author: TATE, Justice. SANDERS, Chief Justice SUMMERS, Justice DENNIS, Justice

text:
    STATE of Louisiana, Respondent, v. Michael W. JACKSON, Relator.
    No. 57621.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Dissenting and Concurring Opinions Sept. 21, 1976; Nov. 11, 1976.
    Joseph R. Raggio, Baton Rouge, for respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Doug P. Moreau, Asst. Dist. Atty., for relator.
   TATE, Justice.

On the defendant Jackson’s application, we granted supervisory writs to review the trial court’s denial of his motion that a second lineup be conducted. 329 So.2d 759 (1975). (The victim had earlier identified the defendant as the offender at a first lineup.)

As a basis for his motion, the defendant avers that he has received information that a named individual (“N. C.”) was the actual perpetrator of the crime for which the defendant is charged. He suggests that, in the interests of- justice, the trial court should order a lineup at which the victim should have the opportunity for visual observation of both the defendant and N. C. in order for the victim to identify, if he can, either of the two from among the lineup as his suspected offender.

At the hearing on the motion, the defendant called a police officer as witness. Defense counsel attempted to question the police officer whether he had received information that N. C. instead of the defendant Jackson had committed the armed robbery charged. The prosecutor objected to the question on the ground that the response would be hearsay.

The trial court refused defense counsel’s request that he be permitted to continue to lay a foundation to prove that the state had received hard information that N. C. instead of Jackson had committed the offense. The court then took the matter under advisement and, at a later date, denied the motion upon its holding that an accused is never entitled to demand a lineup.

For the reasons more fully stated in State v. Boettcher, 338 So.2d 1356 (Docket No. 57,558), this day rendered, the trial court was in error in concluding that it did not possess any discretion whatsoever to grant a defendant’s request for a lineup. We there held that, while an accused has no legal or constitutional right to a lineup, upon proper showing that justice thereby will be served, the trial court may within its sound discretion grant the accused’s request for a lineup.

This showing may be met, in our opinion, by evidence that a law enforcement officer has received information not patently unreliable that a person other than the accused was the actual offender and should be viewed by the victim under non-suggestive conditions. The defendant Jackson was denied his opportunity to make this showing. (Of course, this showing also could be made by reliable evidence from non-police witnesses that the other had committed the offense charged.)

We find no merit to the state’s objection that the defendant’s question sought to educe inadmissible hearsay from the police officer. The evidence was sought, not to prove that N. C. had actually committed the crime, but only that the police witness had received reliable information to this effect—i. e., not to prove the truth of the information, but only the fact that the state through its police officer had received such information.

For purposes of a trial before the jury of the issue of Jackson’s guilt or innocence, such testimony would be irrelevant and may well be hearsay. Nevertheless, it is admissible and relevant for the limited issue before the non-jury hearing of the present pre-trial motion, just as similar types of testimony (although hearsay at the merit-trial) are admissible in the trial of probable-cause issues at non-jury hearings of pre-trial motions to suppress and at preliminary examinations.

Accordingly, the trial court erred in not permitting the defendant to prove a foundation, if any, for the proper exercise of judicial discretion to order a lineup to assure the soundness of the identification of the defendant, the sole shown basis of the charge against the defendant. We remand this case to the district court for further proceedings consistent with the views we here express.

REMANDED.

SANDERS, C. J., dissents and assigns written reasons.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents.

DENNIS, J., concurs with reasons.

SANDERS, Chief Justice

(dissenting).

I dissent for the reasons assigned by me in State v. Boettcher, No. 57,558, La., 338 So.2d 1356.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice in State v. Boettcher, La., 338 So.2d 1356 (No. 57,558 on the docket of this Court, decided September 13, 1976).

DENNIS, Justice

(concurring).

In State v. Boettcher, 338 So.2d 1356 (La. 1976) No. 57,558, we held that upon motion and a proper showing by a defendant a trial judge may order a pre-trial line-up. In the present case the defendant moved the court to order a person not a party to these proceedings to appear in a line-up with the defendant. The trial judge refused to allow the defendant to introduce evidence that the police had information that someone other than the defendant committed the offense. In accordance with our holding in Boettcher we have remanded the instant case to allow the defendant to attempt to establish a foundation for the trial judge’s exercise of his discretion to order a pre-trial line-up.

I agree with the principle and the rule announced by this Court in State v. Boettcher, supra, and with the disposition of the instant case. However, I do not understand the holding of the Court in the instant case to mean that an accused may upon request compel third persons to participate in a pre-trial line-up, without also showing there is probable cause to believe the third person committed the offense. Such an expansive interpretation would, in my view, do violence to the constitutional rights of such individuals recognized by the United States Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). See also, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Bell, 334 So.2d 385 (La. 1976). One’s person is protected by the federal and state constitutions from unreasonable seizures for investigatory purposes. United States Constitution Amendment IV; Louisiana Constitution Article I, § 5 (1974).

Generally, before a third person can be compelled to attend such a line-up, either at the request of the State or the defendant, in my opinion there must be a showing of probable cause to believe that he participated in the commission of the offense. A different standard may apply where the third person is already in legal custody on an unrelated matter, see United States v. Scarpellino, 431 F.2d 475 (8th Cir. 1970); United States v. Anderson, 406 F.2d 719 (4th Cir. 1966); United States v. Evans, 359 F.2d 776 (3d Cir. 1966); Rigney v. Hendrick, 355 F.2d 710 (3d Cir. 1965), but we need not concern ourselves with its definition in the instant case because the evidence does not indicate the person sought is in custody.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Donald WILLIAMS and Andrew A. Pointer.
    No. 57886.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5,1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Wm. L. Brockman, Asst. Dist. Atty., for plaintiff-relator.
    Olga D. Kogos, New Orleans, for defendants-respondents.
   MARCUS, Justice.

Donald Williams and Andrew A. Pointer were charged by bill of information with possession of a controlled dangerous substance, to-wit: marijuana, in violation of La.R.S. 40:966. Prior to trial, defendants filed a motion to suppress certain physical evidence seized from the apartment of Donald Williams pursuant to a search warrant. At the hearing on this motion, the sufficiency of the affidavit supporting the search warrant was argued. After taking the matter under advisement, the trial judge sustained the motion to suppress without giving reasons. We granted the application of the state for a writ of certiorari to consider the correctness of the trial judge’s ruling.

The application for the search warrant in question was supported, in essence, by the following facts attested to by Officers Willie Louis and Richard Scott. On May 20,1975, at 1:10 p. m., the police Urban Squad Office relayed by radio to Officer Louis a tip called in by a person identifying himself as an informant for Officer Louis. The informant stated that “at 2130 Whitney Avenue Apt. 2-D there was a black male by the name of Williams who was selling narcotics (Heroin, Cocaine, and Marijuana) from this apartment.” Within twenty minutes, Officer Louis arrived at the address given and filled out Field Identification Check cards on several males standing near the stairs to the apartment. He verified that one of the subjects was Donald Williams who, in fact, resided at 2130 Whitney Avenue, Apt. 2-D. Officer Louis also learned through use of the police computer that Williams and his companions had criminal records and were involved in drug traffic. During a continuing spot surveillance on the apartment, the affiants observed numerous black males enter, remain for only a few moments, and depart in a cautious manner. On one occasion, the visitors were known to Officer Louis as drug users. On another occasion, the officer noted eight different cars park at Williams’ residence during a twenty-minute interval. The occupants of each vehicle entered apartment 2-D and stayed for only three to five minutes before departing. On May 25, 1975, a group of eight males standing outside the residence were seen to disperse and walk away hurriedly when Officer Louis’ police car approached. Finally, on June 16, 1975, Officer Scott arrested one of Williams’ visitors as he attempted to evade the police on leaving the apartment. The arrested man was found in possession of marijuana.

The state contends that the trial judge erred in sustaining the defendants’ motion to suppress evidence. The state argues that the facts attested to in the affidavit supporting the search warrant adequately demonstrated probable cause to believe that illegal drugs were on the premises at 2130 Whitney Avenue, Apt. 2-D. We agree with this contention.

La.Code Crim.P. art. 162 provides in relevant part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for the issuance of the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Hightower, 272 So.2d 363 (La.1973). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of the warrant. Whitely v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Holmes, 254 La. 501, 225 So.2d 1 (1969).

The first supporting reason presented for the issuing judge’s consideration was the informant’s tip that “at 2130 Whitney Avenue Apt. 2-D there was a black male by the name of Williams who was selling narcotics (Heroin, Cocaine, and Marijuana) from this apartment.” Based largely on the “two pronged test” of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), this court has enunciated a rule concerning affidavits based solely on hearsay: (Emphasis added.) State v. Paciera, 290 So.2d 681 (La.1974). In addition to the criteria set out in Paciera, an informant’s reliability may be credited when the information given is against his penal interest, United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Moreover, the reliability of the information given may be established, even without an allegation of personal knowledge on the part of the informant, when the tip is sufficiently detailed to justify the magistrate in believing that it is based on more than casual rumor or general reputation. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.

The affidavit before us for review contains no attestation to the reliability of the informant, nor does it disclose the informant’s basis for concluding that illegal drugs were being sold at 2130 Whitney Avenue, Apt. 2-D. While the independent corroborative work by the police might be enough to establish the reliability of the informant, we are not prepared to say that the tip given was detailed enough to raise an inference that the information must have been obtained in a reliable manner. Hence, the informant’s tip alone cannot support the issuance of the search warrant.

The conclusion that the tip in this case does not meet the tests established in Aguilar and Paciera does not, however, end our inquiry into the sufficiency of the affidavit supporting the warrant. Affidavits must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Roach, 322 So.2d 222 (La.1975). The magistrate is obligated to render a judgment based on a commonsense reading of the entire affidavit. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Thus, when an informant’s statement fails to meet the “two pronged test,” the affidavit may nevertheless be sufficient if elsewhere in the application there is enough to permit “the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Hightower, 272 So.2d 363 n. 2 (1973). In Spinelli, after determining that the tip in question could not meet Aguilar standards even with independent corroboration, the United States Supreme Court went on to state:

This is not to say that the tip was so insubstantial that it could not properly have counted in the magistrate’s determination. Rather, it needed some further support.

When the Court looked to the other parts of the warrant, however, it found nothing but "innocent seeming conduct” and, although the accused’s activities might have been consistent with a gambling operation, the Court refused to base a finding of probable cause on that fact because the police surveillance reports had not disclosed an abnormal amount of such activity.

We are satisfied that the search warrant under consideration in the instant case contained, in addition to the informant’s tip, sufficient allegation of other facts gained in the course of the police surveillance to enable a neutral and detached magistrate to conclude that probable cause existed to believe that illegal drugs were present in Williams’ apartment. The affiants’ relation of the informant’s tip formed only one of nine paragraphs detailing a continuous stream of highly unusual conduct in and around apartment 2-D primarily involving an observed pattern of momentary visits. The officer swore that a group of visitors to Williams’ residence “dispersed and walked away quickly” when the police were noticed approaching. On one occasion, a visitor was apprehended and found in possession of marijuana as he attempted to evade the police immediately after leaving the apartment. The officers stated that Williams and many of those frequenting his apartment for very brief intervals were known either as being involved in drug traffic or as being drug addicts. In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the United States Supreme Court made it clear that, while reputation standing alone is insufficient to demonstrate probable cause, it is not irrelevant to a probable cause determination when supported by other facts. We are convinced that the nature and amount of abnormal activity in and around apartment 2-D coupled with the knowledge of the reputation of Williams and many of his visitors, indicated criminal rather than innocent seeming conduct. Hence, the allegations in the supporting affidavit in this case, unlike those in Spinelli, were sufficient “to ‘permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.’ ”

In reaching our conclusion, we have been conscious of the warning in Ventresca that a grudging or negative attitude by reviewing courts towards warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. Magistrates are not to be confined to niggardly limitations or by restrictions on the use of their common sense. Their determinations of probable cause should be paid great deference by reviewing courts and, although it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. State v. Nix, 327 So.2d 301 (La.1975); State v. Paciera, 290 So.2d 681 (La.1974).

Applying these principles, we find that, after a commonsense reading of the entire affidavit, the magistrate was able to make an independent judgment that probable cause existed to believe that illegal drugs were on the premises at 2130 Whitney Avenue, Apt. 2-D. We are of the opinion that the issuing judge was presented with sufficient facts and circumstances within the affiants’ knowledge and of which he had reasonably trustworthy information to warrant a man of reasonable caution to believe that an offense was being committed.

The question has also been raised as to whether the information contained in the affidavit was too stale to justify the granting of a search warrant. The last event mentioned in the affidavit occurred on June 16, 1975, but the warrant was not obtained until June 20, 1975, and it was not executed until June 26, 1975. In State v. Hightower, 272 So.2d 363 (La.1973), we held that a warrant executed within ten days after the last event reported in the supporting affidavit falls within the contemplation of La.Code Crim.P. art. 163, which allows a ten-day delay in the execution of warrants already issued. Accordingly, the information upon which the search warrant was granted was not impermissibly stale.

In sum, we find that the warrant issued in this case was founded upon probable cause and thus was validly granted. Hence, the ruling which suppressed the evidence obtained iii the execution of the warrant was in error.

DECREE

For the reasons assigned, we reverse the ruling of the trial judge which suppressed the evidence and remand this case to the Criminal District Court for the Parish of Orleans for further proceedings not inconsistent with this opinion.

APPENDIX TO THE OPINION OF THE COURT

Item No:_

Affidavit in-support of search warrant

CRIMINAL DISTRICT COURT PARISH OF ORLEANS

I 2 5 S7ATS or ifpu.t;;T.DN'Al 7

APPLICATION FOR SEARCH WARRANT

BEF0RE,ME, the undersigned Judge of the Criminal District Court, Parish of Orleans, State of Louisiana, personally came and appeared: Police Officer VJillio Louis and Police Officer Richard Scott

employed by the New Orleans Department of Police, 715 South Broad Street, New Orleans,, Louisiana,

WHO, after being duly sworn by me, deposed and said:

THAT a search warrant should be issued for the search of the following described (premises) (p&TSSM) faifhlddsc) 2130 Hh.itr.ey Avenue Apt 2-D

Municipal Number:_

Type of Occupancy (Residence) (CeSSerSe-aBn (VSÜÍX&Eg) Residence_

Structure:_Brick_

Number of Stories: 3 Stories_

Apartment Number: 2~D_

FOR the purpose of seising the following described property: Marijuana, Heroin, Opium and it a derivatives, Narcotic Administrating parapher.alia,

Amphetamines, Barbituates, Hallucinogenic Drugs, Cocaine

THE reasons and facts for the request of t3iis search warrant are:

1» On 5-20-75 at about 1:10 PM affiant Yiillic Louis, manning car 914 of the Urban Sanad, was on patrol in the Fischer Housing Project area when he was informed by

Police Radio to give Sergeant Charlas Hinton a tc3ephons call in the Urban Squad

__Office immediately. Yin on officer Louis called Sgt, Hinton he was informed by

Sgt. Hinton that an unknown nale had just called the office and stated that he

was a Confidential Informant for officer Louis and that at 2130 Vfhifcney Avenue

_ Ant 2-D there was a black male by the narw ol' Williams v.'ho was selling narcotics (Heroin, Cocaine, and Mari juana) fron this apartment.

2. ()n 5-20-75 at about 1:30 PM officer Willie Levis observed several black male3

standing near the stairs at 2i30 Whstney Avenue apt 2 — D, Officer Louis SvCippvd

the subjects and ’.frote F*I*C. cards on the following subjects: Stanley Richardson black icale 4-18-/t5 of 2020 Hendee Court parole naT.ber 72671, Donald Williams black nale 1-22-18 of 2130 Yfnitney Avenue 2-U. Richard Lee black male 3-12-51 of 2115 Hendee Court 1}-C,2?utry /«eafcori b&ckCUtó <¡Ü22Url of 2100 Thayer Street 1 — 0» Officer Louis checked the ‘subjects tlirough lí.C.I.C. and learned that the above subjects had Criminal Records and that they were involved in drug traffic»

3* On 5-21-75 officer Louis observed from 7-25 AM to 8:01 AM seven unknown black males between the ages 16 to 36 enter into and from the residence of 2130 YJhitney Avenue 2-U, each of the subjects staying from one to two minutes. Officer Louis noticed that each subject appeared nervous as he came from the residence.

4. On 3-23-75 at about 11:45 Ail officer Louis observed a black male between the age of 17 to 19 entering the apartment of 2130 Whitney Avenue 2-D. This subject came out, about three minutes later, to the’ front door of 2130 Whitney Avenue 2 — D and looked out in all direction then cautiously walked down the hall from the apartment.

5» On 5-23-75 at about 2:13 AM officer Louis observed several subjects who he knows to have used drugs in the past standing on the balcony of 2130 Whitney Avenue 2 — D in the company of Donald Williams black male 1-22-48 of 2130 YJhitney Avenue 2-D, The subjects were Stanley Richardson black male 4-18-46, Michael Brisco black male 24 of 1700 General DeGaulle 2-E, aka "Moose" black male 27 of an unknown address. Officer Louis in the past has observed needle marks (track) on the subject's forearms and the backs of their hands.

6.On 5-25-75 at 2:00 AM officer Louis observed eight unknown black males standing at 2130 YJhitney Avenue 2-D. The subjects, when they noticed the police car, immediately dispersed and each quickly walked in. different corrections.

7.On 5-31-75 from 7:10 PM to 7:31 PM officers Willie Louis and Richard Scott observed and counted eights different make and model cars to stop and park at 2130 YJhitney Avenue and each of the occupants would get out of the cars and go up to apartment 2-D. Each subject stayed from 3 to 5 minutes in the apartment.

8.From June 8 thru June 14 during their tour of duty, from 5 PM to 5 AM tour, officers Louis and Scott observed several black males and black females going in and out of apartment 2-D at 2130 YJhitney Avenue. None of these subjects stayed in the apartment for any length of time over 4 or 5 minutes.

9* On 6-16-75 at about 8:50 PM officers Stakes and Scott observed, an unknown black nale subject, later learned to be Rufus Jenkins, leave apartment 2-D at 2130 Whitney Avenue* When this subject observed the police officers he attempted to evade themand was apprehended and v/as found to be in possession of a plastic bag containing marijuana. The subject v/as booked and the marijuana was checked by the Crime Lab and found to be marijuana.

With relation to the above information and circumstances it is the belief of officers Willie Louis and Richard Scott (the affiants) that at 2130 Whitnsy Avenue 2-D that the narcotics mentioned are being concealed in this residence.

/?'/. //"y. 7ff~ 'Riohai’ti Scott, "Afi'Aant

Scorn to r.p.r) oubocribed before wo, th-;.o Y;■[- clay oí’ '/■}'" , :0~*|-.ga Orloccr.o", I/TnTcij.-.na

      . See the appendix to the opinion of this court for a copy of the affidavit in support of the search warrant.

      . We note that, since the informant’s tip was relayed to Officer Louis by the officer on duty at the police Urban Squad Office, it might be considered as double hearsay. We have been unable to find a decision of the United States Supreme Court which squarely addresses this question. Several federal circuit courts, however, have concluded that there is no prohibition to a warrant being based on double or even triple hearsay, so long as there is a substantial basis for crediting the information given at each level. United States v. Welebir, 498 F.2d 346 (4th Cir. 1974); United States v. McCoy, 478 F.2d 176 (10th Cir. 1973), cert. denied 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973); United States v. Wilson, 479 F.2d 936 (7th Cir. 1973). Where, as in the instant case, one police officer who in essence is doing no more than performing the function of answering service, relays a message to another officer, we find no infirmity in the information transmitted.

      . In Aguilar v. Texas, 378 U.S. 108 n. 1, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723 (1964), the United States Supreme Court specifically pointed out that no information other than the informant’s tip was ever brought to the attention of the issuing magistrate. It was noted that, if a surveillance had been conducted and the results properly presented to the magistrate, “this would, of course, present an entirely different case.”


author: SUMMERS, Justice. TATE, Justice CALOGERO, Justice

text:
    STATE of Louisiana v. Mike BAKER.
    No. 57758.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      Robert E. Piper, Jr., Huckaby, Piper & Brown, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   SUMMERS, Justice.

Relator, Mike Baker, was convicted after a bench trial of possession of marijuana. La.Rev.Stat. 40:966. After a sentence to pay a fine of $300 and serve two months in the parish jail, on his application we granted writs to review the conviction and sentence. La., 332 So.2d 865.

Three issues are presented for review. The first involves the trial judge’s refusal to grant relator’s motion to suppress the marijuana seized based on the contention that relator was stopped without legally sufficient cause, and the warrantless search and seizure which followed were therefore unconstitutional. Second, relator argues that the evidence did not warrant a finding that he was in constructive possession of the contraband. The third issue involves a ruling refusing to allow the testimony of a defense witness who violated a rule of sequestration. A fourth issue relating to the denial of bail has been rendered moot.

I

On October 6,1975 Officers Des Ma-rias and McGaha of the Shreveport Police Department were on routine patrol, traveling on Kennedy Drive in the vicinity of Broadway and Evers Streets in Shreveport. From a side street they heard the sound of squealing auto tires and loud exhaust noises. One of the patrolmen had a brief view of a blue Mustang as he glanced in the direction of the noise. They circled the block and returned to Kennedy entering behind the blue Mustang which had entered Kennedy in the meantime.

The police followed the Mustang as it traveled ahead of them at a speed of ten miles per hour in a twenty-five mile zone. The driver was observed to be furtively looking in his rear view mirror as the car proceeded in an erratic, swaying course ahead of the patrol car.

Under the circumstances the officers decided to stop the Mustang. They signaled the driver to stop, and when he did they parked to the rear of the Mustang, stepped out of the patrol car and relator stepped out of the Mustang. Des Marias then engaged him in conversation inquiring about the car’s title and relator’s driver’s license. While he talked to relator, Des Marias detected the odor of alcohol on his breath. In the meantime McGaha, from his position on the street near the car, could see wires dangling from beneath the dashboard, an indication that the car may have been started without a key, and could have been stolen. To obtain a better view of the ignition, he moved closer and noticed a cup of dark liquid and particles of ice which had recently been spilled on the car floor.

When the officers asked relator what he had been drinking, he replied that he had a cup of wine that morning. While the officers peered into the car, relator, according to his own testimony, said, “Hey, you want to search the car, go ahead on and search it because I ain’t got nothing to hide. You got my permission to search it.”

The officers then saw, in plain view, what appeared to be a marijuana cigarette in the console ash tray. McGaha recovered the cigarette by removing the ash tray, and beneath it found a plastic baggie of marijuana. Relator was then arrested.

Defense counsel argues that the officers had no cause to stop relator and refers to the fact that relator was not charged with any traffic violation. The State replies in brief and argues that the cumulative effect of the squealing tires and loud exhaust, relator’s unusually slow driving, his furtive glances in the rear view mirror and the erratic driving from side to side of the street furnished probable cause for the stop. Part of the duties assigned to these officers consisted of checking traffic, and this evidence warranted further inquiry. In the alternative, the State relies upon the defendant’s consent to validate the search and seizure.

When relator got out of his automobile there was no handcuffing, deceit, extended interrogation, or other coercive measures. There was no exploitation of the detention resulting from the stop. Defendant himself volunteered permission for the officers to search, and this fact is undisputed.

Therefore, the detention was not exploited in order to obtain relator’s consent. To the contrary, his consent was voluntary and unsolicited. As we held in State v. Cox, 330 So.2d 284 (La.1976), it is not necessary to inquire into the validity of the detention when it has no effect upon the volunteered, unequivocal and specific consent given without duress or coercion, actual or implied. In that circumstance, the consent is sufficient to validate a warrantless search and seizure. The facts of the instant case fall within these standards.

.II

Relator argues that the record does not support a finding that he had constructive possession of the marijuana. Such a finding, it is contended, requires proof of dominion and control of the vehicle containing the drug, together with proof of knowledge that the drug was there.

As the trial judge found, relator undoubtedly had control and dominion of the car, although, conceding that the car belonged to his brother, the control and dominion may have been temporary. Evidence of this is found in relator’s testimony that his tape player had been installed in the car but had been removed for repairs. The marijuana cigarette found in the open ash tray in plain view was further evidence to establish knowledge of the presence of contraband. Anyone driving the Mustang could hardly avoid seeing that “roach”, just as it was observed by the officer who leaned in at the car door to check the ignition and spilled cup on the floorboard.

Knowledge must invariably be proven by circumstantial evidence, and the noted facts amounted to some evidence upon which the trier of fact could reach the conclusion that relator knew the marijuana was in the car. On this review, the Court is concerned with questions of law. The finding of the trial judge on this factual issue will not be disturbed-

The controlling rule of law is well-stated in State v. Alford, 323 So.2d 788 (La.1975):

“Under our law, an individual need not personally possess a drug to violate a law against its illegal possession, because constructive possession is sufficient. But for a person to constructively possess a drug it must be subject to his dominion and control, and he must have knowledge of its existence. If the state has presented some evidence of these elements, then this Court will not reverse a trial court’s denial of defendants’ motion for a directed verdict. State v. Ford, 315 So.2d 276 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973).”

This assignment is without merit.

Ill

Prior to the commencement of trial, defense counsel moved for the sequestration of the witnesses. The motion was granted, and the witnesses present were instructed. Later it was discovered that relator’s brother, Ike Baker, had been present in the courtroom during the morning of the trial while Officer Des Marias was testifying. Ike Baker was called to testify on behalf of the defendant, and the State objected that the rule of sequestration had been violated. The objection was sustained.

In denying the witness the right to testify (apparently, according to defense brief, on the issue of ownership of the car, and, possibly, to shed some light on the presence of contraband in the vehicle) the trial judge found a violation of the rule of sequestration. He was of the opinion, moreover, that Ike Baker’s testimony would not be worthy of belief, because he denied that he was present in court during Officer Des Marias’ testimony when the evidence satisfied the judge that he was in fact in the courtroom during that time.

Whether a witness should be permitted to testify when he has violated the rule of sequestration is a matter which addresses itself to the sound discretion of the trial judge. La.Code Crim.Pro. art. 764; State v. Washington, 294 So.2d 794 (La.1974).

For the reasons assigned, the conviction and sentence are affirmed.

TATE, J., dissents and assigns reasons.

DIXON, J., dissents. The initial stop was without probable cause.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., concurs. The detention was not unlawful.

TATE, Justice

(dissenting).

I respectfully dissent.

The defendant was convicted of possession of marijuana. A marijuana roach was found in the ashtray of the vehicle belonging to the defendant’s brother and, when the ashtray was removed, some more marijuana was found hidden underneath it.

The defendant was denied the testimony of his brother.’ The defendant is accused of the “constructive” possession of the marijuana butt found in the ashtray of his brother’s automobile and of marijuana hidden underneath it. The testimony of the brother — as to the vehicle’s ownership and as to possible explanations for the presence of this contraband in his (not the defendant’s) motor vehicle — is thus of crucial importance to his defense of lack of guilty knowledge or of constructive possession of the marijuana in the automobile.

Our majority upholds the ruling of the trial court. It denied the defendant the testimony of this important witness because the witness had violated a sequestration order.

However, as held in Barnard v. Henderson, 514 F.2d 744 (CA5, 1975), a defendant is thereby denied a fair trial when a key witness on his behalf is prevented from testifying because of a technical violation of a sequestration order without shown connivance or bad-motive on the defendant’s part. This court was reversed in Barnard for blindly affording untrammelled discretion to the trial court to exclude defense witnesses under such circumstances.

The writer also has grave reservations as to the correctness of our ruling affirming the denial of the motion to suppress. The circumstances of the police stop of the defendant’s vehicle do not indicate factual cause for any reasonable belief of past or prospective law violation: That a driver proceeding at a lawful speed watches (“furtively” or otherwise) a police vehicle closely following him, does not, it appears to me, connote guilty conduct.

A search pursuant to an illegal, stop is invalid, State v. Lawson, 256 La. 471, 236 So.2d 804 (1970), as is a “consent” which is its product, State v. Lawson, cited above, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

CALOGERO, Justice

(dissenting).

The majority finds no error in the trial court’s ruling that Ike Baker, defendant Baker’s brother, could not testify for his brother because he had inadvertently been present in the courtroom in violation of the judge’s sequestration order. Although there is no question that the young man was present in the courtroom for a very short time during part of the testimony of one state witness and that his presence violated the judge’s order to have the witnesses sequestered, it is also clear that this young man was not in the courtroom at the beginning of the trial when the order was given, that he was never told about the order by his brother’s attorney or anyone else, that he was in the courtroom for only about ten minutes, that his testimony could not have been at all affected by the testimony he heard, and that neither defendant nor his counsel realized that he had entered the courtroom.

This particular witness was crucial for the defendant’s case because it was he who owned the car in which the marijuana was found which formed the basis of defendant’s prosecution. The marijuana in question was discovered by police in a bag beneath an ashtray, a place which could not be seen by the operator of the vehicle and which was discovered by officers only when they removed the entire ashtray and looked beneath it.

The sixth amendment to the United States Constitution, made applicable to the states by the fourteenth amendment, guarantees the right of a criminal defendant to compel the attendance of witnesses on his behalf, and Article I, section 16 of the Louisiana Constitution of 1974 guarantees an accused this right as well as the right to present a defense in his behalf. When a crucial defense witness has been prevented from testifying because of an inadvertent and momentary violation of a sequestration order during testimony which is in no way related to the testimony he was to offer, I believe that defendant Baker’s constitutional rights were violated at his trial, and I respectfully dissent.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Harold Joseph VINCENT.
    No. 57947.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      F. Clay Tillman, Jr., Tillman & Mitchell, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., Ted R. Broyles, First Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

A true bill was returned on September 22, 1971 by the Vernon Parish grand jury charging defendant, Harold Joseph Vincent, with the murder of Lonnie Barrow. La. Rev.Stat. 14:30. He entered a plea of not guilty and not guilty by reason of insanity, was convicted and sentenced to life imprisonment, the sentence to run consecutively to other sentences he was then serving. Thirteen assignments of error are presented in support of his appeal.

While driving near Lake Charles, Louisiana, on August 27, 1971, Lonnie Barrow picked up the defendant Vincent who was hitchhiking. Barrow drove his 1971 Ford Mustang to a cafe in Ragley, Louisiana, bought Vincent food and left him with instructions that if he remained there until he returned Barrow would drive him to De-Ridder, Louisiana. Approximately forty minutes later Barrow returned. Finding Vincent at the cafe, he picked him up for the trip to DeRidder.

As they neared DeRidder, Vincent pulled a gun on Barrow and forced him to drive east of Rosepine on “Ikes Road.” Once there, at gunpoint, Vincent made Barrow turn on a dirt road, and finally into a wooded area on an obscure logging road near a trash dump. Vincent then robbed Barrow of his wallet and car keys, made him remove his shirt and told him to see how far he could walk before he shot him. As Barrow reached a point 25 or 30 feet away, Vincent shot him twice. When Barrow fell to make Vincent believe he had been killed, Vincent walked up and shot him again.

Vincent then fled in Barrow’s car, driving to the outskirts of Chicago, Illinois. There he picked up two hitchhikers and drove to Las Cruces, New Mexico, where he was arrested on September 3, 1971 for possession of a stolen automobile, Barrow’s Mustang. He waived extradition and was returned to Vernon Parish, Louisiana, to stand trial for the murder of Lonnie Barrow.

Assignment 1

Defendant filed an application on December 6, 1971 for the appointment of a sanity commission to examine him and inquire into his present capacity to proceed and his mental condition at the time of the offense. The motion also requested permission to change defendant’s not guilty plea to not guilty and not guilty by reason of insanity.

The request to change the plea was granted but, because no showing was made in support of the request for the mental examination, the trial judge refused that request saying:

“the defendant has only recently undergone such examination in connection with charges pending against him in the Fourteenth Judicial District Court in and for the Parish of Calcasieu at Lake Charles, Louisiana, and at said hearing was found to hav.e the present capacity to proceed.”

When a defendant enters a combined plea of “not guilty and not guilty by reason of insanity” the trial judge may appoint a sanity commission. La.Code Crim.Pro. art. 650. The matter is one which rests in the court’s sound discretion, and there must be reasonable grounds to doubt the defendant’s mental capacity to proceed. La.Code Crim.Pro. art. 643.

The accused béars the burden of establishing by a clear preponderance of the evidence reasonable grounds for the judge to believe that he is mentally defective or was at the time of the offense. State v. Johnson, 249 La. 950, 975, 192 So.2d 135, 145 (1966), cert. denied, 388 U.S. 923, 87 S.Ct. 2144, 18 L.Ed.2d 1374 (1967); State v. Graves, 247 La. 683, 174 So.2d 118 (1965).

And when, as here, the matter is presented by bare allegations without supporting evidence, the exercise of discretion conferred on the trial judge will not be disturbed.

Refusal of the motion was not an abuse of discretion on the part of the trial judge under these circumstances.

Assignment 2

Notwithstanding the lack of substance in defendant’s December 6, 1971 application for appointment of a sanity commission, the trial judge, on further application, subsequently appointed a sanity commission, and a hearing was held on January 21, 1972. Defendant objected at the hearing that the experts appointed to examine the defendant did not file their reports timely within thirty days as required by Article 645 of the Code of Criminal Procedure. The objection was sustained.

Thereupon the trial judge appointed a second sanity commission, fixed a date for a hearing and extended the time for filing the report of the sanity commission. On September 8, 1972 a hearing was held at which the trial judge concluded that still another sanity commission had to be appointed.

Dr. A. T. Butterworth, the consulting psychiatrist at Louisiana State Penitentiary, was then appointed as a third sanity commission on January 30, 1973. La.Code Crim.Pro. art. 644 (1966). He reported to the trial judge more than thirty days later, on March 6,1973, that after a series of tests and several interviews, he had determined that the defendant was unable “to meet the standards of triability”. No action was taken on this report. A year later, however, during which defendant underwent treatment while serving another sentence in the State penitentiary, Dr. Butterworth reported that defendant was then able to stand trial and assist counsel in his defense. At a sanity hearing on April 5, 1974 the judge found that defendant had the capacity to proceed.

As the defense contention is understood, the finding on defendant’s mental condition was not made in accordance with the rules prescribed in the Code of Criminal Procedure. Specifically, the contention is aimed at the failure to comply with the requirement of Article 645 that “[t]he report of the sanity commission shall be filed in triplicate with the presiding judge within thirty days after the date of the order of appointment.”

While formal written extensions of time for filing the examination and report were not entered in the record, it is apparent that the delay allowed was approved by the trial judge. The time lapse between Dr. Butterworth’s appointment and the final report was also due to the series of examinations, tests and 'treatment to which defendant was subjected.

Article 645 does fix a time for the report to be filed, however, it is noted that the article also provides that “[t]he time for filing may be extended by the court.” Otherwise, the Code does not impose time limitations for the conduct of the examination, the fixing of the hearing or the determination of defendant’s mental condition. While defendant contends that there was a failure to file the report timely, he does not set forth how he was prejudiced by the untimely filing; nor does defendant negate the implication from this record that the trial judge granted additional time for the examination and the preparation and filing of the report. And defendant does not complain that copies of the reports were not furnished to him promptly when filed. Any error which occurred was therefore technical, insubstantial and harmless. La.Code Crim.Pro. art. 921.

Another objection is made under this assignment of error. Because some of the examinations and treatment to which defendant was exposed were performed by persons other than Dr. Butterworth, the appointed physician, their findings and results of their tests are said to be inadmissible as hearsay. Dr. Butterworth testified that these persons comprised his “team” and that he supervised their work and reviewed their findings.

On the basis of Article 647 of the Code of Criminal Procedure and Section 425 of Title 15 of the Revised Statutes, this Court held in State v. Forbes, 310 So.2d 569 (La.1975) that the report of the sanity commission, which these statutes make admissible in evidence,

“. . . is a reasonable exception to the hearsay rule. There is a logical basis for assuming that the report is trustworthy since it is made under the order of the court. The professionals involved in making the report do not have any interest in the case. The defendant, prosecution and the court have the right to subpoena the doctors who made the report, put them on the stand under oath, examine them and cross-examine them as to the accuracy of the report.”

Medical experts appointed by the Court are expected to avail themselves of tests and examinations performed by others in arriving at their opinions.

There is no merit to this assignment.

Assignment 3

Article 431 of the Code of Criminal Procedure provides:

“The grand jurors shall take the following oath when impaneled:
“ ‘As members of the grand jury, do you solemnly swear or affirm that you will diligently inquire into and true presentment make of all indictable offenses triable within this parish which shall be given you in charge, or which shall otherwise come to your knowledge; that you will keep secret your own counsel and that of your fellows and of the state, and will not, except when authorized by law, disclose testimony of any witness examined before you, nor disclose anything which any grand juror may have said, or how any grand juror may have voted on any matter before you; that you will not indict any person through malice, hatred, or ill will, nor fail to indict any person through fear, favor, affection, or hope of reward or gain; but in all of your indictments you will present the truth, according to the best of your skill and understanding?’
“The oath shall be read to the grand jury by the clerk, who shall then ask each juror: ‘Do you take this oath or affirmation?’
“The oath shall be administered to every grand juror appointed to fill a vacancy in the grand jury and to every grand juror who was not present at the taking of the oath by the grand jury.”

A defense motion to quash was filed in which it was alleged that

“the oath administered to the grand jurors was not that prescribed by Article 431 of the Code in that the words ‘SO HELP ME GOD’, were added thereto, thus making a belief in God the criterion for serving on said Grand Jury, contrary to constitution of the United States of America and the Louisiana Constitution. .

It is the defense contention that the oath prescribed by Article 431 is mandatory; and, therefore, it was impermissible to change the oath by adding “SO HELP ME GOD”. The motion to quash was denied and the ruling is assigned as error.

There is no showing that the grand jurors were compelled to swear to the oath with the added phrase, SO HELP ME GOD. It may be inferred that had they objected, they could have affirmed instead of swearing. The prescribed oath with the added phrase is a matter which more properly concerns the individual grand jurors. Defendant’s standing to object to the use of the phrase, so long as the oath was otherwise properly administered, is doubtful. The trial judge found the controverted phrase to be surplusage to the oath and use of it to be harmless error.

There is no merit to this bill

Assignments 4 and 11

A motion was filed to suppress defendant’s typewritten, inculpatory statement given in Las Cruces, New Mexico and a taped statement given in Vernon Parish on this return to Louisiana to stand trial. The taped statement given in Vernon Parish was never used in evidence and that issue is moot.

The statement at issue was given by the defendant after his arrest by the Las Cruc-es, New Mexico police, approximately seven days after the murder. It is objected to because the State was permitted to intro-luce uncertified copies which defendant contends are not the “best evidence.” La. R.S. 15:436. Apparently following a federal practice, the Las Cruces police retained the originals of written statements for one year only. After that time, and prior to destroying the originals, the police made microfilm copies of all statements, retaining only the microfilm.

The trial judge permitted introduction of a copy of the document made from the microfilm on the ground that a police officer testified that the copy introduced was exactly like the original statement made to him by defendant.

The ruling was correct. Where the document offered in evidence is a mechanical reproduction of the original, and is its substantial equivalent, it is admissible unless it can be shown by the defendant that its content does not accurately reflect the original. State v. Jackson, 296 So.2d 320 (La.1974); State v. St. Amand, 274 So.2d 179 (La.1973).

Another objection involves the contention that the State failed to prove the chain of custody of the copy.

The Las Cruces police officer testified in detail how the original was stored for one year; that it was thereafter microfilmed and destroyed, and how copies were made from the microfilm. While the chain of custody of the microfilm after the copy was made was incomplete, the chain of custody of the copy made from the microfilm was well supported.

Defendant’s third and last contention under these assignments of error is that the statements made in New Mexico were not free and voluntary. He testified that he was deprived of food and medical attention until he agreed to give the statement. At the hearing on this question, defendant’s testimony was refuted by two police officers who were present at the time of the interrogation. In addition, they testified that defendant had been given his Miranda warnings, and that he signed a Miranda waiver form which was introduced in evidence.

From this record it is shown that the State affirmatively proved that defendant freely and voluntarily confessed, and the demands of the law are satisfied. La.Const. art. I, § 11 (1921); La.R.S. 15:451; State v. Shelby, 308 So.2d 279 (La.1975).

Assignments 5 and 6

It is the defense contention here that the trial judge erred in allowing the jury to leave the courtroom to view decedent’s car and in denying the defense motion for a mistrial when jurors disregarded the judge’s instructions while viewing the car.

Article 762 of the Code of Criminal Procedure authorizes the trial judge to remove the trial to places within the parish other than the courthouse, in his discretion,

“(2) [t]o allow the jury or judge to view . an object which, is admissible in evidence but which is difficult to produce in court. At this view, the court shall not permit the taking of evidence except in connection with the place or object.

No abuse of the trial judge’s discretion is demonstrated here. Before the jury viewed the car, the trial judge instructed them as to their conduct at the viewing. Moreover, he said, they should consider the depreciation the ear must have undergone during the three-year interval since the offense occurred. The defense does not point out how the jurors violated the standards set forth in Article 762 or in what manner they failed to carry out the judge’s instructions.

The contention that the State failed to establish a sufficient chain of custody of the car is equally without merit. Before the jury was allowed to view the car, decedent’s father, James Barrow, testified that after his son’s murderer was arrested, the Vernon Parish Sheriff’s office turned the car over to him. Although the decedent was the owner of the car, having purchased it with money he earned, it was registered in his father’s name because decedent was only seventeen years of age. Documentary proof of ownership was entered into the record. James Barrow also testified that the car had remained in his custody since, and it was the same car which he drove to the courthouse on that day at the request of the District Attorney.

An adequate chain of custody was established. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Assignments 7 and 8

James Richman testified for the State that on August 27, 1971 he was driving on Ikes Road when he encountered Lonnie Barrow walking down the road. Barrow flagged him, and when he saw blood on Barrow’s back he stopped. When Richman attempted to relate what Barrow told him, the defense objected that it was hearsay, but the objection was overruled and Rich-man was permitted to testify.

Richman testified that Barrow asked if he would take him to a hospital. Richman agreed, let Barrow into his truck and started back to the hospital. On the way he saw people sitting on the porch of a house and obtained permission to use their phone to call an ambulance. The ambulance was summoned. The trial judge was of the opinion that Barrow’s utterances under these circumstances were part of the res gestae.

Ruby Frazier also testified for the State. She was present at her house when Rich-man stopped to summon the ambulance. Barrow was helped out of the truck, and she provided a quilt for him to lay on while awaiting the ambulance. When she was asked what Barrow said to her, the defense objected that this would be hearsay. The argument was that Barrow’s statements could not come within the res gestae exception to the hearsay rule because of the elapsed time since the shooting and because of the distance from the scene of the crime. Evidence established that Barrow walked approximately one-quarter mile from the scene of the shooting to the point where Richman picked him up. Richman then drove another quarter of a mile to the Frazier house. The objection was overruled.

The witness then testified that Barrow told her of the events leading to the shooting.

. . that he had been forced at gunpoint to drive into the woods; that he had been asked to take off his shirt; that his wallet and car keys had been taken from him; that the guy with the gun had told him to run to see how far he could go before the bullet hit him; he said that when the bullet hit him he fell, he got up and started to run again and the man shot him again, so he laid still; he wanted the man to think he was dead so he would leave him alone. And then he said the man came up to him and shot him a third time while he was laying on the ground. And he said he didn’t want to die back there where there was no one to see him or to find him; that he had to try to make it to the road so he crawled to the road and he remembered seeing a farm house and he started in that direction and the man with the pick up truck stopped and picked” him up. He described his car. He said it was a yellow Mustang with a racing stripe. He described the man, said he was average build, average height, brown hair, said he had tatoos on his hands. And then he started talking about his girl friend; he gave us his father’s phone number; he gave us the license number on his car. During this time we tried to get him to lie still, to lie quiet and rest. He said, “No, I’ve got to tell it all while I can.”

Several hours after this declaration Barrow died in the hospital after undergoing heroic surgery in an effort by the doctors to save his life.

Insofar as the testimony of Richman is concerned, the statements made by the deceased were innocuous, consisting only of Barrow’s plea to be taken to a hospital. The fact of Barrow’s wounds and hospitalization are virtually uncontested, and Rich-man’s recitation of Barrow’s conversation contained no reference to the defendant.

Ruby Frazier’s testimony is hearsay and extremely prejudicial to the defendant. It must fall within an exception to the hearsay rule to support the ruling of the trial judge.

The hearsay rule is one of the broadest in the field of evidence and yields to numerous exceptions that over the years have become as well established as the rule itself. La.R.S. 15:434 and 463. Two of these involve 1) statements of a deceased person in contemplation of death, commonly known as “dying declarations”, and 2) res gestae which is defined in our law as events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants. The circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction. La.R.S. 15:447-48.

A dying declaration is one made by a person in the immediate prospect of death and without hope of recovery. Cf. La.Code Crim.Pro. art. 482. State v. Hodgeson, 305 So.2d 421 (La.1974); State v. Jacobs, 281 So.2d 713 (La.1973); State v. Price, 192 La. 615, 188 So. 718 (1939).

Although the courts have not found it easy to determine just when a declaration is admissible as a part of the res gestae, each case depending upon its particular circumstances, the tendency is to extend rather than narrow the scope of res gestae to promote the ascertainment of truth. As a result, incidents offered as res gestae may be separated from the act by a lapse of time more or less appreciable, provided they grow out of and are in a legal sense immediately connected with the litigated act. State v. Curry, 263 La. 997, 270 So.2d 484 (1972); State v. Reese, 250 La. 151, 194 So.2d 729 (1967).

While Barrow’s declarations to Ruby Frazier as he lay mortally wounded awaiting the arrival of the ambulance may fall within the res gestae exception, they definitely fulfill the requisites of dying declarations and, as such, are admissible as exceptions to the hearsay rule. Not only were the statements made in the immediate prospect of death, Barrow having died several hours thereafter in a nearby hospital, but the dying declaration also reveals that Barrow had no hope of recovery. Ruby Frazier’s testimony makes this evident: “During this time we tried to get him to be still, to lie quiet and rest. He said, ‘No, I’ve got to tell it all while I can’.”

Assignments 9 and 13

Defendant contends that the trial judge erred in admitting photographs of the scene of the crime (assignment 9) and of the victim (assignment 13) in that no proper foundation, chain of control or possession was established.

With reference to the photographs depicting the scene of the crime, the objection is that without the testimony of the photographer to explain the location of the scene photographed the photographs were not shown to be relevant. Although the photographer did not testify, the State did call Deputy Frank Howard who testified that he supervised the taking of the pictures by the photographer, and he appears in one of the pictures. He explained the location of the scene.

It is not essential that the photographer verify the pictures to establish a proper foundation for their admission in evidence. State v. Browning, 290 So.2d 322 (La.1974); State v. Fox, 251 La. 464, 205 So.2d 42 (1967). Deputy Howard’s presence on the scene at the time of the picture-taking suffices to provide the foundation necessary for the introduction of the photographs into evidence.

Pictures of the decedent taken by William Guidry, a deputy sheriff and identification officer, are said to be inadmissible because they were not continuously in his possession and control. He identified the photographs at the trial as those he took at the hospital shortly after Barrow’s death. He developed the film and delivered the negatives to the Calcasieu sheriff’s office and turned the prints over to his supervisor. He had not again seen the photographs until the day of the trial. He stated categorically that the photographs were the ones he had taken and that they had not been altered since they were developed.

This identification of the photographs by the photographer at the trial is entirely adequate to permit them to be admitted into evidence. State v. Nance, 315 So.2d 695 (La.1975); State v. Sears, 298 So.2d 814 (La.1974).

Assignment 10

In identifying certain of the photographs taken at the scene of the crime Deputy Howard said . . that’s my picture in it — mine and Snake James— Ersel James pointing to blood stains . .” When this occurred, defense counsel moved for a mistrial which was denied. The defense maintains that Howard’s testimony voluntarily identifying the spot on the ground as a blood spot was extremely prejudicial. His testimony was, moreover, according to the defense, opinion testimony which Howard had not been qualified to express.

It was permissible for the witness to explain the actions of the subjects in the photograph. Furthermore, this Court has held that blood is familiar to everyone and expert opinion and analysis is not required to identify that substance. State v. Jones, 315 So.2d 650 (La.1975); State v. Skipper, 284 So.2d 590 (La.1973).

No prejudicial conduct resulted from this ■ ruling which made it impossible for the defendant to obtain a fair trial. To the contrary, Howard’s testimony was permissible. La.Code Crim.Pro. arts. 770, 771, 775.

Assignment 12

Reversible error is claimed by the defense because the trial judge permitted the introduction of the coroner’s report and the procés verbal of the autopsy without a proper certification and without the testimony of the coroner to verify their authenticity; and, also, because the judge permitted his law clerk to read portions of the coroner’s report and procés verbal of the autopsy to the jury.

At the trial, the District Attorney sought to introduce a copy of the coroner’s report and the procés verbal of the autopsy with leave to substitute a certified copy. Defense counsel objected because the documents were not properly certified and because the coroner’s report and procés verbal of the autopsy were made in November 1971 and were not filed with the District Attorney within ten days after the offense, as required by Article 105 of the Code of Criminal Procedure and Section 1565 of Title 33 of the Revised Statutes.

Neither the coroner’s testimony nor the certification of the coroner’s report was required to prove the victim’s death. That fact could be established by any competent evidence, and proof of deáth was made otherwise at this trial. Introduction of the coroner’s report and the copy of the procés verbal of the autopsy was merely cumulative and added little to the proof of death. The defense objection is rendered even less valid by the fact that the trial judge permitted the jury to hear only those portions of the report and procés verbal which pertained to death, the cause of death and time of death. La.Code Crim.Pro. art. 105; State v. Holmes, 258 La. 221, 245 So.2d 707 (1971).

The objection relating to the timely filing of the report and procés verbal with the District Attorney is also without merit. Article 105 of the Code of Criminal Procedure, as we said in State v. Allen, 273 So.2d 504 (La.1973), “is designed primarily to provide the flow of information needed by the office of the district attorney in cases of apparent homicide . . . Non-compliance with its provisions has no bearing upon the requirements of due process.”

Any error which occurred by the State’s failure to verify the report and the procés verbal by certification, or by the testimony of the Coroner, was not a substantial violation of a statutory or constitutional right. La.Code Crim.Pro. art. 921.

For the reasons assigned, the conviction and sentence are affirmed.

DENNIS, J., concurs, but does not agree with the characterization of the hearsay statement as res gestae or the remarks regarding extension of the scope of res ges-tae.


author: DENNIS, Justice.

text:
    Robert C. DYSON, Jr., et al. v. GULF MODULAR CORPORATION et al. Evie Lee Creel DYSON et al. v. John D. BELCHER, Jr., et al.
    No. 58180.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      John W. Anthony, Talley, Anthony, Hughes & Knight, Donald H. Lee, Seal, Lee, Branch & Brown, Bogalusa, for plaintiffs-applicants.
    Ronald J. Brumfield, James, Knight & Brumfield, Franklinton, Michael J. Paduda, Jr., Gallaspy & Paduda, Bogalusa, John J. Cooper, Christovich & Kearney, New Orlé-ans, for defendants-respondents.
   DENNIS, Justice.

These consolidated wrongful death actions were brought by the widow and children of Robert C. Dyson, Sr., a construction worker who was accidentally electrocuted on February 25, 1972, while he was engaged in the unloading and erection of a pre-fabricated home, being built for Gulf Modular Corporation on a rural site near Franklinton, Louisiana owned by Agri-Trading Corporation. The pre-fabricated components had been purchased from National Homes Corporation, a Texas corporation engaged in the manufacture and sale of pre-fabricated modular housing units. The decedent was employed by John D. Belcher, Jr., a sub-contractor for Gulf Modular, whose responsibility included assisting National Homes, and its employee, O. E. Waters, in the unloading and assembly of the pre-fabricated components at the construction site.

Prior to trial, the district court dismissed plaintiffs’ tort claims against Belcher and his liability insurer, on the ground that their liability was exclusively in workmen’s compensation. At the conclusion of trial, the district court dismissed plaintiffs’ claims against Gulf Modular ruling that it was the deceased’s “statutory employer” under La.R.S. 23:1061, and that as a consequence, its liability was exclusively in workmen’s compensation. Plaintiffs’ claims against Wayne Engerran, Agri-Trading Corporation, and Washington-St. Tammany Electric Cooperative were rejected, the trial judge having found that these defendants were not negligent. The trial judge found that the decedent’s death was occasioned by the joint negligence of O. E. Waters, National Homes Corporation’s employee, and John D. Belcher, Jr., and entered judgment in favor of the plaintiffs against Waters and National Homes, awarding the minor children of the deceased $7,500 each, awarding the major children of the deceased $5,000 each, and awarding $15,000 to Dyson’s widow. He also allowed $1,302.46 in special damages.

Defendants Waters and National Homes Corporation appealed the trial court’s decision to the First Circuit Court of Appeal, seeking exoneration from liability and alternatively urging that the damages awarded were excessive. Plaintiffs answered the appeal, reasserting their negligence claims against all defendants, and seeking an increase in the awards.

The court of appeal affirmed the judgment of the trial court insofar as it dismissed plaintiffs’ claims against John D. Belcher, Jr., and Gulf Modular, and insofar as it absolved Wayne Engerran, Agri-Trad-ing, and Washington-St. Tammany Electric Cooperative from liability for negligence. The court of appeal reversed the trial court’s judgment against defendants Waters and National Homes, and dismissed plaintiffs’ suit, finding, contrary to the findings of the trial judge, that Robert C. Dyson, Sr., had been contributorily negligent. Dyson v. Gulf Modular Corporation, 331 So.2d 543 (La.App. 1st Cir. 1976); Dyson v. Belcher, 331 So.2d 549 (La.App. 1st Cir. 1976).

We granted writs to examine whether the court of appeal properly reversed the trial court’s determination that the decedent was free of contributory negligence. 334 So.2d 429 (La.1976). Our examination of the record convinces us that the court of appeal fell into error, and, for the reasons hereinafter set forth, we reverse and remand.

When the fatal accident occurred the decedent, Dyson, and his employer, Belcher, were assisting Waters, an employee of National Homes, in removing component parts of a pre-fabricated home from the trailer in which it had been transported to the construction site for assembly. The components had been delivered in a National Homes Corporation tractor-trailer. Mr. En-gerran, Gulf Modular’s employee, had directed Waters, the operator of the tractor-trailer, to the job site. The tractor was equipped with a thirty-six to forty-foot crane, which was used to transfer the prefabricated components from the trailer to their proper location on a pre-cast concrete slab. Normally, Waters would have positioned the trailer next to the concrete slab, disengaged the tractor, and stabilized it by means of “outriggers,” so that he could operate the crane safely in the unloading operation. Early in the morning on the day of the accident, however, as the trailer was being positioned, it became mired in the mud, with its rear portion situated beneath two uninsulated transmission lines belonging to Washington-St. Tammany Electric Cooperative, Inc. One of the lines carried an electrical charge of approximately 7,600 volts. Waters uncoupled the tractor from the trailer and moved it to a position between the slab and the trailer and readied the crane for the unloading operation.

After Belcher and Dyson arrived at the job site, a discussion was held between Belcher and Waters, and perhaps Engerran, as to whether the unloading could begin or whether they should get a tractor or bulldozer to move the trailer to a more convenient spot. Though there was evidence Dyson was hard of hearing, and the record is unclear whether he participated in, or listened to this discussion, the court of appeal concluded that he did hear the discussion, and that the presence of the electrical line was mentioned. Even so, the record suggests that Dyson played no part in electing to unload the trailer from where it was, beneath the high voltage line.

No attempt was made by those in charge at the job site to have the power in the line shut off, to insulate the line, as might have been done, according to the testimony of the defendants’ expert witness, by means of a “rubber snake” insulator, or to provide Dyson with insulated gloves.

Belcher instructed Dyson to climb to the top of the trailer with him. It was their responsibility to attach a steel cable, extending from the end of the crane, by means of a “Y”-shaped bridle attached to the end of the cable to the components so that Waters, who operated the crane, could lift the pre-fabricated units out of the trailer and transfer them to the slab. One unit was removed successfully and placed on the slab. As Dyson held the cable taut and maneuvered the bridle into position so that Belcher could attach it to a second component, he was electrocuted, and Belcher was hurled from the trailer by the electric shock.

The record is unclear as to exactly how close the boom of the crane was to the transmission line, though the evidence indicates it was less than ten feet from the line. However, neither the trial court nor the court of appeal found that the crane’s boom touched the power line. Rather, the facts adduced suggest that the electric current passed from the transmission line to the steel cable, and down the cable to the men. Though the trial judge, after hearing all the evidence, was unable to determine “with certainty if the cable did or did not come in direct contact with the power line,” he observed that “[i]t does appear from the testimony, however, that the electricity arked [sic]” from the power line to the cable. The trial court also found that no witness testified he saw the cable come into contact with the power line. The trial judge was unwilling to conclude as a matter of fact that Dyson pulled the cable into contact with the power line, and thereby caused his own death. As we read his opinion, the trial judge found it more probable than not that the electricity jumped or arced from the transmission line to the cable being held in a stationary position at that time by Dyson.

The trial court found defendants Waters and Belcher negligent jointly for “setting up the dangerous situation by placing the trailer so close to the power line.” Of course, the tort claims against Belcher were dismissed because the plaintiffs’ recovery against that defendant would be limited to workmen’s compensation benefits. The trial judge further specifically found Dyson free of contributory negligence, concluding that the defendants failed to establish by a preponderance of the evidence that Dyson’s conduct was negligent, as required by Louisiana law. McInnis v. Fireman’s Fund Ins. Co., 322 So.2d 155 (La.1975); Ginlee v. Helg, 251 La. 261, 203 So.2d 174 (1967). The trial judge observed that working in the vicinity of high voltage electrical wires is not per se contributory negligence, nor is it an assumption of the risk. Harper v. New Orleans Public Service, Inc., 300 So.2d 546 (La. App. 4th Cir. 1974); Barrois v. Service Drayage Company, 250 So.2d 135 (La.App. 4th Cir. 1971).

The First Circuit Court of Appeal rejected the finding of the trial court that Dyson was free of contributory negligence. The appellate court, relying on what is considered “unrebutted testimony of the only expert witness to testify in this cause,” rejected the conclusion that the electricity arced from the transmission line to the cable, and instead decided, not unreasonably, that Dyson, in handling the bridle with insufficient care, caused the cable to come in contact with the power line. Direct contact must have occurred, in the court’s view, because the expert testimony of a mechanical and electrical engineer, was that, under normal conditions, electricity would not arc more than one-quarter to one-half an inch from a line carrying a charge of 7,600 volts.

We conclude, however, the court of appeal fell into error in finding the expert witness’s testimony “unrebutted.” His own testimony on cross-examination indicated that factors such as weather, lightning, soil conditions and switching surges could have an effect on the likelihood of arcing. Several witnesses testified that the ground was wet, and the atmosphere foggy. Furthermore, switching surges, according to the expert’s own testimony, are not an extraordinary occurrence — though he opined that such an occurrence at the precise moment Dyson was electrocuted, while not impossible, would be “highly improbable.” Furthermore, the testimony of eye-witnesses Waters and Engerran supports the conclusion that arcing did occur. Each claimed to have seen arcing, describing it as a “ball of fire,” and one describing a streak of blue light eight to sixteen inches long.

In Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), we set forth the standards of appellate review of facts in civil cases as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

The principal error of the court of appeal was in failing to apply these well settled principles. An appellate court is simply not free to substitute its own version of the facts, however reasonable it may be, for that found by the trial court, unless the lower court committed manifest error by finding facts not reasonably supported by credible evidence in the record. Canter v. Koehring Company, supra; Arabie v. Travelers Insurance Company, 325 So.2d 340 (La.App. 3d Cir. 1976); State Through the Department of Highways v. Smith, 324 So.2d 852 (La.App. 3d Cir. 1976); Landry v. City of Lafayette, 324 So.2d 550 (La.App. 3d Cir. 1975); Hoover v. Beatty, 323 So.2d 490 (La.App. 1st Cir. 1975); Francis v. Gerlach Meat Company, Inc., 319 So.2d 534 (La.App. 2d Cir. 1975); Dupre v. South Central Bell Telephone Company, 318 So.2d 145 (La.App. 3d Cir. 1975); Hampton v. State Farm Mutual Automobile Ins. Co., 317 So.2d 15 (La.App. 3d Cir. 1975); Aetna Life & Cas. Co. v. Finley’s Sporting Goods, Inc., 306 So.2d 383 (La.App. 3d Cir. 1975).

In this case the finding of the trial judge that the electricity arced is supported by the testimony of witnesses whom he found to be credible. Although the trier of fact was required to give due consideration to the contradictory expert testimony, under the circumstances of this case he was not compelled to place more credence in it than the lay testimony. After all, the laymen, who were eye-witnesses to the electrocution, testified to what they observed under the actual conditions present at the time of the accident. The expert witness, although eminently qualified in his field, never visited the scene of the accident or inspected the high-power line which caused Dyson’s death. Instead, he was placed in the position of attempting to reconstruct solely from the photographs and the lawyers’ hypothetical questions, what could or could not have occurred with regard to the electricity flowing from the power line located upon a rural homesite near Franklin-ton on the day of the accident. The expert’s own testimony, in fact, is subject to the interpretation that the electricity could have jumped from the power line to the cable without any act of carelessness on the employee’s part.

Additionally, we must disagree with the court of appeal’s assertion that, whenever one knowingly works in close proximity to high voltage power lines and commits an act which may be characterized as a “participating factor” in bringing himself into contact with the electricity, “then his action is deemed to be negligent and he is barred from recovery.” 331 So.2d at 547. First, the rule that it is not per se contributory negligence for a person to work in close proximity to power lines would be eviscerated if a corollary rule were imposed that whenever a person’s own actions bring him in contact with the wires he is ipso facto negligent. Furthermore, as we perceive the question of negligence, the determinative issue is always one of reasonableness or duty — i. e., did the party’s conduct conform to the standard of care that would be exercised by a reasonable man; or did the conduct breach a duty imposed upon the party to protect against the particular risk from which the accident resulted. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Tri-State Insurance Co. v. Tidewater Trailer Mfg. Co., 312 So.2d 353 (La. App. 2d Cir. 1975); Page v. Green, 306 So.2d 847 (La.App. 2d Cir. 1975); Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc., 34 La.L.Rev. 1 (1972).

Finally, the trial court’s finding of negligence on the part of Belcher and Waters is supportable by the evidence in the record. The testimony, while somewhat imprecise, indicates that the crane was set up so that the boom and cable were dangerously close to the high voltage line. Applicable federal regulations promulgated pursuant to the Occupational Safety and Health Act, 29 U.S.C. § 655, et seq., prohibit operation of a crane of the type in question within ten feet of uninsulated high power lines. 29 C.F.R. § 1910.180(J) (effective August 27, 1971). Though violation of this regulation does not constitute negligence per se, the trial court properly could consider this regulation in weighing the defendants’ negligence. See Burley v. Louisiana Power & Light Co., 319 So.2d 334 (La. 1975). None of the available precautions mentioned earlier in this opinion were taken by the men who were responsible for the conditions under Which Dyson was required to work. "

For the reasons assigned the judgment of the court of appeal insofar as it overturned the trial judge’s determination of O. E. Waters’ and National Homes Corporation’s liability, is reversed and the trial court’s judgment is reinstated. In all other respects the judgment of the court of appeal is affirmed. The cause is remanded to the court of appeal for consideration of the issues raised by the parties herein as to quantum.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

       One is Robert C. Dyson, Jr., Edward Dyson, Richard C. Dyson, Jimmy Ray Dyson, Earl Dyson, and Robert C. Dyson, Jr., as Administrator and Tutor of Fred Dyson, Joseph Dyson, Neva Lee Dyson, Anthony Dyson and Norma Gayle Dyson v. Gulf Modular Corporation, John D. Belcher, Jr., O. E. Waters, National Homes Corporation, Wayne Engerran, Agri-Trading Corporation, Inc., Fidelity & Casualty Co. of New York, and Washington-St. Tammany Electric Cooperative, Inc.; the other is Evie Lee Creel Dyson, Individually and as Administratrix and Natural Tutrix of the Minors, Fred Dyson, Joseph Dyson, Anthony Dyson, Neva Lee Dyson and Norma Gayle Dyson v. John D. Belcher, Jr., Agri-Trading Corporation, Inc., Gulf Modular Corporation, National Homes Corporation, Wayne Engerran, Fidelity & Casualty Co. of New York, and Washington-St. Tammany Electric Cooperative, Inc.


author: PER CURIAM. SUMMERS, Justice

text:
    STATE of Louisiana v. Jewel WILLIS.
    No. 57793.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Dissenting Opinion Nov. 11, 1976.
    Charles E. McConnell, McConnell & McConnell, Springfield, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James S. Harris, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

SUMMERS, J., dissents and assigns reasons.

DIXON, J., concurs.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned in my dissenting opinion in State v. Hills, La., 337 So.2d 512.


author: DENNIS, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. William WINGERTER and Elizabeth Wingerter.
    No. 58094.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Dissenting Opinion Nov. 22, 1976.

      Ronald S. Ruiz, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendants William and Elizabeth Win-gerter were charged by bill of information with simple burglary in violation of La.R.S. 14:62. Defendants were tried jointly on November 25, 1975. Elizabeth Wingerter was found guilty as charged. William Win-gerter was found guilty of attempted simple burglary, a responsive verdict. Subsequently Elizabeth Wingerter was sentenced to serve six years at hard labor. A bill of information was filed by the district attorney’s office charging William Wingerter as a quadruple offender pursuant to La.R.S. 15:529.1. The court found him guilty as charged and sentenced him to serve thirty years at hard labor.

On appeal defendants assert six assignments of error, two of which we find to present reversible merit.

During voir dire examination of prospective jurors the assistant district attorney was allowed, over defendants’ objection, to address the jury as follows:

“BY [ASSISTANT DISTRICT ATTORNEY]:
“There’s a presumption in the law, in addition to the fact that these two people are presumed innocent, as you well know, just like any other defendant that’s come into a court of law. Side by side with that in our law there’s a presumption in our law which says a person who is found in possession of property recently stolen —O.K.—in the unexplained possession that person is presumed to be a thief.. Alright, the person who is found in possession of property, and that property is proved to have been recently stolen, and that person cannot explain why he or she has that property, then that person is believed or presumed to be the thief. That presumption, ladies and gentlemen is just as strong — just as strong as the presumption that these two people are innocent. Under our Louisiana law, an outgrowth of that presumption has been the presumption that a person who is found in possession of property that has been recently taken in a burglary, that person and they don’t explain, it’s unexplained, that person, whether it be he or she is presumed to be the burglar. O.K. It’s an outgrowth of the law itself, something that has come down- from our courts, and, it’s very important, you can see in this trial, a person that’s found in the possession of property, and that property is shown to have been taken in a burglary, stolen in a burglary — and that person doesn’t explain how he or she has that property — where they got it, then you can presume as a juror that that person whether it be he or she was the burglar — actually burglarized the house and took the property. Does everyone understand that? It’s extremely important.”

At the close of the evidence, over defendants’ objection, the trial judge gave the jury the following instruction:

“There are several presumptions in the law of Louisiana, found in Article 432, among of which are in the words of the statute, as follows:
“ ‘A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence, such is the presumption is that the defendant is presumed innocent; that the person in the unexplained possession of property recently stolen is the thief.’ In construing this presumption, the Louisiana Supreme Court, as the State had charged, in these words, ‘there are certain presumptions in effect on the State, one of which is if a person in the unexplained possession of recently stolen property is presumed to be the thief.’
“If you find that this property was stolen in the burglary, then the unexplained possession of this property created a presumption that the possessor is guilty of the burglary.”

For the reasons this day assigned in State v. Searle, 339 So.2d 1194 (La.1976) the assistant district attorney’s remarks and the jury instructions not only exceeded that authorized by statute but also were unconstitutional in that they required the jury to draw an inference, i. e., that the defendants committed all essential elements of the crime of burglary, which reasonable minds could not infer beyond a reasonable doubt solely from the defendants’ unexplained possession of property stolen in the burglary. Additionally, the assistant district attorney’s remarks constituted reversible error because a criminal presumption against the defendant relating to an essential element of the crime charged can never be “as strong as” the presumption of innocence which the prosecution is required to overcome by proof beyond a reasonable doubt. La.Const.1974, Art. I, § 16; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A presumption or inference against the defendant arising out of the exclusive and unexplained possession of recently stolen property, even if properly established, cannot shift the ultimate burden of persuasion upon an essential element of the crime to the defendant. La.Const.1974, Art. I, §§ 2, 13, 16; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

For the foregoing reasons, the convictions and sentences of the defendants are reversed and their case remanded for new trial or further proceedings consistent with the views expressed herein.

Reversed and remanded for new trial.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, C. J., dissents and will assign written reasons.

SANDERS, Chief Justice

(dissenting).

I dissent for the reasons assigned in State v. Searle, La., 339 So.2d 1194 (1976).


author: DIXON, Justice. SUMMERS, Justice SANDERS, Chief Justice

text:
    James A. MOREAU v. Richard A. TONRY et al.
    Nos. 58791, 58792.
    Supreme Court of Louisiana.
    Oct. 22, 1976.

      T. M. McBride, III, Chalmette, Martzell & Montero, John R. Martzell, New Orleans, for plaintiff-applicant.
    Gilbert V. Andry, III, Sidney Provensal, Jr., New Orleans, Luke A. Petrovich, Buras, Gibson Tucker, Jr., New Orleans, for defendants-respondents.
   DIXON, Justice.

In this election contest the Court of Appeal reversed the district' court and annulled the election, vacating the certification of defendant Tonry, the Democratic nominee for Congress, leaving the nominee to be named by .the appropriate Democratic Committee.

The factual findings to support the action of the Court of Appeal are: forty-three forged signatures on the precinct register and three, hundred fifteen more votés cast on the voting machines than signatures on the precinct registers (out of a total of almost one hundred thousand votes). (The trial court had discounted the effect of such “irregularities” because, among other reasons, it found only minimal differences between the number of voters on the poll lists and the number of votes cast on the machines). The Court of Appeal found that “no inference can be made that these illegal votes were cast for Tonry.”

Nothing has been proved to us to compel a different conclusion.

The statutory rule in Louisiana is that an election may be upset only if the one contesting the election can show that “but for irregularities or fraud he would have been nominated . . . ” (R.S. 18:364(B)).

The plaintiff Moreau argues that if the number of “irregularities” exceed the difference between the candidates, the outcome of the election cannot be determined. This has never been the law. If the candidate cannot prove he would have been elected “but for irregularities or fraud,” our jurisprudence refers to an alternative: if the court finds the proven frauds and irregularities are of such a serious nature that the voters have been deprived of the free expression of their will, the election will be nullified.

“. . . For this Court to render such a drastic order, there must be a clear showing that a course of fraudulent conduct was employed which effectually prevented the electors from expressing their will.” Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292 (1957).

No case has been called to our attention (and we know of none) where an election has been upset because of serious and pervasive irregularities when the evidence falls short of proving that “but for” the irregularities, the one contesting the election would have won.

The solution adopted by the Court of Appeal is innovative, and not necessarily productive of fair elections. The candidates are removed from the reach of the lawful election machinery, even though neither has been found responsible for fraud and irregularity, and neither can be held the winner “but for” the irregular votes. As stated in Landry v. Ozenne, 194 La. 853, 195 So. 14 (1940):

“. . . If this were permitted it is easy to see that in every case in which a candidate was defeated by a small margin of the votes, two elections would inevitably be held — one at the polls and the other in the courts. . . ” 195 So. 14, 23.

Law is derived from human experience over a long enough time to give validity to that experience. Fraud and illegality in elections are not to be condoned. However, we find it significant that in the long history of election contests in this State, although recognizing that there might be an election which should be upset for widespread fraud which cannot be proved to supply the winning margin, this court has consistently disallowed an election contest where the claims are similar to those of this plaintiff. See Lewis v. Democratic Executive Committee, supra.

The irregularities found by the Court of Appeal are not so pervasive that the election must be nullified.

Therefore, the judgment of the Court of Appeal is reversed, and the judgment of the district court, dismissing plaintiff’s suit, is reinstated; the stay order previously issued in this case is hereby annulled and recalled.

SANDERS, C. J., dissents and assigns written reasons.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

I subscribe to the opinion of the Court of Appeal, 338 So.2d 791. On the facts found by that court the judgment nullifying the election is correct. Without setting forth why, this Court holds that the irregularities found by the Court of Appeal are not so pervasive that the election must be nullified. The carefully drawn unanimous opinion of the Court of Appeal refutes this conclusion in a nine-judge review. As Justice Dixon said on another occasion, these facts demonstrate

“This Court can and should annul elections when the irregularity or illegality permeates the entire election, or when there is an irregularity which makes it impossible to determine which candidate the people lawfully elected.” (emphasis added). LaCaze v. Johnson, 310 So.2d 86 (La.1974)

Under the facts of this case, that principle is abrogated. This Court’s opinion leaves open a situation in which widespread practices of fraud and irregularities provide no remedy unless the candidate can show that the practice deprives him of the election. Such a ruling under the facts of this case disregards the elaborate statutory procedure for contesting elections and decrees that no remedy is available in a most objectionable situation where the will of the people is in fact frustrated.

I respectfully dissent.

SANDERS, Chief Justice

(dissenting).

Election frauds and irregularities are difficult to prove because of their clandestine nature and the limited time available to assemble evidence. Despite the difficulty of legal proof, however, the reviewing judges in both lower courts found frauds and irregularities in the present case.

The applicable rule, reiterated by this Court in several decisions, is as follows:

“[I]f the Court finds the proven frauds and irregularities are of such a serious nature as to deprive the voters of the free expression of their will, it will decree the nullity of the entire election . . .”
See Garrison v. Connick, La., 291 So.2d 778 (1974); Dowling v. Orleans Parish Democratic Committee, 235 La. 62, 102 So.2d 755 (1958); Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292 (1957).

I subscribe to the opinion of the Court of Appeal that the present case falls within the rule. See, La.App., 338 So.2d 791 (1976). As found by the Court of Appeal, the frauds and irregularities included forgery, multiple voting, voting in the name of deceased persons, and the voting of persons without supporting precinct registers. '

These frauds and irregularities were both systematic and flagrant. They infected far more votes than the vote margin between the two competing candidates. This means that the voters have been deprived of the free expression of their will, because the outcome of the election cannot be determined.

As the Court of Appeal aptly stated:

“These fraudulent practices cannot be condoned under any circumstances and must be ferreted out if we are to insure that the free and honest expression of the will of the electorate is reflected in the democratic process.”

For the reasons assigned, I respectfully dissent.