Charles Holliday, supervisor of safety and security, testified that he normally received from the company nurse and supervisors all reports concerning complaints by an employee of inability to work, but never received a report on Cupit.

Gary Caro, assistant supervisor, testified if any one complains on any shift in his area he would receive a report. He received no pain complaint from Cupit or that he couldn’t work.

Joseph Miceli, a private investigator, secretly filmed Cupit one week before trial apparently giving baseball lessons to some children. The tape was shot over a 3V2 hour period and runs less than one hour. It shows Cupit walking, trotting and running without apparent difficulty and contradicts his testimony that “I can't play ball.”. This activity has no bearing on whether Cupit works in substantial pain, but does relate to his credibility.

The “odd lot” doctrine was adopted in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980) and provides that a claimant is entitled to total and permanent disability if he establishes that because of his physical impairment and other factors — mental capacity, training, education — he can perform no service other than those so limited in quality or dependability that a reasonably stable market does not exist. The “odd-lot” classification also applies to a worker who cannot return to “any gainful employment” without suffering substantial pain. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981). The “substantial pain” employee is entitled to partial disability benefits (23:1221(3)) if he is unable to perform the duties in which he was customarily engaged when injured or duties of the same or similar character for which he is fitted by training, education or experience, even if he can engage in some other work without pain. Ramsey v. Dragon Ltd., 448 So.2d 745 (La.App. 4th Cir.1984).

As to the burden of proof, this Court recently said:

A compensation claimant who alleges disability due to substantial or appreciable pain must establish that condition to a reasonable certainty and by a fair preponderance of the evidence. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980). A claimant is not disabled solely because of some residual pain or discomfort. Pain is disabling only if it is substantial. Culp v. Belden Corp., 432 So.2d 847 (La.1983). Whether a claimant has met this burden is a question of fact based on the totality of the lay and medical evidence. The trial court’s resolution has great weight and will not be disturbed absent manifest error.
Crisp v. Southern Silk Screen, Inc., 451 So.2d 1260 (La.App. 4th Cir.1984)

The time of trial is the criteria to determine the worker’s condition. Ramsey, supra.

Clearly, Dr. Howes did not feel Cupit could not engage in any employment. Nor did Dr. Howes state he could not perform his customary duties because of pain. Even though Dr. Howes was never told what his duties were, he did say Cupit did not relate pain to his work. The trial judge, while recognizing Cupit could become disabled in the future, held that on the date of trial he was neither totally nor partially disabled and denied further benefits.

The trial judge’s finding is supported by the evidence. All of the co-employees testified that Cupit never complained or missed work because of his injury. The attendance records and overtime sheets also support their testimony. Cupit did not produce testimony from co-workers or provide any evidence to establish by a fair preponderance that he is disabled. However, if his condition deteriorates, as anticipated by Dr. Howes, Cupit can seek modification of this judgment. LSA-R.S. 23:1331.

Cupit is not entitled to penalties and attorney's fees. Compensation was discontinued on September 17, 1981 based on Dr. Howes’ letter advising that Cupit could return to work. Compensation began again when Dr. Howes revised his opinion. Defendants’ actions were not arbitrary, capricious or without probable cause.

The judgment of the trial court is affirmed.

AFFIRMED.

      . Payments began September 22, 1982 but were retroactive to August 16, 1982. It was stipulated that Continental Insurance paid Cupit $7,661.00 compensation and medicals of $10,120.81.

      . 23:1221(4)(g), (o) provides:
      (4) In the following cases, the compensation shall be as follows:
      ******
      (g) For the loss of a foot, sixty-six and two-thirds per centum of wages during one hundred and twenty-five weeks.
      ******
      (o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

      . The request form for the leave is in the record and signed by Donald Cupit.


author: BARRY, Judge. REDMANN, Chief Judge,

text:
    STATE of Louisiana v. Norwood JACKSON.
    No. KA-1745.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff.
    Ralph Capitelli, Capitalli, Bencomo & Wicker, New Orleans, for defendant.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   BARRY, Judge.

A jury found Norwood Jackson guilty of simple burglary, La.R.S. 14:62, and he was sentenced as a multiple offender to five years at hard labor with credit for time served. We find error in the first of three assignments and reverse.

Defendant contends the trial judge erred by denying his motion for a mistrial when it was discovered during trial that a State witness had identified him in a one-person photographic show-up, despite prior representations of the State to the contrary. Defendant maintains the use of the one photo show-up was impermissibly suggestive, and that the State’s misrepresentation impaired counsel’s ability to prepare an adequate defense, resulting in substantial prejudice to the defendant.

Prior to trial defense counsel filed a “Motion for Bill of Particulars, Inspection and Discovery” and a “Motion to Suppress the Identification” of the witnesses. The State represented that only one of its two witnesses, Frank Braud, had identified the defendant in a photographic line-up. The State specifically denied that its other witness, Whitney Jones, participated in any identification procedure.

At trial Whitney Jones testified he had observed the defendant enter the backyard of a residence located at 1021 Bordeaux Street and then exit minutes later carrying a box of power tools. On cross-examination, it was revealed that, contrary to the earlier representation of the State, Jones had made a prior identification of the defendant from a photograph. Outside the presence of the jury, Jones testified that at a court appearance some two months earlier, an unidentified male had shown Jones a two-view mug shot of the defendant retrieved from the D.A.’s file and asked him if that photo depicted the defendant. Defendant moved for a mistrial which was denied.

The due process standard for reviewing photographic identification procedures consists of a two-part test. The court must determine whether the photographic display was impermissibly suggestive, and if so, whether the procedure created a likelihood of misidentification. State v. Prudholm, 446 So.2d 729 (La.1984); Manson v. Brathwaite 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

In the present case, the witness was shown a two-view mug shot of the defendant from the D.A.’s file. There can be little doubt that this procedure was imper-missibly suggestive. The display of a single photograph of the defendant rather than an array of photographs depicting different individuals has repeatedly been held to be improper. U.S. v. Williams, 616 F.2d 759 (USCA 5th Cir.1980); U.S. v. Cueto, 611 F.2d 1056 (USCA 5th Cir.1980); Hudson v. Blackburn, 601 F.2d 785 (USCA 5th Cir.1979).

As noted by the U.S. Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), reliability is the linchpin in determining the admissibility of identification testimony. Thus, in deciding whether to suppress an identification, the court must weigh the reliability of the identification against the corrupting influence of the suggestive identification. State v. Davis, 409 So.2d 268, 270 (La.1982); State v. Stewart, 389 So.2d 1321 (La.1980). The factors to consider in determining the reliability of an identification include the opportunity of the witness to view the defendant at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the defendant, the level of certainty demonstrated by the witness at the identification, and the length of time between the crime and the identification. Manson v. Brathwaite, supra.

Applying these factors we are unable to conclude that the identification procedure did not create a substantial likelihood of misidentification. From the in-court testimony of the witness and the in-chamber colloquy between the witness and the trial judge, we are able to ascertain the following. On October 1, 1982, the witness observed an individual he alleged to be the defendant enter the backyard at 1021 Bordeaux Street. The trial judge concluded, and we agree, that the witness had the opportunity to view the defendant over a period of minutes from a variety of views. However, the trial judge apparently did not take into consideration the fact that the witness did not at any time provide a description of the defendant, other than to state at trial that he saw him in the yard and identified him in the mug shot. He gave no detailed description of the defendant and did not otherwise attempt to show the accuracy of his observation. The witness admitted he did not know the defendant and had not seen him before his casual observation on October 1, 1982.

Furthermore, the trial judge did not ascertain the certainty of the witness’ identification at the time of the photographic show-up, but only considered the witness’ identification at trial. The trial judge did not take into account the fact that this second identification was vitiated by the fact that only two months earlier, the witness was shown a mug shot of the defendant in such a suggestive manner as to indelibly etch the defendant’s features in his mind.

Finally, and most dispositive of this issue, is the fact that the photographic identification took place some eight months after the crime. This substantial lapse of time, coupled with the relatively brief period of observation and the absence of a physical description, casts grave doubt upon the reliability of the in-court identification.

This is not a situation where the witness had the opportunity to view the defendant on a number of occasions, State v. Douglas, 389 So.2d 1263 (La.1980); State v. Johnson, 389 So.2d 1318 (La.1980); over a long period of time, State v. Prudholm, 446 So.2d 729 (La.1984); State v. Winn, 412 So.2d 1337 (La.1982); State v. Stewart, 389 So.2d 1321 (La.1980); or at a close proximity, State v. Prudholm, 446 So.2d 729 (La.1984); State v. Neslo, 433 So.2d 73 (La.1983), State v. Stewart, 389 So.2d 1321 (La.1980). Furthermore, eight months is a long time to remember a face. This length of time was acknowledged in the seminal ease of Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 383, 34 L.Ed.2d 401 (1972) in which the U.S. Supreme Court explained, that a lapse of seven months between the crime and the identification is in most cases a “seriously negative factor”. The lapse of time in this case was eight months.

Weighing these indicia of reliability against the corrupting effect of the one photograph show-up, we conclude there was a substantial likelihood of misidentifi-cation. Accordingly, the trial judge committed reversible error in admitting the identification testimony of Whitney Jones.

In connection with this same assignment of error, defendant further argues that the failure of the State to disclose the fact of defendant’s prior identification by Whitney Jones caused substantial prejudice which constitutes reversible error. We agree.

Pursuant to La.C.Cr.P. articles 716 et seq., defense counsel filed a “Motion for Bill of Particulars, Inspection and Discovery” requesting the following information: “Was the defendant identified by anyone as (sic) to be the perpetrator of the offense charged? If so, was the identification made in a line-up or by use of photographs, or any other method?” On May 24, 1983, at a joint hearing on the discovery motion and the motion to suppress, the State, after being specifically questioned on the issue, represented that its witness, Whitney Jones, had never participated in any formal identification procedure.

Trial commenced on August 3, 1983. During cross-examination, Whitney Jones testified that, contrary to the representations of the State, he had made a prior identification of the defendant from a two-view mug shot he had been shown during a court appearance some two months earlier. Defendant moved for a mistrial, arguing that his due process rights were violated because the prior identification lulled him into a misapprehension of the strength of the State’s case, and resulted in the inad-vertant revelation during cross-examination of inculpatory evidence and otherwise impaired his ability to prepare an adequate defense. The trial judge denied the motion.

The purpose behind the discovery rules of the Louisiana Code of Criminal Procedure is the elimination of unwarranted prejudice which could arise from surprise testimony. State v. Mitchell, 412 So.2d 1042 (La.1982); State v. Toomer, 395 So.2d 1320 (La.1981).

La.C.Cr.P. art. 729.5(A) provides the sanctions a court may impose when a party violates a discovery order:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed or enter such other order, other than dismissal as may be appropriate.

Although under La.C.Cr.P. art. 729.-5(A) the State’s failure to comply with discovery procedures will not automatically demand a reversal, if the defendant suffers prejudice as a result of the failure to disclose, he is entitled to a reversal. State v. Mitchell, 412 So.2d 1042 (La.1982); State v. Davis, 399 So.2d 1168 (La.1981).

Under the facts of the present case, it is clear that the State, however unintentionally, provided an inaccurate and misleading response to a specific discovery request. As a direct result, the defendant was effectively deprived of the opportunity to prepare a defense to the identification evidence. Had the defendant known of the existence of the prior identification, it is arguable that a different trial strategy would have been employed. At the very least, the defendant could have successfully attacked the identification at a pre-trial motion to suppress. Instead, the defendant was unwittingly lead into bolstering the State’s case by revealing the fact of a prior identification to the jury, a fact which did considerable prejudicial harm to his defense.

In the case of State v. Davis, 399 So.2d 1168 (La.1981), the Louisiana Supreme Court held that the State’s failure to disclose its possession of fingerprint evidence in response to defendant’s discovery motion was reversible error. In its opinion, the Court explained that as a result of the State’s nondisclosure, the defendant was denied an opportunity to prepare a defense to the State’s fingerprint evidence and was thereby deprived of a substantial right: the right to prepare a defense. The Davis case is analogous to the present situation. In this case the State’s misrepresentation effectively precluded the defendant from mounting an attack on the identification; an identification which proved to be an important link in the State’s case.

This Court cannot sanction misrepresentation, no matter how unintentional. This is especially true where the misrepresentation impinges upon a substantial right of the accused: the right to prepare a defense. Accordingly, we find that the trial judge abused his discretion in failing to grant a mistrial. State v. Mitchell, 412 So.2d 1042 (La.1982); State v. Meshell, 392 So.2d 433 (La.1980). We must reverse.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and this case is remanded to the district court for further proceedings in accordance with the law.

REVERSED:

REMANDED.

REDMANN, C.J., dissents with reasons.

REDMANN, Chief Judge,

dissenting.

The in-chambers colloquy with witness Jones included: “[By the trial judge] Q. Your identification of this man as the person who was in that back yard, how are you doing that; are you identifying him off of that picture or off of seeing him that day in the back yard? A. I’d seen him that day — I’d seen him that day in the yard and then I identified him at that picture. Q. Mr. Capitelli, if you want to ask him any questions about anything, you can. [By Mr. Capitelli] Q. That one photograph with two views is what you were talking about; that was the picture you were shown? A. Yes. Q. That’s the first time you made an identification? A. (Witness nods head affirmatively.) Q. And that was about two months ago when you came to court; is that right? A. Yeah. [By the judge] Q. My question is: Are you identifying him now, because of that picture, or because you saw him in the back yard on the day you saw him with the tools? A. I’d seen him in the back yard, I’d seen him in the side yard — I’d seen him outside in the back yard.”

The trial judge thereupon ruled: “I don’t see how even if he would have testified at the motion to suppress identification hearing, how this changes anything. He’s made a good in-court identification and I’m satisfied that the identification is not tainted in any way. He had a very good look at the defendant over a matter of minutes. He got the same from all different views, on many occasions, from the time the defendant was allegedly in the yard. I can’t see how any prejudice really attaches as a result of him having looked at the picture.”

Because the trial judge has primacy in understanding and evaluating live witness testimony, we should accept the judge’s reasonable conclusion that the witness’s words as reported in the transcript mean that the witness made his identification from seeing defendant at the time of the offense rather than from later seeing the mug shot. The witness’s saying, for example, that “the first time [he] made an identification” was when he saw the picture means, in context, that the witness first applied his independent memory of the burglar to the picture (upon seeing it), and not that he did not have a memory until he saw the picture. The witness’s testimony supports the trial judge’s conclusion that he identified defendant from independent recollection, and thus the possibility of taint from an improper pre-trial identification was excluded; State v. Johnson, 389 So.2d 1318, 1320 (La.1980).

Arguing additionally that the state’s failure to make proper discovery requires reversal, defendant cites State v. Vaccaro, 411 So.2d 415 (La.1982) (failure of the state to disclose alleged exculpatory statements); State v. Davis, 399 So.2d 1168 (La.1981) (failure to disclose an inculpatory statement used at trial); and State v. Meshell, 392 So.2d 433 (La.1980) (failure to provide defendant’s rap sheet). But our case is not like Vaccaro, where evidence material and favorable to defendant was suppressed; or Davis, where defense counsel was lulled into a misappreciation of the state’s case; or Meshell, where a crucial decision of whether to put defendant on the witness stand was affected. In our case, defense counsel would presumably have done nothing different at trial had he known of witness Jones’s having seen the mug shot, save possibly not ask about it — an insubstantial matter in view of the witness’s positive testimony of a long period of observation of defendant at the time of the crime. Under our circumstances, there is no “reasonable possibility that the constitutional error complained of might have contributed to the conviction,” State v. Gibson, 391 So.2d 421, 427 (La.1980).

      . Jones testified only that he identified the defendant at a court appearance some two months earlier. This approximate date coincides with the hearing on the Motion to Suppress at which Jones was present but did not' testify.

      . Although Jones could not name the man who asked him to identify the defendant’s mug shot, it is not disputed that the photo came from the D.A.’s file.

      . In denying the defendant’s motion for a mistrial, the trial judge stated:
      “I don’t see how even if he would have testified at the motion to suppress identification hearing, how this changes anything. He’s made a good in-court identification and I’m satisfied that the identification is not tainted in any way. He had a very good look at the defendant over a matter of minutes. He got the same from all different views on many occasions, from the time the defendant was allegedly in the yard. I can’t see how any prejudice really attaches as a result of him having looked at the picture. If he didn't I’m still not convinced that the District Attorney’s office or that any law enforcement agency was concerned in the showing of this photograph in order to taint any identification.”


author: KLEES, Judge.

text:
    STATE of Louisiana v. Stanley WELLS.
    No. KA-1744.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of La.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant Stanley Wells.
    Before GARRISON, KLEES, and WARD, JJ.
   KLEES, Judge.

On September 16, 1982, the appellant was indicted for aggravated kidnapping, aggravated rape, aggravated crime against nature, and armed robbery. He was arraigned on September 21st and pled not guilty to all counts. On June 9, 1983, a twelve-member jury found him guilty of simple kidnapping in violation of R.S. 14:45, forcible rape in violation of R.S. 14:42.1, crime against nature in violation of R.S. 14:89, and simple robbery in violation of R.S. 14:65. On September 22nd; defendant Stanley Wells waived all delays, and was sentenced to serve five years at hard labor for his R.S. 14:45 conviction, forty years at hard labor the two first years of that sentence to be without benefit of probation, parole or suspension of sentence for the R.S. 14:42.1 conviction, five years at hard labor for his R.S. 14:89 conviction, all sentences to run consecutively. The State filed a multiple bill against the appellant, and on October 17, 1983, he was found to be a double offender, his September 22nd sentences were vacated, and he was sentenced to serve one hundred and fourteen years at hard labor. His Motion for Appeal was filed on September 22, 1983. FACTS:

At trial the victim testified that on the day in question she had gone to sell plasma at the Blood Plasma Center on St. Claude Avenue and had taken a number, then sat down outside to wait her turn. The defendant approached her several times, but each time she rebuffed his advances. He left, but then returned in an old car with the inside passenger handles removed and forced her in at knifepoint. He drove her to a deserted area, threatening to kill her, and by means of threats forced her to submit to intercourse and perform oral sex. Before leaving, he relieved her of her money. She later called the Plasma Center and described to one of the workers what had happened; the Plasma Center cooperated with the police by providing a picture of one of their donors who happened to match the description given by the victim, and whom an employee had seen in the area earlier that day. The victim was able to pick the defendant from a photographic lineup, not the first time the lineup was presented to her, but on a subsequent photographic lineup using a different photograph of Wells.

ERRORS PATENT AND SUFFICIENCY OF THE EVIDENCE

A. Errors Patent

A review of the record reveals that the trial court erred in its sentencing of the appellant as a multiple offender on all four convictions he received in this ease. In State v. Sherer, 411 So.2d 1050 (La.1982), the Supreme Court held that where convictions on more than one count are entered on the same date, these convictions should be treated as one conviction when applying R.S. 15:529.1, and therefore only one of the counts may be used in the sentencing of a defendant as a multiple offender. In Sherer, the defendant was convicted on two counts of negligent homicide, and he was sentenced on only one count. The case was remanded for resentencing also because the multiple bill did not set forth which count was to be enhanced. Id. at 1057. Here, the appellant’s original sentences on all four counts were vacated and he was sentenced to serve one hundred and fourteen years at hard labor, the sentence on each count apparently being doubled as a result of the trial court’s application of the multiple offender statute to each count. Thus, as per Sherer, it appears that the trial court erred by enhancing all four convictions and imposing an illegal sentence.

A. Sufficiency of the Evidence

The evidence adduced at trial was sufficient to sustain the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

Accordingly for the reasons expressed above:

The appellant’s four convictions are hereby affirmed.

The aggregate sentence apparently imposed as to all of the counts are hereby vacated and this matter is remanded for resentencing, specifically noting that the appellant may be sentenced as a multiple offender only as to one of the four convictions.

CONVICTION AFFIRMED SENTENCES VACATED AND MATTER REMANDED FOR RESENTENCING.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Kenneth SHIELDS.
    No. KA-1145.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Maurice Hattier, Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Before BYRNES, CIACCIO, JJ., and L. JULIAN SAMUEL, J. Ad Hoc.
   CIACCIO, Judge.

An Orleans Parish grand jury indicted defendant for distribution of heroin, a violation of La.R.S. 40:966. A jury of twelve found the defendant guilty as charged. Following the appropriate legal delays the court sentenced defendant to life imprisonment.

Defendant perfected this appeal on the basis of a single assignment of error, viz.; “The statute imposes an unconstitutionally heavy penalty for distribution of heroin.” We have considered defendant’s assignment of error, and we have reviewed the record for errors patent and for sufficiency of evidence. La. Const, of 1974 Art. 1 Sec. 19 and La.C.Cr.P. Art. 920. We have found no error in the proceedings and, therefore, affirm defendant’s conviction and sentence.

On July 14, 1982, several Federal and State narcotics agents met and made plans for an undercover drug purchase from an individual in Orleans Parish named Donald Wolf. (Donald Wolf is defendant’s brother.) Special Agent Artis Wells, who has been with the Federal Drug Enforcement Agency for 10 years, went with a confidential informant to a Baronne Street address hoping to purchase heroin. Wells knocked on the door. Defendant answered the knock and Agent Wells asked him for three bags of heroin. Defendant gave Wells three aluminum foil packets for which Wells paid him $75.00. A chemist with the D.E.A. later determined that all three packets contained heroin.

At trial, defendant testified that he did not participate in the sale. He also denied having seen Agent Wells prior to trial. Defendant stated that his brother, Donald Wolf, and several family members lived at the Baronne Street apartment. Although he denied having ever seen the three packets of heroin in evidence in this case, he admitted having seen similar ones in his brother’s possession, but never at the Bar-onne Street address.

Defendant was questioned as to his criminal record: aggravated assault (with a sawed off shotgun), resisting arrest; seven months before trial defendant pleaded guilty to automobile burglary.

The defense attempted to impeach Agent Wells’s identification of the defendant by having the defendant and his brother, Donald Wolf, stand side by side. Agent Wells, however, remained certain that defendant had been his supplier, doubly certain because Donald Wolf was the subject of a separate investigation. The defense called Donald Wolf to the witness stand, but then withdrew him as a witness.

ERRORS PATENT

We have reviewed the record for any error discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.C.Cr.P. Art. 920(2). We have found none.

SUFFICIENCY OF THE EVIDENCE

Agent Wells positively identified defendant as the individual who sold him on request three bags of heroin for a total of $75.00. We find that viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found that every essential element of the offense charged had been proven beyond a reasonable doubt. This being the standard for determining the sufficiency of evidence, we find the evidence in this case sufficient to sustain defendant’s conviction. Cf. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

ASSIGNMENT OF ERROR

As his only assignment of error defendant challenges the constitutionality of the mandatory life sentence which must be imposed upon a defendant convicted of distribution of heroin. Defendant’s entire argument on this issue follows:

ARGUMENT

The Louisiana Supreme Court has consistently held valid the statute involved in the case at bar. The defendant, however, maintains that unless a statute serves a legitimate societal purpose, and that unless the penalty corresponds to similar penalties imposed for the same crime by other states, then it must allow judicial discretion in sentencing or it is violative of the eighth amendment ban on cruel and unusual punishments.

This pro forma appeal is made solely to allow the defendant to proceed immediately in federal court contesting the validity of the statute.

In this state a person convicted of distribution of heroin “shall be sentenced to life imprisonment at hard labor without benefit of probation, or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifteen thousand dollars.” La.R.S. 40:966(B)(1). The benefits of sentence commutation and parole are available under certain limited circumstances. See La. Const, of 1974 Art. 4, Section 5(E) and La.R.S.15:574.4.

Prior to 1977 La.R.S. 40:966 was silent as to an offender’s eligibility for probation, parole and suspension of sentence. In 1977, the Louisiana legislature amended the statute eliminating the availability of probation and suspension of sentence. The statute as it existed prior to 1977 was held valid, that is, not imposing cruel and unusual punishment. State v. Stetson, 317 So.2d 172 (La.1975). State v. Whitehurst, 319 So.2d 907 (La.1975); State v. Hopkins, 351 So.2d 474 (La.1977); State v. Mallery, 364 So.2d 1283 (La.1978); State v. Terrebonne, 364 So.2d 1290 (La.1978); State v. Sykes, 364 So.2d 1293 (La.1978). We have found no cases where the statute as amended, as it applied in this case, was challenged.

Defendant has not requested that his sentence be reviewed as excessive, but has chosen to attack the statute on its face. Our inquiry, therefore, is directed to a determination of whether the penalty provided for in the statute is grossly disproportionate to the offense of heroin distribution.

The Louisiana Supreme Court has termed narcotics distribution a pernicious evil which affects not only the addict, but through him the rest of society, and considers it a “grave offense of the highest rank.” State v. Terrebonne, supra. Even in dissenting in State v. Mallery, supra, Justice Tate articulated that “[t]he commercial distribution of heroin is a vicious social evil in the degradation of human lives and in the other crimes spawned by its addicts who acquire the addiction.” He went on to argue that severe penalties “are justified by the legislative purpose to deter similar offenses and to punish such perpetrators of serious social evil.” 364 So.2d 1288.

Although no sentence is per se constitutional, a reviewing court must grant substantial deference to legislative choices reflected in a state’s penal laws. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

We have found no instance where either the United States Supreme Court or the Louisiana Supreme Court has declared life imprisonment as such unconstitutional, that is, cruel and unusual punishment whenever imposed. In Louisiana, persons convicted of second degree murder, aggravated rape, and aggravated kidnapping are mandatorily sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The mandatory sentence for distribution of heroin is life imprisonment at hard labor without benefit of probation or suspension of sentence. Comparing those crimes for which life imprisonment is mandatory the court in State v. Mattery, supra, stated, “It is no defense to this prosecution that distribution of drugs is not a violent crime and consequently punishment for this offense should not be on a par with second degree murder and aggravated kidnapping. Assuming the punishments are equal, traffic in narcotics is an insidious crime which, although not necessarily violent, is surely as grave. Indeed, the effect upon society of drug traffic is pernicious and far-reaching. For each transaction in drugs breeds another and in the case of heroin the degeneracy of the victim is virtually irreversible. Compared to the effect of drug traffic on society, isolated violent crimes may well be considered the lesser of the two evils.” 364 So.2d at 1285.

In 1977 the legislature responded to the continued pervasive degeneration of society which results from narcotics trafficking by eliminating the availability of probation and suspension of sentence from the penalty provision for heroin distribution. The reasoning employed by the Louisiana Supreme Court in the above cited cases remains persuasive. We find that the mandatory penalty for heroin distribution of life imprisonment at hard labor without benefit of probation or suspension of sentence, is not cruel, unusual or excessive, and is not disproportionate to the crime involved. Defendant’s assignment of error is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . At the time of this trial, Donald Wolf was the defendant in two extant prosecutions. One month prior to this trial, Donald Wolf had been declared incompetent to stand trial.


text:
    STATE of Louisiana v. Lonnie SIMMONS.
    No. KA-1576.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Before BYRNES, CIACCIO, JJ., and JULIAN SAMUEL, J. Ad Hoc.
   CIACCIO, Judge.

Defendant, Lonnie Simmons, was charged with attempted second degree murder and a jury found him guilty as charged. R.S. 14:30.1 and 14:27. He was sentenced to serve fifty (50) years in the Department of Corrections for the conviction on the charge of attempted second degree murder, and he was sentenced to an additional two (2) years because this crime involved the use of a firearm. R.S. 14:95.2. The defendant appeals his conviction and sentence relying upon two assignments of error. We affirm the defendant’s conviction and sentence.

On March 17, 1982 the defendant, Lonnie Simmons, was living with his daughter, Wanda Palmer, and her boyfriend, Leroy Taplet, at 2222 Music Street in New Orleans, Louisiana. Ms. Palmer testified that on that date, at approximately 9:45 p.m., she arrived at her residence to find her father on the sofa in the living room. Ms. Palmer had retrieved a fan that had been discarded and she brought it home. According to Ms. Palmer her father was aggravated because he had to open the door for her after just performing the same task for Mr. Taplet. Simmons and Palmer became involved in an argument and Simmons shot Ms. Palmer three times with his .38 caliber revolver. Ms. Palmer’s story of the shooting was basically corroborated by her boyfriend.

Defendant Simmons, however, testified that he acted in self-defense. According to Simmons, Ms. Palmer was a person who drank to excess. He stated that on the night of March 17, 1982, he and his daughter became involved in an argument and she attacked him with a knife and he responded by shooting her. No knife was found at the scene.

The investigating officer testified that Simmons confessed to the shooting and the weapon used for the assault was found next to the defendant on the couch in the living room.

The defendant first requests that we review his case for errors patent on the face of the record. C.Cr.P. Art. 920. We have reviewed the record and find no such errors. Therefore, this assignment of error lacks merit.

Defendant, pro se, contends that the maximum sentence of fifty (50) years is excessive. A review of the record indicates that at the sentencing hearing the trial judge took into account both mitigating and militating factors before sentencing this defendant. C.Cr.P. Art. 894.1. The defendant argues that his age was not considered as a mitigating factor. To the contrary, the judge did consider the defendant’s age. However, he was very impressed by the .fact that this defendant “has on at least four occasions in the past ... had a gun in his possession, and has chosen to use it ... three times. He seriously injured at least two and killed one person.” [Tr 45] The judge did not feel that the defendant would respond affirmatively to probationary treatment. He further felt a custodial environment was required and that any lesser sentence would depracate the seriousness of the offense. [Tr 45-45]

Under the circumstances of this case we do not find this maximum sentence to be excessive. We also find that the trial judge complied with the sentencing guidelines provided by law. C.Cr.P. Art. 894.1. Therefore this pro se assignment of error lacks merit.

We have additionally reviewed this matter in order to determine if the evidence was sufficient to sustain the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Lynch, 436 So.2d 567 (La.1983). The totality of the evidence when viewed in the light most favorable to the prosecution satisfies this Court that any rational trier of fact could have found that the State proved the essential elements of the crime of attempted second degree murder beyond a reasonable doubt.

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

AFFIRMED.

      . Although the defendant was also charged as being a convicted felon in possession of a firearm, this charge was dismissed by the State. R.S. 14:95.2.