text:
    STATE of Louisiana v. Phillip SCHAMBURGE, Jr.
    No. 58732.
    Supreme Court of Louisiana.
    April 11, 1977.

      James A. Gray, II, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Doug P. Moreau, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SANDERS, Chief Justice.

The State charged Phillip Schamburge, Jr., with armed robbery, a violation of LSA-R.S. 14:64. After trial, the jury found the defendant guilty. The State filed a bill of information charging defendant with being an habitual offender. The trial judge found the defendant to be a second offender and sentenced him to thirty-five years imprisonment.

Defendant appeals his convictions and sentence, relying upon five assignments of error.

The armed robbery occurred at approximately 1:30 a. m., on the morning of March 21, 1976, when Phillip Schamburge, Jr., and an accomplice, Lester Sims, entered the Stop & Go convenience store in Baton Rouge. Schamburge was armed with a sawed-off shotgun. He approached the clerk and indicated that he wanted the money in the register by pointing the shotgun alternately at the cash register and then at the clerk. The clerk handed Scham-burge fifty to sixty dollars from the register. Sims and Schamburge then moved toward the door to leave the store.

When they reached the door, Sergeant Robert Wayne Cupit of the Baton Rouge Police Department, who had been patrolling in the vicinity, drove up to the store intending to make a purchase. As he stepped out of his patrol car, he encountered the robbers leaving the store. Before Sergeant Cupit realized that a robbery was in progress, Schamburge pulled the shotgun from behind his leg and aimed it at him. The officer was able to grab the shotgun, train his own revolver on Schamburge, and thus disarm that robber. The officer having subdued Schamburge, ordered him to take a position against the police car. However, as Sergeant Cupit turned aside to prevent the other robber from getting away, Schamburge escaped. He later turned himself in to the police.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1 defendant complains that he was not given proper “Article 768 notice” that the State intended to use certain of defendant’s incul-patory statements made after arrest. Relying upon State v. Sneed, La., 316 So.2d 372 (1976), the defendant specifically contends: that the notice given did not indicate who the police officers were, or where the statements were made; that the wording of the notice was ambiguous; that the notice did not inform him of the exact nature of the inculpatory statements, or of the number of statements that the State intended to use.

Defendant’s contention is not properly before us. When the statements were introduced into evidence, he failed to object on the basis that the requisite notice was not given. LSA-C.Cr.P. Art. 841. Defendant first complained of deficiencies in the notice after the close of the State’s case when he filed his motion for a directed verdict. The complaint was untimely.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, defendant complains of the involuntariness of his three oral inculpatory statements. He alleges that a police officer made threats to his mother regarding a “dead or alive bulletin” being issued. He argues that the threats coupled with his crying during the first statement, his not wanting to sign anything until he saw an attorney, and there being no testimony by the first officers who took him into custody is evidence that the statements were not freely and voluntarily made.

Defendant’s mother testified that Sergeant Guidry visited her home and stated that a “dead or alive bulletin” was being issued; that if Guidry had been the officer who confronted defendant at the convenience store, he would have killed Scham-burge; that defendant was lucky to be alive; and that if defendant was found in the streets, he would be killed.

Sergeant Guidry denied making these statements to defendant’s mother. Assuming, however, that her testimony is correct, the conversation has no bearing on the vol-untariness of defendant’s statements because the threats were never communicated to the defendant. Uncommunicated threats could not have affected the voluntariness of defendant’s statements.

Defendant’s other complaints are likewise without merit. The State presented evidence at the hearing on the motion to suppress that Schamburge was advised of his rights immediately after his arrest and before he made any inculpatory statements. Officers testified that Schamburge stated that he wanted to make a statement although he would not sign it until he had seen an attorney and that he made the statements freely and voluntarily.

The evidence adduced at the hearing on the motion to suppress clearly indicates that defendant’s statements were voluntarily and freely made.

A trial judge is vested with much discretion in determining whether an incul-patory statement is given voluntarily. His ruling should not be disturbed on appeal unless clearly erroneous. State v. McSpaddin, La., 341 So.2d 868 (1977); State v. Simmons, La., 340 So.2d 1357 (1976); State v. Hills, La., 337 So.2d 1155 (1976).

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Herein defendant complains that the trial court “erred in refusing to examine the District Attorney’s file to see if there was favorable evidence to the defendant which the District Attorney had refused to relinquish.”

The defendant requested any exculpatory evidence. The court granted this motion in ruling that if the State had any exculpatory evidence, it should produce it. The State responded that it had none. Thus, the defendant cannot complain of the trial court’s ruling which was in his favor.

Additionally, because defendant did not request that the court make an in camera examination of the State’s file for exculpatory evidence, he cannot now complain of the lower court’s failure to do so.

On the merits, defendant bases his assignment upon the descriptions of defendant given immediately after the robbery to the police by the store clerk and Officer William Cupit, the officer who encountered the robbers. Defendant argues that the two descriptions given immediately after the robbery were so different from Scham-burge’s appearance, that they were exculpatory rather than inculpatory evidence. The specific discrepancy to which defendant refers is whether his complexion is that of a medium skinned black man or a dark skinned black man of medium height and build.

We agree with the State’s conclusion that the descriptions are not so inaccurate as to be considered exculpatory and thus available to the defendant under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The two witnesses described defendant as a black man of average height and build. That description did not exclude the defendant. It should, of course, be noted that both witnesses identified defendant in court as the assailant.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5 (SPECIFICATION OF ERROR NO. 4)

In Assignment of Error No. 5, defendant complains that the trial court erred in coercing the jury to reach a verdict.

Two hours and fifty minutes after the jury retired for deliberations, the jury was recalled to the courtroom. The minutes reflect that defendant was present with counsel. The following exchange took place between the jury foreman and the trial judge:

“BY THE COURT: All right, Mr. Foreman, do you think the jury is anywhere near coming to an accord on a verdict, or not?
THE FOREMAN: Right at this point in time, Your Honpr, I cannot say — in my own estimate — I cannot give an estimate as to the time. I know we are discussing and deliberating the points and questions that have arisen in our minds due to the testimony that has been given before us, and, honestly — in all honesty, Your Hon- or, I cannot give an estimation of time.
BY THE COURT: Well, I wasn’t asking you for an estimation. I was asking you if there was any reasonable hope that you all could agree on a verdict.
THE FOREMAN: Yes, I think so.
BY THE COURT: Do you think that if I — you’ve been out almost three hours; do you think that if I let you try — go back and try some more for maybe another thirty minutes or so, that you might be able to — uh— reach a verdict?
THE FOREMAN: Thirty minutes? I don’t think so, Your Honor.
BY THE COURT: Well, without telling us what the vote is, tell me this, if you are able to at this point — what is the split in the vote? I mean, numerically; I don’t want to know what it is either way, but I just want to get an idea of the split there.
THE FOREMAN: Your Honor, at this time, we have no split in the vote per se. We do have questions that have arisen that we’re trying to clear up.
BY THE COURT: Well, I will remind you that it takes ten out of twelve to agree upon a verdict. Once ten of you have agreed upon a verdict, that that (sic) ought to be the verdict—
THE FOREMAN: Yes sir.
BY THE COURT: —that it does not have to be unanimous. Of course, we’d all prefer if it’s unanimous, but it does not have to be. Well, I’m going to send you out for about another thirty minutes, to see if you all can’t come up with a verdict, and then we’ll check with you.
THE FOREMAN: Yes, sir.
BY THE COURT: Each of you should— uh — before you go — should consider the other jurors’ views and weigh it against your own conclusions. O.K. Retire the jury.”

Defendant argues that the above colloquy establishes that the trial judge pressured the jury to reach a verdict. The minutes reflect that the jury returned some thirty minutes later with an unanimous verdict of guilty. Defendant cites State v. Nicholson, La., 315 So.2d 639 (1975), arguing that the judge’s comments to the jury require the reversal of his conviction.

Initially, we note that defendant did not contemporaneously object to the judge’s action. Hence, his assignment of error should not be considered. LSA-Code of Criminal Procedure Article 841. State v. Knight, La., 323 So.2d 765 (1975); State v. Mitchell, La. 319 So.2d 357 (1975); State v. Thornton, La. 284 So.2d 753 (1973). However, assuming a proper objection, we find no merit in the assignment of error.

In Nicholson, this Court attempted to insure that the juries not be coerced into reaching a verdict. It stated:

“[T]he general principles which govern jury deliberations are undermined and weakened when an ‘Allen charge’ is given in response to notice that the jury has failed to reach a verdict and considers itself deadlocked. Each time a general principle applicable to deliberation is stated, it is modified by a remark apparently calculated to render the desirability of reaching a verdict foremost in the jurors’ minds.”

Unlike the Nicholson jury, this jury was not deadlocked. The instant jury appears never to have taken an initial vote. The jury foreman specifically stated that he thought the jury could reach a verdict. He indicated that the jurors had not reached an impasse in their deliberations. The trial judge did no more than make a general inquiry as to prospects for a verdict and reminded the jury that ten of the twelve had to agree upon a verdict.

Article 808 of the Louisiana Code of Criminal Procedure contemplates the giving of further charges after the jury has begun its deliberations. Two major limitations apply to supplemental charges. The-trial judge may not comment upon the facts of the case. LSA-C.Cr.P. 806. Nor may the trial judge coerce the jurors into agreeing on a verdict. See State v. Rodman, 208 La. 523, 23 So.2d 204 (1945).

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

In defendant’s last assignment of error, he contends that the trial court erred in finding him to be a multiple offender.

After the jury found defendant guilty of armed robbery, the State filed a bill of information charging him with being a multiple offender under LSA-R.S. 15:529.1. The trial judge considered defendant’s three previous simple burglary convictions of February 27, 1964. On June 30, 1964, defendant received the following sentences: simple burglary conviction number 49285—three years at hard labor; simple burglary conviction number 49286 — two years at hard labor, this sentence to begin at the expiration of the three year sentence imposed in 49287; simple burglary conviction number 49237 — three years at hard labor, that sentence to begin at the expiration of the two year sentence imposed in 49285.

The trial court correctly found defendant guilty of being a second offender by considering defendant’s three previous convictions received on the same date as one conviction. In State ex rel. Jackson v. Henderson, La., 283 So.2d 210 (1973), we held that four previous convictions entered on the same date should be treated as one for applying the multiple offender statute.

Defendant argues that he should not have been sentenced as a second offender because the multiple offender statute is inapplicable by its own terms:

“This Section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted.”

Defendant contends that because he was sentenced on June 30,1964, for three simple burglary convictions to serve three years, three years, and two years at hard labor, the maximum sentence which he received was three years. He argues that because more than five years have elapsed since the expiration of his maximum sentence of three years, he cannot be a multiple offender within the meaning of the statute.

The court, however, aggregated defendant’s three consecutive sentences and thus concluded that his maximum sentence was eight years. Since five years had not elapsed since 1972, the year in which an eight year sentence imposed in 1964 would expire, the court sentenced defendant as a second offender.

The question presented is res nova. In State ex rel. Jackson v. Henderson, supra, we held that prior convictions entered on the same date are considered one conviction for the purpose of the multiple offender statute.

It follows logically, therefore, that if three convictions are considered one conviction, then the sentence imposed on “that sui generis last previous felony conviction” is the actual number of years which the court sentenced defendant to serve for his wrongdoing. In the instant case, the defendant received three years plus two years to begin at the expiration of the three years, plus three more years to begin at the expiration of the preceding two year sentence. The court actually sentenced him to serve eight years. We, therefore, conclude that the trial court properly found defendant to be a second offender within the meaning of the multiple offender statute.

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

      . Assignments of Error neither briefed nor argued are considered abandoned. Therefore, as defendant neither briefed nor argued Assignment of Error No. 4, it is considered abandoned.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Lawrence Joseph SCOTT.
    No. 58778.
    Supreme Court of Louisiana.
    April 11, 1977.

      Lila Tritico, New Orleans, Robert S. Rogers, Law Offices of Borne & Rogers, Franklin, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boudreaux, Jr., Walter J. Senette, Jr., Edward M. Leonard, Jr., Asst. Dist. Attys., for plaintiff-ap-pellee.
   DIXON, Justice.

Defendant, Lawrence Joseph Scott, was charged by grand jury indictment with first degree murder in violation of R.S. 14:30. He pled not guilty and not guilty by reason of insanity. On August 28,1975, after trial by jury, defendant was found guilty of the responsive verdict of manslaughter. On September 26, 1975 defendant was sentenced to twenty-one years at hard labor. On appeal he relies upon five assignments of error for reversal of his conviction. (Assignment No. 5 was neither briefed nor argued and is, therefore, deemed abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972)).

On February 12, 1974 Lee Newsom was found dead in a motel room in Morgan City, Louisiana. The victim had been strangled with a strip of towel, had been beaten about the face and had sustained a number of small puncture wounds in the throat area. His mouth had been gagged and his feet and hands tied. A broken bottle was found near the body. Cause of death was determined to be due to strangulation.

The victim had previously checked into the motel and at that time had arranged for his room to be given to two men, Daniel Beach and defendant, while an adjoining room was given to him. The three men were seen together in a nearby cafe on the night before the body was discovered. Both Beach and Scott were AWOL from the Marine Corps and had gone to Morgan City in search of work. The day before the homicide Beach and Scott had met the victim who had agreed to help them secure work. Beach and Scott had disappeared by the time the body was discovered, but an investigation led to Scott’s arrest in New York. After an extradition hearing defendant was returned to Louisiana. (Beach was separately apprehended and convicted of second degree murder. His conviction was affirmed on appeal. State v. Beach, 320 So.2d 142 (1975)).

Assignments of Error Nos. 1 and 2

In these assignments of error defendant argues that the trial court erred in admitting written and oral statements of the accused into evidence on the basis that the State did not affirmatively show that the defendant voluntarily, intelligently and knowingly waived his rights. At the hearing on the motion to suppress the confession, Captain Radeliff of the Morgan City Police Department testified that on May 23, 1974 he picked defendant up in New York, following the extradition hearing, and brought him back to Morgan City in a commercial airplane. He stated that although defendant wanted to discuss the case while in New York, the detective told him he should wait until they reached Morgan City. The officer testified that while in New York he advised defendant of his rights but did not discuss the case any further.

In Morgan City Captain Radeliff and defendant met with Detective Dorsett who testified that it was he who took a statement from defendant. Officer Dorsett stated that prior to any questioning he advised defendant of his Miranda rights and that he asked defendant as to each separate right if he understood them. Defendant responded in the affirmative and signed a waiver of rights form. Detective Dorsett testified that no threats, coercion or other forms of intimidation were used against the defendant. He stated that after an oral statement was made a secretary transcribed it and after reading it defendant made no changes and signed the bottom of the statement. Captain Radeliff also indicated that he used no threats against the accused. Captain Radeliff advised defendant of what crime he was charged with and admitted that he may have mentioned that the co-defendant, Beach, had previously given a statement. The defendant did not testify at the motion to suppress.

C.Cr.P. 703 provides that the State has the burden of proving that a purported written confession was made freely and voluntarily and was not made under the influence of fear, intimidation, duress, menaces, threats, inducements or promises. In addition, defendant must be advised of his constitutional rights prior to questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The circumstances surrounding the taking of the confession support the trial judge’s conclusion that the State had met its burden of proving the statements were voluntarily made. Defendant did not testify to cast any doubt upon the officers’ testimony.

These assignments lack merit.

Assignment of Error No. 3

Defendant pled not guilty and not guilty by reason of insanity. In addition to this defense, defendant contended that due to his voluntarily induced state of intoxication, he could not form the requisite specific intent to kill or inflict great bodily harm. Evidence adduced at trial indicated that defendant may have suffered from blackouts in the past due to alcohol intake and that he may have suffered one of these blackouts on the night of the homicide. These blackouts did not result in unconsciousness but merely a resultant loss of memory after a person has sobered. The evidence did not reveal that defendant suffers from any mental disease or defect to such a degree that on the date in question he could not have distinguished right from wrong. An expert called by the defense testified that if defendant had a blackout at the time of the murder he would not have distinguished right from wrong; the State’s expert contradicted this opinion.

The trial judge instructed the jury concerning the defenses of intoxication and insanity. Defense counsel made no objections at that time. After deliberating some time, the jury returned to the court and asked the court to redefine these defenses as well as second degree murder and manslaughter. After the judge gave these definitions the foreman asked: “The question has arisen — if a man drinks so much, is that insanity?” The judge replied:

“Well, I don’t mean to dodge your question, Mr. Luquette. I’d rather go back and look, rather than shoot from the hip. I have to say, ‘No,’ as a matter of law, not as a matter of fact. There are two separate and distinct defenses. One is intoxication, which is a defense if the intoxication is so great that there was no specific intent. If you find, for instance, that the defendant was so intoxicated that he could not have the specific intent to commit the murder, then you cannot return a verdict of First Degree Murder nor can you return a verdict of Second Degree Murder, but you could return the verdict of Manslaughter.
“If you find that he’s insane as I’ve described it and you find that he actually killed the victim, then you have to return the verdict of Not Guilty by Reasons of Insanity. If you find that he didn’t do it at all, of course, then you would come in with Not Guilty.
“BY MR. LUQUETTE: Thank you very much. You’re quite clear.”

Defense counsel immediately objected because of the “instruction that a person cannot be found insane due to intoxication . ” In this assignment of error defendant contends that the court erred because the instruction was an erroneous statement of the law. He contends that a person who is intoxicated can lose ability to form specific intent and to distinguish right from wrong. According to the defendant, therefore, the defenses of insanity, R.S. 14:14, and intoxication, R.S. 14:15, can be read together to reach such a result.

Insanity is a defense to any crime when the circumstances indicate “that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question . . . ” R.S. 14:14. Voluntarily induced intoxication, however, is only a defense when the condition “has precluded the presence of a specific criminal intent or of a special knowledge required in a particular crime . ” R.S. 14:15. Thus, it provides no defense to crimes only requiring a general intent. State v. Boleyn, 328 So.2d 95 (La.1976).

We are not presented with the question of whether habitual drinking can legally result in some mental defect which thereby renders a person incapable of distinguishing between right and wrong. We are merely confronted with the issue of whether a person who has voluntarily induced an intoxicated state can escape criminal responsibility because while so intoxicated he could not distinguish between right and wrong. A reading of the record in context reveals that it was this latter point that the jury was concerned with. They were concerned if solely due to an intoxicated state a person cannot distinguish between right and wrong, would the legal defense of insanity be established, as opposed to seeking an answer to the question of whether some mental disease or defect that had been caused by intoxication or habitual drinking would be a sufficient defense if such mental condition precluded the ability to distinguish between right and wrong. The judge’s answer was accordingly restricted to this scope, and he informed them that the two defenses are separate and distinct. In fact, defendant in brief and in the trial court was concerned that the judge’s instruction had precluded the jury from finding that solely because defendant was intoxicated and could not therefore distinguish between right and wrong, he was exempt from criminal responsibility. Defense counsel has not shown any concern that the instruction affected the jury’s ability to render a verdict of not guilty by reason of insanity if it determined that, due to defendant’s excessive drinking history,, he suffered some mental disease or defect which rendered him incapable of distinguishing between right and wrong. The judge’s instruction left this avenue open for consideration.

As properly viewed, the issue this assignment raises does not present reversible error. The legislature obviously intended that a person should be held responsible for the consequences of his voluntarily induced intoxication. Thus, in a crime requiring general criminal intent the requisite intent is “generally found in the accused’s intention to become intoxicated, i.e., the accused is held to have intended, in law, all the consequences of his intoxicated condition.” State v. Boleyn, supra, at 99. The exception the legislature provided for is when the intoxicated condition precluded the formation of specific intent; in such a case, intoxication does provide a defense. To the extent, however, that a person is incapable of distinguishing between right and wrong solely due to an overly intoxicated condition, without some additional proof of mental disorder, the legislature intended to prevent such drunkenness from becoming a defense to a general intent crime. See Reporter’s comments to R.S. 14:15.

Accordingly, we find that this assignment of error does not present reversible error.

Assignment of Error No. 4

In this assignment defendant contends that the trial court erred in admitting over objection three color photographs which depicted the scene of the crime and the victim as he was found by police. Defendant argues that these pictures were gruesome in nature and that their tendency to inflame the jury and otherwise prejudice the defendant outweighed their probative value.

The pictures in this case show the victim’s body at the scene of the crime, lying on a bed, a strip of towel wrapped around his neck, his hands tied with a shoe string, his feet bound with another strip of towel, and pieces of a broken Southern Comfort bottle near his left arm. The color photographs show that the victim was strangled, bound and gagged and stabbed in the neck. The photographs do tend to rebut the defensive contention that the defendant was so intoxicated that he did not have the specific intent to kill or inflict great bodily harm. The photographs are not so outrageous as to necessitate a new trial.

This assignment lacks merit.

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


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Albert STUART.
    No. 58780.
    Supreme Court of Louisiana.
    April 11, 1977.

      Wilson C. Krebs, Patterson, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boudreaux, Jr., Edward M. Leonard, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Albert Stuart was charged by bill of information with armed robbery of a bank teller in Amelia, Louisiana on December 19, 1975. He was tried by jury, found guilty as charged, and sentenced to serve a period of fifty-five years at hard labor without benefit of probation, parole or suspension of sentence. In this appeal of his conviction and sentence he argues the merit of three assignments of error.

ASSIGNMENT OF ERROR NO. 1.

He complains that the trial court erred in denying his request to have an independent mental examination made by a physician of his choice at state expense. He contends that this request is justified because no psychiatrist was appointed to the sanity commission, no psychiatric or other tests were administered to him, and neither of the two physicians on the commission was made aware of the details of the crime before his examination of defendant.

Defense counsel raised this issue by motion in which he requested that a sanity commission be appointed to examine the defendant and that, following that examination, he be examined at the forensic unit at East Louisiana State Hospital. A sanity commission was appointed in which Dr. Harvey Sykes, Jr., Assistant Coroner of St. Mary Parish, and Dr. L. J. Dugas served. At the hearing following their examination of defendant, Dr. Sykes, who has been a physician for twelve years and assistant coroner for five years, testified that he had examined defendant Stuart and had decided that Stuart did understand why he was in jail and that he was able to grasp the charges against him and their consequences. The doctor further testified that he found nothing at all to indicate that defendant was incapable of standing trial or assisting his counsel at the trial. He admitted that his examination of defendant was very short, only fifteen minutes, that he administered no psychological or other tests, that he did not know the details of the armed robbery defendant was accused of committing,, and that he had been exposed to specialized training in psychiatry for only four months during his medical training. Dr. Dugas testified that he had been in the general practice of medicine for twenty-one years and, although he did treat patients for psychiatric disorders, had no special training in psychiatry as such. He stated that he had examined defendant for approximately half an hour. No tests were given, but rather the doctor discussed the defendant’s past life and examined him as to his orientation as to time, place and events which he concluded to be normal. The doctor indicated that he did not think that more time for in-depth analysis of the defendant would change his opinion that the defendant was capable of assisting in his defense.

Following examination of the two doctors, defense counsel opined that his inability to have his client, who was accused of committing a very serious crime, examined by a board-certified psychiatrist was “harmful to the constitutional rights of the defendant.” No medical or lay testimony of any nature was offered by defendant. No claim was made by defense counsel that he had not been allowed to have his client examined at his own expense by a physician of his choice. C.Cr.P. art. 646. In fact, defense counsel did not ever specifically request that defendant be examined by a psychiatrist or by a physician of his choice at state expense. However, we find that counsel’s desire, which is made explicit in his assignment of error and his argument to the Court, was probably apparent to the trial court because of his references, to the forensic unit at the state hospital and his stated need to have a board-certified psychiatrist examine his client in order to protect his constitutional rights. C.Cr.P. art. 841; State v. Ervin, 340 So.2d 1379 (La.1976).

Article 644 of the Code of Criminal Procedure provides that the sanity commission:

“shall consist of at least two and not more than three physicians who are licensed to practice medicine in Louisiana, and have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment. No more than one member of the commission shall be the coroner or any one of his deputies.”

The statute does not require that any of the physicians appointed be psychiatrists. Furthermore, selection of qualified physicians to serve on a sanity commission rests within the sound discretion of the trial judge. State v. Vince, 305 So.2d 916 (La.1974); State v. Gray, 258 La. 852, 248 So.2d 313 (1971). Although a judge’s decision not to appoint psychiatrists to a commission could conceivably be an abuse of discretion in a particular case where psychiatrists were available to serve on a commission and there was a stronger showing that a person accused of a serious crime was suffering from a mental defect, there certainly was no such abuse in this case where there was no showing by testimony, affidavit, or even by allegation, that defendant was suffering or ever had suffered from any sort of mental or emotional disorder. Furthermore, there is no complaint here that the judge abused his discretion.

Defense counsel relies in part on Article 646 of the Code which provides that the “court order for a mental examination shall not deprive the defendant . of the right to an independent mental examination by a physician of his choice.” This article does not presently afford a defendant the right to have the state pay for an independent psychiatric examination. State v. Thomas, 310 So.2d 517 (La.1975); State v. Gray, supra; State v. Square, 257 La. 743, 244 So.2d 200 (1971). Although this Court is aware of the expanding rights of indigent defendants, we are not prepared to say that our present statutory procedures are constitutionally deficient.

Accordingly, we find that this assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 and 3.

In these assignments, defendant Stuart complains that the trial court erred in admitting into evidence a copy of a “bait list” which was used to link the money stolen from the bank to the defendant. He argues that the admission violated the best evidence rule (assignment number two) and the hearsay rule (assignment number three), and that the introduction was made without the laying of a proper foundation (assignment number three). A bait list is a list of serial numbers maintained by a bank reflecting the serial numbers on some of the currency in its coffers. The list is kept up to date so as to identify money taken from that particular bank in case of a robbery. The head teller at the Guaranty Bank & Trust Company, Lillian Rhibardi, identified the list as a xeroxed copy of one she had personally made out in her own handwriting. She examined the document in court and testified that the original had indeed been made out by her. Douglas Knight of the F.B.I. testified that he had obtained the list from Gerald Listi of the Guaranty Bank and had used the list to correlate the currency recovered from the defendant with the bills taken from the bank. He identified the list present in the courtroom as a copy of the original bait list which had been supplied to him by the bank. The original list was apparently never in the courtroom during the trial and was not introduced into evidence.

At the time the state sought to introduce the bait list into evidence, defense counsel objected on the grounds that it was a copy and not the original. The objection was overruled and the bait list was introduced into evidence.

Louisiana Revised Statute 15:436 provides that “The best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced.” This rule, however, is limited by decisions of this Court which hold that where a document offered in evidence is a mechanical reproduction of the original, and is thus the substantial equivalent of the original, admission over objection is reversible error only upon a showing that the content of the purported copy does not accurately reflect that of the original. State v. Vincent, 338 So.2d 1376 (La.1976); State v. Jackson, 296 So.2d 320 (La.1974). Although defense counsel had ample opportunity to cross-examine both witnesses as to any alterations in the photostatic. copy, he made no such showing. Thus, the admission of the document does not violate the best evidence rule.

Defendant further argues that the bait list was inadmissible as hearsay. R.S. 15:434. No objection on the grounds of hearsay was ever made by defense counsel as to the introduction of this list. Therefore, the argument is not properly before the Court. C.Cr.P. art. 841; see State v. Dupre, 339 So.2d 10 (La.1976). Even were we to consider this argument we would find no merit in it because the person who made out the list, Ms. Lillian Rhibardi, did testify and was cross-examined at the trial and was available for further cross-examination had counsel wished to question her further. The introduction of the list under these circumstances was proper.

Finally, defendant argues that no proper foundation was established for the admission of the evidence because the state did not show a chain of evidence in connection with the list. As we stated in State v. Dotson, 260 La. 471, 256 So.2d 594, 608 (1971), we held:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.”

Here, the bait list was visually identified by Ms. Rhibardi, the person who made out the original list in her own handwriting. She testified that the document introduced was a copy of the original she had made as a part of the business records kept in the bank on the day of the robbery. Her identification of the document establishes that the document was reasonably connected with the offense and that it had some relevancy in connecting the money taken from the bank with the money found in possession of the defendant.

Therefore, the trial judge did not err in his decision that the bait list in question was admissible at defendant’s trial, and assignments two and three lack merit.

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

DENNIS, J., dissents.


text:
    STATE of Louisiana v. Curtis J. TERREBONNE.
    No. 58785.
    Supreme Court of Louisiana.
    April 11, 1977.
    Michael Silvers, Silvers & Tanet, New Orleans, for defendant-appellant.
    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.
   DIXON, Justice.

Curtis J. Terrebonne was charged by bill of information with possessing, exhibiting and displaying obscene hard core sexual conduct in a motion picture in violation of R.S. 14:106. The defendant entered a plea of not guilty. A jury of six found the defendant guilty as charged by a vote of five to one. The defendant was sentenced to pay a fine of $1000 and to serve eight months in Orleans Parish prison. The defendant assigns four errors for reversal of his conviction and sentence. However, due to the decision of this court in State v. Johnson, No. 58495, consolidated with State v. Hensley, No. 53496, 343 So.2d 705 (La.1977), it is unnecessary to determine whether the errors assigned have merit as the defendant’s conviction and sentence must be reversed.

The facts surrounding the violation in question are as follows: on March 8, 1976, at approximately 10:00 p. m., Officer Charles Credo of the New Orleans Police Department Vice Squad entered the bookstore located at 401 Baronne Street in New Orleans and viewed two twelve minute films in the store’s coin operated machines. On March 9, 1976 Officer Credo obtained a search warrant to confiscate the two films that he had viewed the previous night and returned to the bookstore at 401 Baronne Street at approximately 3:50 p. m. accompanied by another police officer. The defendant, who was the only employee in the bookstore, was standing behind the counter at the cash register. Officer Credo asked the defendant if he was the manager of the store to which the defendant replied that he was in charge at that time. After reviewing the films he had seen the previous day, Officer Credo asked the defendant if he had the keys to the coin operated machines to which the defendant answered affirmatively. At this point the defendant was placed under arrest for the display of obscene films and he was advised of his rights. The officers seized two books, one card depicting an allegedly obscene act, two projectors, two films and a bill. The defendant initialed a receipt for the confiscated items, locked up the store and was taken to central lockup where he was booked.

Prior to this court’s decision in State v. Johnson consolidated with State v. Hensley, supra, R.S. 14:106(C) provided:

“No theatre employee or bookstore employee acting within the course and scope of a bona fide contract of employment wherein such employee is employed by any person, firm or corporation exhibiting motion pictures or selling books, periodicals or other published materials pursuant to a license or permit to exhibit or sell the same issued by the State of Louisiana or any municipality, parish or consolidated city-parish government therein, shall be guilty of a violation of this section as a result of his possession, exhibition or sale within the course and scope of such employment provided such employee has no managerial duties and has no financial interest in the possession, exhibition or sale of any materials other than wages from his said employment, unless there is no person having managerial duties or a financial interest in the possession, exhibition or sale of obscure (sic) materials subject to immediate arrest and prosecution.”

In Johnson and Hensley, however, this court held that the last clause of R.S. 14:106(C), “ . . . unless there is no person having managerial duties or a financial interest in the possession, exhibition or sale of obscure (sic) materials subject to immediate arrest and prosecution,” was unconstitutional because it denied equal protection of the law to a class of bookstore and clerical employees. The pertinent language from Johnson and Hensley was as follows:

“However, under any saving construction of the words ‘subject to immediate arrest and prosecution,’ some clerical bookstore and theatre employees would be subjected to criminal proceedings whereas others would not, depending on whether their superiors are subject to immediate arrest and prosecution. Thus the law does not afford all such employees equal treatment, and raises a question as to whether the distinction between the two classes of clerical employees has been drawn upon a reasonable basis. We do not think that it has. To make a person’s exposure to a possible fine of $2,000 and possible imprisonment at hard labor for five years completely dependent upon whether another person is subject to immediate arrest and prosecution seems to us entirely unfair and unreasonable. Accordingly, we conclude that the last clause of La. R.S. 14:106(C) is unconstitutional because it denies equal protection of the law to one class of clerical bookstore and theatre employees. U.S.Const. amend. XIV, § 1; La.Const. art. 1, § 3 (1974).”

Therefore, pursuant to the remaining valid portion of R.S. 14:106(C), it was necessary for the State to prove that this defendant either had “managerial duties” at the bookstore or had a “financial interest in the possession, exhibition or sale of any materials other than wages from his said employment.”

A review of the record reveals that the State offered no evidence that the defendant either had managerial duties or any financial interest in the store or its inventory other than his wages. Officer Credo was the only witness who testified at trial. He testified that he knew that the bookstore was licensed to an Atlanta corporation and he assumed that the corporation was the owner of the premises. He also testified that he did not investigate to determine whether the defendant was the owner of the property because he knew that the defendant was not. Officer Credo further testified that as far as he knew the defendant was not a principal of the Atlanta corporation, but rather an employee of the corporation. Finally, the officer testified that based on the defendant’s position in the store one would make the assumption that the defendant was the cashier. The State offered no evidence that the defendant was anything other than a mere employee of the bookstore. Therefore, since a mere employee may not be convicted under the provisions of R.S. 14:106, the conviction and sentence of the defendant are reversed and the case is remanded for further proceedings not inconsistent with the views expressed herein.

SUMMERS, J., dissents.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Zyronne BEAL.
    No. 58808.
    Supreme Court of Louisiana.
    April 11, 1977.
    Alan James Boudreaux, Greenberg & Da-llam, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Regina C. Cooper, Asst. Dist. Atty., Research and Appeals Div., for plaintiff-appellee.
   SUMMERS, Justice.

Zyronne Beal, appellant, was charged by bill of information with simple burglary of the building and structure belonging to Travelodge Motel located at 2200 Westbank Expressway, Room 255, Harvey, Louisiana, in violation of Article 62 of the Criminal Code. In a trial by jury appellant was found guilty and sentenced to seven and one-half years at hard labor with credit for time served.

The evidence discloses that on August 26, 1975 Glen Trotter, the night desk clerk of the Travelodge Motel in Harvey, received a phone call from a female motel guest in room 253. She was on the verge of hysteria, saying she was alone in her room and sounds and noises from the next room led her to believe someone was breaking in. Trotter immediately checked the housekeeping sheet and learned that the adjoining room 255 was vacant. He left the office and approached room 255 cautiously. Finding the door ajar, he looked through the slightly open window curtains and saw appellant Beal lift the motel T.V. from the stand and put it on the bed.

When Beal walked toward the door Trotter retreated around the corner. From that vantage point he watched Beal leave the room. Trotter then returned to the front office, heard the alarm system for room 255 sounding and instructed someone to call the police.

Trotter then returned to look into room 255 where he saw Beal wrap the television set in a bedspread in preparing to leave the room. Again Trotter retreated around the corner and as Beal approached, Trotter shouted for him to halt. Surprised, Beal started to run, slipped, got up and started to run again when Trotter shouted, “Halt, or I’ll blow your head off.” Whereupon Beal “spread eagle on the ground.”

One ruling of the trial judge is relied upon by appellant Beal for reversal of the conviction and sentence.

During the trial Trotter testified on behalf of the State. He stated that he was called on the office telephone by a woman who was a guest in room 253. She reported that it sounded like someone was breaking into room 255 next door. Thereafter, on cross-examination by the defense, Trotter was asked for the name of the lady who called him. When he replied that he could not reveal that information, the trial judge ruled that the woman’s name was irrelevant.

Appellant argues that he had a constitutional and statutory right to the name of the woman who called because he was entitled to confront and cross-examine the witnesses against him under Article I, Section 16, of the Louisiana Constitution and Section 273 of Title 15 of the Revised Statutes. Trotter’s testimony concerning what the unnamed woman said during the phone conversation was hearsay, and, accordingly, the defendant argues, the accused was deprived of the right to confront her and cross-examine her.

In our view the testimony of the unnamed woman who alerted Trotter to the burglary that was taking place in the adjoining room was unnecessary to the State’s case. Her statement on the phone served only to explain how Trotter was alerted to the intruder and why he went to room 255. Her statements did not serve to establish the facts which implicated appellant in the burglary. The relevant facts were confirmed by Trotter’s eyewitness account. Trotter observed the defendant moving the television set in room 255; he halted the defendant in the act of departing, apprehending him at the scene with the T.V. and a number of motel keys. There was also testimony by Deputy Jerry Hall that an automobile parked in the vicinity with the trunk open was registered in appellant’s name.

The defense offered no evidence at the trial, relying on the presumption of innocence. The evidence presented by the State was therefore overwhelming and the ruling of the trial judge that the name of the woman who sounded the alarm was irrelevant did not prejudice the defense. La. Code Crim.Pro. art. 921.

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


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Eddie WRIGHT.
    No. 58815.
    Supreme Court of Louisiana.
    April 11, 1977.

      Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    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.

Defendant, Eddie Wright, was charged by bill of information with the October 20, 1974 armed robbery of Teddy Wilson, a bartender at the Cozy Corner Bar, on the corner of Melpomene Street and Claiborne Avenue in New Orleans. La.R.S. 14:64. He was convicted by jury, and subsequently sentenced as a multiple offender to serve ninety-nine years at hard labor.

On appeal defendant relies on four assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 and 2

Defendant’s first assignment of error challenges the ruling of the trial judge denying him access to a list of the voting records of the prospective jurors in the petit jury venire compiled by various members of the district attorney’s office. The existence of this list is acknowledged by the State in brief, but it neither admits nor denies that the list was used by the prosecuting attorney in selecting jurors from the general venire for service at defendant’s trial. The State, in brief describes the list as follows:

“It has been the custom among the assistant district attorneys who try cases in the Criminal District Court for the Parish of Orleans to make certain handwritten, abbreviated notations on the two lists furnished to them [a list of all prospective jurors in the general petit jury venire for the month and a list of those prospective jurors who will be called to serve on the date of trial] regarding various characteristics of certain prospective jurors — their responses on voir dire, the type of cases they served in, their voting records as revealed through polling, etc. —for possible use by themselves and their fellow prosecutors in conducting their voir dire examinations in the cases they try as the month goes by.”

Before jury selection began in the instant case, which was one of the last to be tried during that month, defendant moved the court for:

“ * * * [A] copy or list of the records held by the office of the District Attorney which indicate how the prospective jurors voted in prior jury trials and the type of case heard by each of the prospective jurors * *

Defendant’s request for this list was denied by the trial judge, who, in his per curiam to assignment of error number one, stated his reasons as follows:

“Article [786] of the Louisiana Code of Criminal Procedure states that the scope of voir dire examination is within the sound discretion of the judge. Parties have a right to question jurors on their examination not only for the purpose of showing grounds for a challenge for cause, but also, within reasonable limits, to elicit such facts as will enable them to exercise their right of peremptory challenge. State v. Clark [La.], 325 So.2d 802 (1976), State v. Jones [La.], 282 So.2d 422 (1973).
“In the instant case, although the court did not allow counsel an opportunity to study the state’s records prior to voir dire examination the transcript reflects that counsel was given the opportunity during voir dire to make a limited inquiry as to whether a juror had served on a jury which heard the same type of case. Information on how prospective jurors voted would not produce grounds for a challenge for cause. Such an inquiry, although it may aid the attorney in exercising his peremptory challenges, transcends the reasonable limits allowed in a voir dire examination. It must be noted that records of the Clerk’s office contain verdicts of cases tried each month. Although an onerous undertaking, counsel may ascertain the verdict brought back by a particular jury.”

The State argues in brief that the trial judge’s refusal to compel production of its records was a proper exercise of discretion, and additionally that the records requested by defendant constituted the work product of the State’s district attorney’s office, and as such were privileged and not subject to production, citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and Weatherford v. Bursey, - U.S. -, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).

The majority opinion in Weatherford stated that there is no “general” constitutional right to discovery in a criminal case. Ironically, it and one of the four dissenters both cited with approval Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), in which the high court stated:

“[But] although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, but cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it does speak to the balance of forces between the accused and his accuser. Cf. In re Winship, 397 U.S. 358, 361-364, 90 S.Ct. 1068, 1070-1073, 25 L.Ed.2d 368 (1970). [6] * * *
“[Footnote 6] This Court has therefore been particularly suspicious of state trial rules which provide non-reciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial. See, e. g., Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, [93 A.L.R.2d 733] (1963). Cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1180-1192 (1960).” 412 U.S. at 474, 93 S.Ct. at 2212, 37 L.Ed.2d at 87.

Otherwise, Weatherford provides no guidance in the instant ease because it did not involve an attempt to discover material alleged to be the work product of an attorney.

The main thrust of the State’s argument that the previous voting records of jurors compiled by the district attorney’s office constitute undiscoverable work product of an attorney is based on Hickman v. Taylor, supra. Since defendant does not take issue with the proposition we will assume, for purposes of this case, that the materials sought constitute attorneys’ work products. Although Hickman was a civil case we agree that the holding in this extremely important decision does provide a sensible and acceptable standard for determining whether a court should order material such as that sought in this prosecution produced for inspection. In Hickman, the Supreme Court held that a party is not entitled to discover written statements in the files of the attorney for the adverse party or memoranda made by him in anticipation of litigation, without any showing of necessity for the production of such material or any demonstration that “denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice.” 329 U.S. at 509, 67 S.Ct. at 392, 91 L.Ed. at 461.

Consequently, defendant was required to make in support of his motion proper showing that production of the voting records of the jurors was necessary in order to prevent undue prejudice to his case, hardship or injustice. In order to make such a showing, however, he would have been required to demonstrate that he could not practicably obtain information from other sources, and that the State intended to use it in selecting the jury. Had defendant done so, he should have been given the information before voir, dire or else allowed to question the prospective jurors on the subject.

Although the State admitted possession of such information, it was not shown that the prosecuting attorney actually used it during voir dire. Nor did the defense attempt to demonstrate that it was unable to obtain the data for itself. The only real effort defendant makes to show that he was put at an unfair disadvantage upon voir dire is in connection with his second assignment which he has consolidated with the first for argument.

During the voir dire examination counsel for the defense asked:

“[BY DEFENSE COUNSEL]
“Q. Have any of you served on a jury trial previous to appearing in Court today involving an armed robbery?
“A. (A juror raises hand.)
“Q. Miss Jarrell, on one occasion or more than one occasion?
“BY MISS JARRELL:
“A. Just one.
“[BY DEFENSE COUNSEL]
“Q. What section of Court was that in?
“BY MISS JARRELL:
“A. It was Judge Braniff.
“Q. During the course of the trial that you have previously served on, was there an issue of question of identification of the perpetrators—
“THE COURT:
I will not permit that.
“[BY DEFENSE COUNSEL]:
Your Honor, I feel—
“THE COURT:
I ruled. Take your Bill of Exception.
“[BY DEFENSE COUNSEL]:
Let the objection be noted.”

Defendant argues that this demonstrates an improper restriction upon his right to full voir dire examination of prospective jurors, La.Const. Art. I, § 17. We note first that the defense counsel did not attempt to determine how Miss Jarrell had voted in the previous trial. Had he been denied this right after making the proper showing referred to earlier, his assignments would have merit. Nevertheless, we agree that the question he was not permitted to ask appeared to be within proper bounds, and for this reason we ordered the record supplemented with more of the voir dire examination. Upon examining a transcript of the questioning of the panel including Miss Jarrell, we found no more instances in which defense counsel was denied information from a prospective juror. On the other hand, he was allowed to question all prospective jurors as to whether they had previously served on juries, what kinds of crimes were involved and to otherwise conduct a full voir dire examination.

Accordingly, we find no reversible merit in these assignments.

ASSIGNMENTS OF ERROR NOS. 3 and 4

Defendant contends that the trial judge erred in refusing to grant a mistrial or a new trial because of remarks made during rebuttal argument by the prosecuting attorney. However, during his closing argument defense counsel alluded to the fact that defendant previously had been acquitted of raping a woman he allegedly abducted from the bar during the armed robbery of which he was accused in the instant case. Defense counsel’s apparent motive was to cast doubt upon the four eyewitnesses’ testimony in the present case by implying that the rape case jury had been unconvinced by their identification of the defendant as the abductor. Defense counsel also pointed out to the jury that the abducted woman was not called as a witness in the instant case by the State. The prosecuting attorney’s remarks were in essence an attempt to persuade the jury that they should not assume defendant was innocent of the armed robbery merely because he was acquitted of the rape charge or because the alleged rape victim failed to appear as a witness. Under the circumstances, since the defense counsel initiated the references to the other alleged crime, we conclude the State was also entitled to do so in rebuttal. Furthermore, if any prejudice occurred we find that it was cured by the trial judge’s admonition to the jury that it was to attach no significance to either the acquittal or the trial of the defendant in the previous case or to speculate as to the cause of its outcome; but rather it was to decide solely upon the evidence in the present case whether the defendant was guilty beyond a reasonable doubt of armed robbery or a lesser included offense.

These assignments are without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

SANDERS, C. J., concurs in the decree.

SUMMERS, J., concurs in result.

       In making this assumption, we expressly withhold judgment on whether the district attorney’s compilation of the voting records of prospective jurors in previous trials is part of his work file and therefore privileged. On February 18, 1977, we granted writs to consider this question. State v. Holmes, La., 342 So.2d 672. The matter has been scheduled for hearing and will be decided in due course.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Johnny Washington HARDY.
    No. 58833.
    Supreme Court of Louisiana.
    April 11, 1977.

      Diehlmann C. Bernhardt, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Charles D. Jones, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Johnny Washington Hardy was charged by bill of information with forgery in violation of La.R.S. 14:72. After trial by jury, defendant was found guilty as charged and was sentenced to serve eight years at hard labor. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant assigns as error the trial judge’s denial of his motion to quash. He argues that, since forgery is an offense other than one punishable by death or life imprisonment, prosecution in the district court had to be instituted by indictment or information as mandated by La.Code Crim.P. art. 382. He contends that the present prosecution was improperly instituted by affidavit.

On September 11,1975, an affidavit reciting facts in support of a finding of probable cause that an offense of forgery had been committed by defendant on August 20,1975 was executed. Several months later, Monroe police officials located defendant in El Paso, Texas. After waiving extradition proceedings, defendant was returned to Monroe and was arrested and booked on April 23,1976. On May 6, defendant filed a motion to quash asserting that the prosecution had been commenced illegally by affidavit. Four days later (May 10), a bill of information was filed by the assistant district attorney for Ouachita Parish charging defendants with forgery. After a hearing on the motion to quash, the trial judge denied the motion finding that the prosecution had been validly instituted by bill of information filed on May 10.

La.Code Crim.P. art. 934(7) defines institution of prosecution as follows:

‘Institution of prosecution’ means the finding of an indictment, or the filing of an information, or affidavit, which is designed to serve as the basis of a trial.

La.Code Crim.P. art. 382 provides in pertinent part:

A prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information.

Whether the affidavit was executed to support the issuance of an arrest warrant or to institute prosecution is of no moment. The fact of the matter is that, after defendant’s arrest, prosecution for forgery was properly instituted against defendant by the filing of a bill of information in the district court. La.Code Crim.P. arts. 934(7) and 382. Defendant pleaded not guilty to the information at arraignment and was subsequently tried and convicted of this charge. Hence, there is no merit to defendant’s complaint that the prosecution herein was illegally instituted against him by affidavit. The trial judge correctly denied defendant’s motion to quash.

Assignment of Error No. 1 is without substance.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in denying his motion for a mistrial based upon the references of a state witness in his testimony to jail cards and three cheeks which were used for handwriting comparison with the forged instrument.

At trial the state called to the witness stand Charles R. VanLopik, the detective in charge of the investigation into defendant’s alleged involvement in the forgery. On direct examination, the following colloquy took place:

Q. You picked that check up, then what did you do with it?
A. Brought it to the Monroe Police Department.
Q. And, then, what did you do with it?
A. The check, along with ... I believe it was about eight jail cards .

At this point, the defense counsel’s objection to the witness’ remark concerning the jail cards was sustained and. the testimony continued. No motion for a new trial was made at this point. Shortly thereafter, the following statements were made:

Q. What did you take . . . what did you take other than this check?
A. We took three checks that we were investigating .

Again defense counsel objected and in addition moved for a mistrial. After the jury was removed from the courtroom, the defense asserted that the references to the jail cards and the three checks constituted impermissible references to prior criminal activity on the part of defendant which necessitated a mistrial. The state contended that there was no deliberate attempt to elicit this testimony for the purpose of prejudicing the jury against defendant. Also, the prosecution argued that the references to the other checks in no way harmed defendant for there was no testimony linking him in any manner with them. Finding that no prejudice had resulted from the witness’ responses since defendant had not been connected by the testimony with the jail cards and the checks, the trial judge denied defendant’s motion for a mistrial. Thereafter, no further mention was made of these items during trial.

A direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney or a court official, during trial or in argument, would require a mistrial on motion of defendant. La.Code Crim.P. art. 770(2). First, a police officer is not a “court official”; therefore, article 770 does not apply. Rather article 771 of the Code of Criminal Procedure would be the applicable article. State v. Jones, 332 So.2d 466 (La.1976); State v. Lepkowski, 316 So.2d 727 (La.1975); State v. Clark, 288 So.2d 612 (La.1974).

La.Code Crim.P. art. 771 provides in pertinent part:

In the following eases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

At the outset, it should be noted that defendant did not move for a mistrial at the time he objected to the witness’ references to the jail cards. Moreover, we do not find nor does defendant claim that the allegedly impermissible remarks were deliberately obtained by design of the prosecutor to prejudice the rights of defendant. At least with regard to the statement concerning the jail cards, the detective’s answer was unsolicited and unresponsive to the prosecutor’s question and neither reference was deliberately uttered by the witness to prejudice defendant. Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for the reversal of a conviction. State v. Jones, supra; State v. Luneau, 323 So.2d 770 (La.1975); State v. Lewis, 315 So.2d 626 (La.1975); State v. Gabriel, 308 So.2d 746 (La.1975). No connection was made between the jail cards and other checks and defendant nor was any further mention made of these items during trial. Under the circumstances, we do not consider that these isolated references to the jail cards and other checks by this witness were of any consequence. It is most unlikely that they would suggest to the jury that defendant had a prior criminal record. Rather, there is more reason to believe that the jury considered that the jail cards were obtained during the course of this particular incarceration and that the checks were part of an investigation of a person other than defendant. Therefore, we do not find that the remarks created any prejudice in the mind of the jury. The trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in admitting in evidence the waiver of rights form (S-2) and booking card (S — 3) signed by defendant for comparison with the disputed writing (check) without first conducting a hearing outside the presence of the jury as mandated by La.R.S. 15:460.1. Defendant argues that the trial judge’s rulings on the admissibility of the writings in the presence of the jury constitute an impermissible comment by him on the evidence in violation of La.Code Crim.P. art. 772.

La.R.S. 15:460.1 provides:

Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses in criminal cases. The writings and the evidence of witnesses respecting the writings may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.

La.Code Crim.P. art. 772 provides:

The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.

Clearly, La.R.S. 15:460.1 permits comparison of a disputed writing with any writing proved to be genuine to the satisfaction of the judge. In the instant case, the state established that the signatures on the waiver of rights form and booking cards were that of defendant. The state then offered the waiver of rights form in evidence. Defendant’s objection was overruled without comment by the judge. Outside the presence of the jury, defendant inquired if the judge’s ruling was based on a finding that the writing was genuine to which the judge replied in the affirmative. Thereupon, defendant moved for a mistrial on the ground of the court’s “comment on the evidence.” In denying defendant’s motion, the judge stated:

The Jury hasn’t been informed as to the nature of your objection, or of any finding by the Court that this signature is genuine . . . that the writing is genuine. The objection is overruled.

Thereafter, the jury was returned to the courtroom and the trial proceeded. When the jail card (S — 3) was offered in evidence by the state, defendant stated: “I make the same objection I made before.” In overruling defendant’s objection, the judge stated: “The Court understands that the defense makes the same objection to ‘S — 3’ as was made to ‘S-2.’ Let the objection be overruled and let it . let ‘S-3’ be admitted into evidence.” No further comment was made.

Defendant’s contention that a hearing on the admissibility of a writing must be conducted by the judge prior to its presentation to the jury is unfounded. La. R.S. 15:460.1 specifically provides that the “writings and the evidence of witnesses respecting the writings may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.” This seems to contemplate that the ruling by the court on the admissibility of the evidence may be made in the presence of the jury with the jury determining the weight which it should be accorded. While judicial comment on the facts or evidence in the presence of the jury is prohibited by La.Code Crim.P. art. 772, this court has consistently held that remarks made by the trial judge in the jury’s presence giving reasons for his rulings on objections, for admitting or excluding evidence, or stating the purpose for which evidence is offered or admitted are not objectionable as comments or expressions of an opinion provided they are not unfair and prejudicial to the accused. State v. Young, 337 So.2d 1196 (La.1976); State v. Lane, 302 So.2d 880 (La.1974). In the instant case, only the rulings on the admissibility of the writings were made in the presence of the jury. The jury was not informed of the judge’s determination that the writings were genuine. Hence, there is no merit to defendant’s contention that the judge’s rulings on admissibility of evidence in the presence of the jury constituted a comment on the evidence in violation of La.Code Crim.P. art. 772.

Assignment of Error No. 3 is without substance.

ASSIGNMENT OF ERROR NO. 4

Defendant assigns as error the trial judge’s denial of his motion for a new trial. He contends that, because prosecution was improperly instituted by affidavit, his incarceration was illegal and hence any evidence obtained during that period was rendered inadmissible at trial. Specifically, defendant argues that the admission into evidence of the booking card signed by him at the time of his arrest and the waiver of rights card subsequently signed by him was improper and necessitated the granting of a new trial.

In Assignment of Error No. 1, we stated that it mattered not whether the affidavit in question was executed to support the issuance of an arrest warrant or to institute prosecution since after defendant’s arrest, prosecution was properly instituted against him by the filing of a bill of information. Likewise, defendant’s contention that the prosecution was improperly instituted by affidavit has no bearing on the admissibility of the writings secured from him subsequent to his arrest. Defendant’s complaint that the writings were unconstitutionally obtained from him after his arrest addresses itself to the validity of his arrest rather than the validity of the manner in which his prosecution was instituted.

The proper method of barring allegedly unconstitutionally seized tangible evidence from a trial is a motion to suppress. La.Code Crim.P. art. 703; State v. Keys, 328 So.2d 154 (La.1976); State v. Anderson, 315 So.2d 266 (La.1975); State v. Womack, 283 So.2d 708 (La.1973). Defendant did not file a motion to suppress prior to trial nor did he seek permission to file such a motion during trial. Moreover, defendant’s objection at the time of introduction of the writings in evidence was on grounds other than the illegality of his arrest. Accordingly, there is no merit to defendant’s complaint. The trial judge correctly denied defendant’s motion for a new trial.

Assignment of Error No. 4 is without merit.

DECREE

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

DENNIS, J., concurs.


text:
    STATE of Louisiana v. William L. COX.
    No. 58835.
    Supreme Court of Louisiana.
    April 11, 1977.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Sheila C. Myers, Asst. Dist. Atty., for plaintiff-relator.
    Dean Latsios, Jack Cooley, Michael H. Ellis, Supervising Atty., Tulane Clinical Education Program, Archie B. Creech, New Orleans, for defendant-respondent.
   DENNIS, Justice.

Defendant, William L. Cox, pleaded guilty to simple burglary, La.R.S. 14:62, and received a three-year sentence to the Louisiana Department of Corrections. While serving this time defendant was charged with and pleaded guilty to simply escape from the Jackson Barracks Work Release Program, La.R.S. 14:110(A). For the crime of simple escape defendant was sentenced to six months at hard labor to run consecutively with any other sentence.

The district attorney of the parish in which the escape conviction was had then charged defendant with being an habitual offender, alleging that he had been convicted of two felonies as provided by the terms of La.R.S. 15.529.1. Upon defendant’s motion, the trial judge quashed the bill of information charging him with being a multiple offender. We granted the State’s petition for a writ of certiorari.

The question presented is whether the State may employ a conviction of simple escape in seeking to have a person declared an habitual offender under La.R.S. 15:529.1. Louisiana’s simple escape statute provides for a double scale of punishment: if the offense is committed by a person sentenced to the Department of Corrections, i. e., a felon, the escape is likewise a felony; but, if the offense is committed by one not sentenced to the Department of Corrections, it is a misdemeanor for which a lesser penalty is provided. La.R.S. MilHXA). Thus, by virtue of defendant’s prior felony conviction for burglary and consequent hard labor sentence, his act of escape amounted to a felony for which a consecutive sentence was required. Therefore, he argues that the State’s attorney, in effect, is attempting to use his burglary conviction more than once to enhance his punishment, viz., first to characterize his act of escape as a felony requiring a consecutive sentence, and, second, to classify him as a person who has committed two felonies for purposes of the Habitual Offender Law.

In State v. Sanders, 337 So.2d 1131 (La.1976), essentially the same question was raised. The firearms statute, La.R.S. 14:95.1, provides for punishment at hard labor of a person who possesses a firearm or carries a concealed weapon if he has previously been convicted of any of certain felonies listed in the act. The defendant, who had been convicted of such felonies, was charged and convicted of carrying a concealed weapon in violation of La.R.S. 14:95.-1. The district attorney then sought to rely upon the concealed weapon conviction in charging Sanders as a multiple offender under La.R.S. 15:529.1. The defendant successfully moved to quash, and we affirmed, holding:

“ * * * [T]he penalty provisions enacted in R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty.” 337 So.2d at 1135.

The result in the Sanders case was in keeping with our well established doctrine that criminal and penal laws are to be strictly construed, La.R.S. 14:3, State v. Gyles, 313 So.2d 799 (La.1975); State v. Penniman, 224 La. 95, 68 So.2d 770 (1953); State v. Truby, 211 La. 178, 29 So.2d 758 (1947), and consistent with the approach we adopted recently in State v. McCarroll, 337 So.2d 475 (La.1976), in deciding whether the legislature intended for a defendant’s act to constitute more than one violation of a criminal statute. We held that, in the absence of an express legislative intent, any doubt should be resolved in favor of lenity, and not so as to multiply the penalty imposed upon the defendant.

The Habitual Offender Law was enacted in 1956 and amended in 1958. Since then the simple escape statute has been amended numerous times, most recently in 1976, and the legislature has given no indication that it should be applied in tandem with the recidivist law. The escape statute itself causes an enhancement of penalty by requiring consecutive sentences because of. a defendant’s previous felony conviction. Although the legislature chose to make the enhancement to a felony dependent upon a defendant’s escape from the Department of Corrections instead of relating the enhancement directly to his previous commission of a felony, we see no real difference because only convicted felons may be sentenced to the Department of Corrections. In any event, there is sufficient doubt that the penalty for a simple escape should be escalated twice by what may be an unforeseen combination of two criminal statutes, and in the absence of an explicit legislative authorization, we will construe the law strictly by refusing to give it such an expansive interpretation.

For the foregoing reasons the judgment of the district court is affirmed.

      . La.R.S. 14:110(A) provides:
      “A. Simple escape is:
      (1) The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement officer or officer of the Department of Corrections from any place where such person is legally confined; or
      (2) The failure of a criminal serving a sentence and participating in a work release program authorized by law to report or return from his planned employment or other activity under said program at the appointed time; or
      (3) The failure of a person who has been granted a furlough under the provisions of R.S. 15:833 and fails to return to his place of confinement at the appointed time.
      Whoever having been sentenced to the Department of Corrections commits the crime of simple escape, shall be imprisoned at hard labor for not less than two years and not more than five years; provided that such sentence shall not run concurrently with any other sentence, provided, however, that:
      (a) A person who is participating in a work release program as defined in Paragraph (2) hereof shall be imprisoned at hard labor for not less than six months nor more than one year and any such sentence shall not run concurrently with any other sentence.
      (b) A person who fails to return from an authorized furlough as defined by Paragraph (3) hereof shall be imprisoned at hard labor for not less than six months nor more than one year and any such sentence shall not run concurrently with any other sentence.
      Whoever not having been sentenced to the Department of Corrections commits the crime of simple escape, shall be imprisoned for not more than one year and any such sentence shall not run concurrently with any other sentence.

      . Under certain circumstances, a court may commit, confine or award custody of a juvenile to the Department of Corrections. La.R.S. 13:1580(2). However, such action does not constitute a sentence to the Department of Corrections. A sentence is the penalty imposed by the court on a defendant upon conviction of a crime. La.C.Cr.P. art. 871. Furthermore, “[n]o adjudication by the court upon the status of any child shall operate to impose any of the civil disabilities ordinarily resulting from conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction.” La.R.S. 13:1580.


text:
    STATE of Louisiana v. George MITCHELL and Bernard Bilbo.
    No. 58838.
    Supreme Court of Louisiana.
    April 11, 1977.

      Robert F. Fleming, Jr., Anthony L. Glori-oso, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendants George Mitchell and Bernard Bilbo were convicted and sentenced for the theft of $1292.29 from a New Orleans bank, and appeal. The theft was accomplished by opening an account in the name of the Louisiana High Blood Pressure Association with a small amount of money, depositing worthless checks and cashing checks before the worthless nature of the checks deposited was discovered.

Assignment of Error No. 1 was taken to the denial of part of a motion to suppress an envelope, six one hundred dollar bills and five ones taken from the front seat of Bilbo’s locked automobile parked on a bank parking lot. Assignments 4, 9 and 12 are related.

Detective Dunn and another detective were called to the ICB bank in downtown New Orleans and interviewed two young men who were attempting to cash two checks. Information from the two men and the history of the activity of the account, supplied by the bank employees, disclosed facts typical of a fraudulent scheme. While the detectives were at the bank, they learned that Bilbo was at that very time attempting to cash another check at the Prytania Street branch of the bank. Two checks of the same type had already been cashed by someone using the name Bernard Bilbo. On instructions from the detective, Bilbo was detained at the Prytania Street branch until police officers, ordered by the detectives, could affect an arrest.

When police arrived at the Prytania Street branch, Bilbo was in custody of a bank guard, who had required Bilbo to empty his pockets. The police took Bilbo and his personal effects to the police car. Bilbo was placed in the back. One policeman sat in front. Bilbo was informed of his rights. Bilbo described his automobile to the officer, who had found his car keys among the effects turned over to him. The other officer then returned to the police car with the information that Detective Dunn wanted Bilbo’s car impounded. The car was located on the bank lot near the drive-in windows, locked. Before the police opened the door they saw an envelope on the front seat with one corner tucked into the upholstery and a “stack of cash sticking out.” The police then unlocked the car and removed the envelope with the money. After the arrival of the police tow truck, the car was hauled away.

Defendant argues that the seizure of the money did not fall within any of the exceptions to the constitutional prohibitions against warrantless searches. The argument lacks merit.

We need not speculate whether the police intended to obtain a warrant after the car was appropriately impounded, or whether the officers approached the car intending to make a warrantless search. (As a matter of interest, the trial judge sustained the motion to suppress items taken by the police from the closed glove compartment).

Probable cause existed. At the time the money had been seized, the police had convincing proof that the bank had been bilked and that Bilbo was a principal in the theft. Even if the police had resolved to search the car without a warrant, it was not to determine whether a crime had been committed, but to find the money.

The police were faced with exigent circumstances. Even a locked automobile is not a safe place for large bills exposed to view on the front seat in the city, either on the bank parking lot or in the city vehicle pound. Currency has a peculiar property: it tends to disappear. Whatever the intention of the police before they saw the money, when they saw it exposed on the seat they had both probable cause and exigent circumstances, and were then entitled to open the door and take the money into their possession.

Defendant relies on State v. Massey, 310 So.2d 557 (La.1975) and State v. Navarro, 312 So.2d 848 (La.1975), cases in which evidence seized in warrantless searches of automobiles was suppressed. The cases are distinguishable. In the Massey case there was a search of an apartment under authority of a warrant. Car keys were found by police on a coffee table in the apartment. The police took the keys and searched the trunk of defendant’s car, parked on a lot behind the apartment building. The search was invalidated because there were no exigent circumstances which justified the lack of a warrant to search the car.

In the Navarro case both occupants of an automobile stopped for a minor traffic offense had been removed from the car and arrested. There was no danger of destruction or removal of evidence, since the police were charged with the safekeeping of the automobile. Therefore there were no exigent circumstances.

There is no merit in Assignments 1, 4, 9 and 12.

Assignments of Error Nos. 7, 13,15,16 and 17

The State sought to introduce into evidence exhibits S-2 through S-6, which were checks payable to two employees of Louisiana High Blood Pressure, Inc. and the defendant Bernard Bilbo. The checks were drawn on the Louisiana High Blood Pressure account at ICB and were all dated July 17, 1975. None of these checks were ever cashed at ICB because on July 17, 1975 the two young men were detained by ICB officials at the downtown branch when each attempted to negotiate one of these checks. Investigation by bank officials and the police led to the arrest of the defendants and the recovery of the other completed but as yet uncashed checks. When the State sought to introduce S-2 through S-6, defense counsel objected on the ground that these checks constituted evidence of “other offenses” for the purpose of showing “system” (R.S. 15:445, 446) and the State had not given the defendants notice of its intention to use such evidence as required by State v. Prieur, 277 So.2d 126 (La.1973). The thrust of defendants’ argument is that the bill of information charged the defendants with the crime of theft of $1292.29 and since the checks sought to be introduced were never cashed, they could not form any part of the crime of theft. Therefore, it is argued, they constituted evidence of other crimes..

As the facts of the case demonstrate, the defendants were involved in a scheme to defraud the bank by depositing in their ICB account worthless checks from another bank and then negotiating their ICB checks to obtain cash. The attempts by the defendant and the two young men to cash checks on July 17, 1975 were part of this continuing scheme to defraud the bank. R.S. 15:447, 448 defining the Louisiana concept of res gestae provide:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words, and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”
“To constitute res gestae 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.”

The attempts to cash checks on July 17, 1975 together with the prior successful cashing of checks pursuant to this scheme form one continuous transaction. R.S. 15-447 specifically provides that “[wjhat forms any part of the res gestae is always admissible in evidence.” In addition, in State v. Priur, supra, in setting out the guidelines to be followed when evidence of other crimes is sought to be used by the State, this court specifically said:

“When the State intends to offer evidence of other criminal offenses under the exceptions outlined in R.S. 15:445 and 446:
“(1) The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant’s testimony.” (Emphasis added). 277 So.2d at 130.
These assignments lack merit.

Assignments of Error Nos. 18, 19 and 20

These assignments involve the introduction into evidence of exhibit S-l, the envelope containing over $600.00 in cash that was seized from defendant Bilbo’s automobile. At trial, when the State first sought to introduce the envelope into evidence, the defendants objected to its introduction solely on the ground that it had been unlawfully seized. The trial judge had previously ruled on that issue at the motion to suppress (see discussion of Assignments 1, 4, 9 and 12 above) and thus permitted the admission of S-l. No other objections were offered to its introduction. Subsequently, however, the defendants objected to the admission of S-l on the ground that a proper chain of evidence had not been established. The trial court sustained the objection and defense counsel asked that the trial judge instruct the jury to the fact that S-l was not in evidence. The triál judge refused to admonish the jury at this time because the State had not yet rested. Defendants moved for a mistrial which motion was denied. The State then recalled Detective Dunn (who had brought the envelope to court) in order to establish the chain of custody. Defendants objected on the ground that the witness had not been sequestered from the time he initially testified. The trial judge overruled this objection. After the detective testified, the trial judge permitted S-l to be introduced into evidence. Defendants assign as error the refusal of the trial judge to admonish the jury (or declare a mistrial); the recall of Detective Dunn; and the eventual admission into evidence of S-l.

The trial judge was correct in his refusal to admonish the jury or declare a mistrial. As the trial judge points out in his per curiam to Assignment No. 18, the State had not yet rested and thus the court permitted the prosecution to recall Detective Dunn. If exhibit S-l had eventually been ruled inadmissible, the refusal of the trial judge to admonish the jury might have been error. However, since S-l was subsequently properly admitted (see discussion below), the trial judge was correct in his refusal to instruct the jury or declare a mistrial.

The trial judge indicated that he would permit Detective Dunn to be recalled, over defendants’ nonsequestration objection, because he would only be testifying as to the technical matter of chain of custody. C.Cr.P. 764 provides:

“Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

It is within the sound discretion of the trial judge to exclude witnesses from the sequestration order and to permit witnesses who have violated the order to testify. See e. g., State v. Washington, 294 So.2d 794 (La.1974). Here, since the witness was recalled merely to establish the chain of custody of physical evidence and not to testify as to any substantive matter in the case, no abuse of discretion has been demonstrated.

Lastly, we note that Detective Dunn’s testimony did establish a sufficient chain of custody for the admission of S-l. The detective testified that he received the envelope from Officer Blalock at approximately 3:00 p. m. on the date of the defendants’ arrest. Officer Blalock had arrived at the Prytania ICB branch at approximately 2:50 p. m. on the date of the arrest and he was the officer who removed the envelope from the defendant’s car. Detective Dunn testified that this was the identical envelope that had been in the safe in the Detective Bureau since that time and that po other envelope containing cash had been placed in the safe. The detective further testified' that he had brought the envelope to court that morning himself. An adequate chain of custody was established for admission of the evidence. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

These assignments lack merit.

In brief the defendants specifically abandoned Assignments of Error Nos. 2, 3, 5, 6, 8, 10, 11, 14, 21, 22, 23, 24 and 25.

Accordingly, since there was no error in the rulings of the trial judge, the convictions and sentences of the defendants are affirmed.