SUMMERS, Justice.
On August 12, 1976 the Orleans Parish Grand Jury returned an indictment charging that on August 1, 1976 Terry L. Kelly committed second-degree murder of Josephine Gregory. La.Rev.Stat. 14:30.1. Defendant Kelly was tried, convicted and sentenced to life imprisonment, without eligibility for parole, probation or suspension of sentence for forty years. The following assignments of error are urged on this appeal.
The assignments of error have been renumbered to present a proper numerical sequence.
Assignment 1: Defendant, as an indigent, applied for counsel and the trial judge appointed counsel on August 23, 1976. This appointment was vacated on August 27, 1976 and Jerry D. Williamson, Esquire, was appointed to represent the defendant. Appointed counsel thereafter filed a number of pretrial motions on behalf of defendant. After hearings on these motions in which defense counsel was partially successful, the case was tried before a jury on January 5 and 6, 1977, resulting in a verdict of guilty as charged. Defendant was sentenced on January 21, 1977, at which time a motion for appeal was filed. The transcript of the trial proceedings was completed on June 2, 1977. Shortly thereafter, on July 8, 1977, the trial judge vacated the appointment of trial counsel Williamson and appointed William J. O'Hara III, Esquire, and the Loyola Law School Clinic to represent defendant in all further proceedings.
On August 9, 1977 a student practitioner with the law school clinic filed assignments of errors alleging that the trial judge improperly denied the defense motions to suppress evidence and to suppress identification. In addition it was alleged that the trial judge erred in permitting the jury to view the State's exhibits 3, 6, 7, 8, 10, 28 and 31. A designation of those portions of the record applicable to these assignments of error was also filed at the same time. Thereafter, on October 27, 1977, the appeal was lodged in this Court.
Then, on November 3, 1977 the trial judge vacated the appointment of William J. O'Hara III, Esquire, and the Loyola Law School Clinic, and substituted Horace P. Rowley III, Esquire, as counsel for defendant. On November 14, 1977 Rowley filed a motion in the trial court to supplement the record in order to include a transcription of the voir dire examination of prospective witnesses, closing arguments of counsel, the instructions to the jury and the sentencing proceedings. In conjunction with this motion defense counsel filed an amended designation of the record which had the effect of requiring all portions of the record not transcribed and filed to be lodged in this Court with those portions of the record already filed.
In denying this motion the trial judge was of the opinion that a perusal of the stenographic notes disclosed that no objections were made to any ruling in the proceedings which defendant requested transcribed. The practice in his court was to transcribe for appellate purposes only the objections of counsel and applicable testimony and/or relevant colloquy of the proceeding. In his view, to produce frivolous transcripts would cause a backlog in his court where the volume of appeals was great.
From this ruling, defense counsel sought review in this Court where the motion was denied on December 22, 1977. This Court was of the opinion that the showing made did not warrant the granting of the motion "at that time". Defense and State briefs were filed thereafter, and when the case came for hearing on oral argument the motion to supplement the record was granted, allowing time for supplemental briefs and permitting the defense to prepare new assignments of error.
The argument made in support of this first assignment of error is that the student practitioner was without authority to file assignments of error or designate the record required on appeal, unless the document was also signed by a supervising attorney admitted to the practice of law.
Rule XX of this Court's Rules permits limited participation of eligible law students in trial court activities when the programs are sponsored and supervised by the law school. Section 6 of this Rule permits "Preparation of briefs, abstracts and other documents to be filed in appellate courts of this state," by eligible law students, "but such documents must be signed by the supervising lawyer."
While it is obvious that there was a lack of compliance with the Rule and that the assignments of error and designation of the record, signed only by the student practitioner, were improperly filed in this case, the irregularity has been fully corrected. Defense counsel on this appeal, who was not present at the trial, has been furnished with a complete record. He has reviewed this record and prepared assignments of error which he considers worthy of consideration on appeal. We accept these assignments as controlling on this appeal.
Assignment 2: About seven o'clock on the evening of August 1, 1976, Josephine Gregory, the 69-year-old victim in this case, was brutally stabbed thirteen times with a butcher knife. Neighbors heard her screams for help as she staggered to her front porch where she slumped on a couch and died.
Two of her neighbors Richard and Sheila Keller testified they saw defendant Kelly enter the victim's house shortly before the incident. They saw him leave through the front door and saw the victim stagger onto the front porch thereafter. They supplied the police with a description of Kelly and pointed out the direction he took in leaving the scene. Julie Watts was leaving a friend's house across the street as defendant walked away from the victim's house. She testified that, although she did not see his face, she saw defendant leave the scene of the crime and was able to give the police a description of his clothing. A search of the area followed.
Within minutes the police arrested the defendant a few blocks from the scene of the crime. His clothes and build matched the descriptions the police had obtained from the witnesses. At the time, defendant had removed his bloodstained shirt and was washing it with a hose. Blood was also present under his fingernails and shoes. There were scratches on his face. The police advised defendant that he was under investigation for attempted murder, and his Miranda rights were recited after he was handcuffed and placed in the police car.
The police drove defendant back to the scene of the crime where he was immediately identified by the three witnesses. He was then driven to the central lockup where he was booked for murder.
The principal question posed by this assignment is whether the trial judge erred by admitting testimony of the identification at the scene of the crime.
A motion to suppress identification consisted of a conclusory allegation that the in-field identification of defendant was suggestive, and the further allegation that the identification was inadmissible because defendant was not then represented by counsel. At the hearing on this motion the arresting officer testified that when he returned to the scene with the defendant, Richard and Sheila Keller and Julie Watts were brought to the police car one at a time, where defendant sat handcuffed. About three other suspects of similar descriptions were lined up outside the police cars. Richard Keller was asked if he recognized any of these suspects and replied that he did not. He was then asked if the individual in the police car was the person he saw go into and leave the victim's house. Keller identified the defendant positively as the individual he saw. Later Keller was driven to the police station to give a statement. While there he was shown a photograph and said he recognized it as a photograph of the defendant. When asked if any suggestions were made in an attempt to influence his identification, he said no such attempt was made. He further testified that he had seen defendant on numerous occasions in the past and that defendant had been a neighbor of his prior to this offense.
Sheila Keller followed the same routine, except when she went to the car she identified defendant without being asked if any of the other suspects could be identified as the person she saw enter and leave the house. She too had known the defendant prior to this offense when he lived with his cousin in a house to the rear of the Keller house.
When Julie Watts was brought to the car she was asked if she recognized the pants worn by defendant to be those worn by the individual who left the scene of the killing. She recognized the pants to be the same. She also recognized the shirt then in the possession of the police as the shirt worn by the person she saw leaving the scene of the crime.
On this evidence the trial judge denied the motion to suppress identification.
A one-on-one in-field identification is permissible where it is closely associated in point of time with the criminal transaction and where the accused is returned to the scene of the crime for an on-the-spot identification. Prompt confrontations promote fairness by assuring reliability and the expeditious release of innocent suspects. State v. Collins, 350 So.2d 590 (La. 1977); State v. Maduell, 326 So.2d 820 (La. 1976).
No indication of impermissible suggestion or the exertion of undue influence to compel an identification appears in this record. To the contrary, the in-field identifications were made within minutes after the killing. The Kellers, as identifying witnesses, had ample opportunity to view and recognize the defendant. Although Julie Watts only saw defendant's back as he walked away from the scene of the crime, his distinctive clothing enabled her to positively identify his clothing when he was returned to the scene.
In-court identifications by the Kellers also had a source independent of the in-field identification. Hence that in-court identification was admissible even if the in-field identification had been impermissibly suggestive. Each of them had seen defendant on numerous occasions while he lived as their neighbor for several months prior to August 1, 1976. On some occasions during that time defendant stopped and talked to Sheila Keller while she was chatting with the victim on her porch.
On many occasions this court has held that a person accused of a crime is not entitled to counsel at a lineup prior to indictment. See State v. Fields, 342 So.2d 624 (La. 1977) and cases cited there. The allegation of the motion to suppress identification, that defendant was not represented by counsel at the in-field lineup, is therefore without merit.
This assignment has no merit.
Assignment 3: In brief defense counsel asserts that at the trial the clerk improperly called prospective jurors in the order in which their names appeared on the petit jury venire sheet compiled by the jury commission. To support this assertion counsel refers to the jury list in the record containing names of the jurors and check marks in columns. No explanation of this list is furnished. While this evidence does not preponderately support counsel's claim, the record was supplemented with a transcript of the voir dire. By this transcript counsel's factual assertion is verified.
The case of State v. Hoffman, 345 So.2d 1 (La. 1977), recognizes that a majority of the judges of the Criminal District Court for the parish of Orleans selected prospective jurors for voir dire examination in the order in which they appeared on the petit jury venire sheet. In the Hoffman case this practice was held to be contrary to Article 784 of the Code of Criminal Procedure in effect at the time. When the instant case was tried in January 1977 that article required that "In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court." However, the Hoffman decision, rendered on April 26, 1977, interpreting the same provision, determined that the interests of the administration of justice would best be served by giving that decision prospective application only, confining its effect to those cases wherein a jury panel is selected after finality of that opinion. Cases already submitted to this Court for decision were also to be controlled by the Hoffman decision. In effect the Hoffman decision approved the practice of calling prospective jurors in the order in which their names appeared on the petit jury venire list in cases where the jury was selected prior to April 26, 1977, condemning the practice in subsequent cases only.
Selection of the jury panel in the instant case occurred on January 5, 1977, more than three months before the April 26, 1977 decision in Hoffman. The instant case was not filed in this Court until October 27, 1977; it had not, therefore, already been submitted to this Court for decision at the time of the Hoffman decision.
This assignment is without merit.
Assignment 4: At the trial the prosecution exercised all twelve peremptory challenges, ten challenges were against black and two were against white jurors. Although no objection was made to these peremptory challenges at the time, the defense contends that it was error for the trial judge to permit them.
Permitting peremptory challenges of a racial group as in this instance, it is contended, amounts to invidious discrimination and a denial of the accused's constitutional right to a trial by an impartial jury representing a cross section of the community.
Aside from the fact that no objection was made at the trial to the State's exercise of its peremptory challenges, La. Code Crim.Pro. art. 841, no attempt was made to introduce evidence to show any historical pattern of exclusion of black jurors in this district or in this division of court. There is, therefore, no merit to this assignment.
Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), announced the proposition that absent a showing of purposeful discrimination by a historical pattern of exclusion of an identifiable class, the courts will not inquire into the motive of the State in exercising its peremptory challenges in a particular case. Thus, the mere circumstance that the State has used its peremptory challenges to strike qualified members of the defendant's race does not constitute a denial of equal protection.
According to the defense argument, by implication the decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), modified the rule of Swain v. Alabama in cases where the prosecution has peremptorily challenged a large percentage of a racial group. In that situation, it is contended, the Taylor case places the burden upon the prosecution to prove that its official acts were not the result of unconstitutional racial discrimination. The argument is not well-founded.
On a number of occasions since the decision in Taylor v. Louisiana, this Court has reaffirmed and applied the rule of Swain v. Alabama. State v. Bias, 354 So.2d 1330 (La. 1978); State v. Rhodes, 351 So.2d 103 (La. 1977); State v. Bennett, 341 So.2d 847 (La. 1977); State v. Haynes, 339 So.2d 328 (La. 1976); State v. Reed, 324 So.2d 373 (La. 1975). In our view the decision in Taylor v. Louisiana does not modify the rule of Swain v. Alabama, as defendant contends. Swain v. Alabama is applicable to the case at bar.
Assignments 5, 6 and 7: In order to avoid the testimony of a medical expert relative to the cause of the victim's death, defense counsel offered to stipulate to the cause of death. The State rejected the offer, and the doctor's testimony was received. Thereafter, five photographs were introduced by the State over defense objection. It is contended that because defendants offered to stipulate to the cause of death the photographs introduced for that purpose were gruesome and served only to inflame the jury to the prejudice of the defendant.
One of the photographs depicts the face of the victim showing bruises and lacerations. Another depicts the victim's bruised hand. A bed splattered with blood is shown in a third. These photographs are not gruesome and are incapable of inflaming the emotions of an observer to any appreciable extent. The bruises and lacerations on the face and hands of the victim are not major wounds, and the blood on the bed appears only as a black spot in that black and white photograph.
The two remaining photographs, however, are gruesome. One is of the upper torso of the victim showing at least six knife wounds while the other is a photograph of the victim as she lay dead on a couch on her porch after succumbing to the knife wounds. Her clothes and legs contain large blood stains. Although he recognized that these photographs are gruesome, the trial judge admitted them into evidence on the ground that their probative value outweighed their prejudicial effect. The photographs were properly admitted.
As a general rule determining the proper use of photographs at trial is largely within the sound discretion of the trial judge who can decide best whether they serve a proper place in the jury's enlightenment. His ruling in this respect will not be disturbed in the absence of an abuse of discretion. State v. Sawyer, 350 So.2d 611 (La. 1977); State v. Barber, 271 So.2d 853 (La. 1973); State v. Giles, 253 La. 533, 218 So.2d 585 (1969).
Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. State v. Johnson, 198 La. 195, 3 So.2d 556 (1941). On this principle this Court has held that photographs, even if gory, are admissible if they shed light on any issue. State v. Frezal, 278 So.2d 64 (La. 1973); State v. Hamilton, 249 La. 392, 187 So.2d 417 (1966); State v. Scott, 198 La. 162, 3 So.2d 545 (1941).
The ultimate test to be applied before a gruesome photograph can be admitted into evidence is whether the probative value of the photograph outweighs its probable inflammatory effect. The evidence, of course, must also be relevant for some purpose. And a balance must be struck between the photographs's probative value and its tendency to overwhelm reason and to associate the accused with the atrocity without sufficient evidence. State v. Smith, 327 So.2d 355 (La. 1976).
These photographs helped to establish the cause of death, the extent of the struggle, and the amount of blood the wounded victim lost. Because of this the photographs linked the defendant and his bloodstained clothing to the victim's struggle and death. These two photographs, therefore, had probative value, which, when considered with the other evidence in the case, outweighed their inflammatory effect. There were no eyewitnesses to the actual killing; and the burden of proof, imposed upon the State to prove the killing beyond a reasonable doubt by circumstantial evidence, required a showing that that defendant was involved in the killing by facts other than his entry into and departure from the victim's house. These photographs were part of the tangible circumstantial evidence which supplied that connection. They were essential to the State's case.
The defense argument that reference to these photographs in the prosecutor's closing argument compounded their inflammatory effect is not properly before this Court. No objection was made to the State's closing argument at the trial. La.Rev.Stat. art. 841.
Assignment 7: A report of the victim's blood type was prepared by a medical technologist who did not testify. However, the medical doctor who did testify identified the signature on the report to be that of the technologist. No objection was made to the doctor's testimony concerning the report. When the report was later introduced in evidence, defense counsel stated there was no objection to its introduction. The defense argument that it was improperly admitted is therefore without merit.
Assignments 8 and 9: Prior to trial defendant moved that the court order the prosecution to furnish to him in advance of trial a copy of all information, data and computer printouts pertaining to the prior voting record of each and every prospective juror. The trial judge denied this motion.
At the voir dire examination, defense counsel asserts in brief, that he was denied the right to examine prospective jurors relative to their previous voting record in the trial of cases. There is, however, no clear showing that such a right was denied or, if it was, that an objection was made to such a ruling.
There is no constitutional or statutory law which specifically requires the State to disclose the contents of these voting lists. The defendant may obtain the same information by voir dire examination of the prospective jurors. State v. Holmes, 347 So.2d 221 (La. 1977); State v. Singleton, 352 So.2d 191 (La. 1977). Here defendant's failure to establish that he was deprived of the right to inquire on voir dire into the voting record of prospective jurors, and his failure to object to the alleged deprivation, indicates there was no undue limitation of the right to full voir dire examination. These assignments are therefore without merit.
For the reasons assigned, the conviction and sentence are affirmed.
TATE, J., concurs and assigns reasons.
CALOGERO, J., concurs and assigns reasons.
DENNIS, J., concurs and assigns reasons.