text:
    STATE of Louisiana v. Nathaniel JOHNSON.
    No. 57063.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Vincent Wilkins, Jr., Director, Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Nathaniel Johnson, was charged by bill of information, dated July 16, 1974, with the crime of armed robbery, in violation of R.S. 14:64. After a jury trial, he was convicted and subsequently sentenced to fifty years imprisonment. Five assignments of error were presented to the trial court; however, two were neither briefed nor argued on appeal, and are therefore deemed abandoned. State v. Carlisle, 315 So.2d 675 (La.1975).

Assignment of Error No. 1

The defendant’s first assigned error relates to a line-up identification of the defendant by one of the victims of the robbery and that victim’s subsequent in-court identification: Specifically, the defendant alleges that the trial judge erred in allowing the victim of the robbery to identify him at trial because (1) the line-up at which she had earlier identified the defendant was so impermissibly suggestive that it tainted any subsequent identification and (2) he was without benefit of counsel at the line-up.

The defendant’s evidence that the line-up was impermissibly suggestive is minimal. The defendant chose those who were to stand with him, as well as the order in which they were to stand. The defendant contends the line-up was suggestive because he had some writing on his pants, while the others did not. A review of the photograph taken of the line-up reveals that another person in the line-up had drawings of some sort on his pants leg. All of the participants were of a similar height and weight, wore the same type of prison clothing and had on similar colored shoes. The record does not support the defendant’s contention that this line-up was impermissibly suggestive. State v. Payton, 294 So.2d 211 (La.1974).

Nor does the absence of counsel at the line-up violate the defendant’s constitutional rights. The line-up took place before the bill of information was filed. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that there is no right to counsel at preindictment lineups. See State v. Johnson, 306 So.2d 724 (La. 1975).

The defendant also contends that he is entitled to counsel at the line-up under the provisions of Article 1, § 13 of the Louisiana Constitution. That article provides:

“When any person has been arrested or detained in connection with the investigation or commission of any offense, he . shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

We cannot agree with the defendant’s contention. A preindictment line-up is not a “stage of the proceedings” at which defendant is entitled to counsel. C.Cr.P. 382; La.Const. art. 1, § 15 (1974).

Assignment of Error No. 1 is without merit.

Assignment of Errors Nos. 2 and 3

The defendant contends that the trial judge erred in failing to suppress a tape recorded confession. The basis of defendant’s claim is that he did not make an intelligent and knowing waiver of his right to remain silent, and that the confession was the result of coercive promises and therefore not freely and voluntarily given.

At the hearing on the motion to suppress, the State has the burden of proving beyond a reasonable doubt that a confession or inculpatory statement was made freely and voluntarily. C.Cr.P. 703; State v. Bray, 292 So.2d 697 (La.1974). We find no error in the trial judge’s determination that the State met its burden. ,

Before the defendant, who had a ninth grade education, was questioned he was orally advised of his Miranda rights by an officer. He then read his rights and signed a waiver of rights form. Additionally, as the taping began, he was again advised completely of his rights and positively responded that he understood his rights and was voluntarily waiving them in making the statement. Both of the officers who were present at the taping of the confession stated that no threats or inducements were made to the defendant in order to procure his confession. The only allegation of inducement is the defendant’s statement that one of the officers promised him that he would get ten years or less if he confessed. This unsupported allegation is contradicted by the officers. We con-elude, as did the trial judge, that the confession was freely and voluntarily given. See State v. Minor, 311 So.2d 892 (La.1975); State v. Thomas, 310 So.2d 517 (La.1975).

Assignment of Errors Nos. 2 and 3 are without merit.

Accordingly, the conviction and sentence are affirmed.


source: Caselaw Access Project

author:
SUMMERS, Justice. CALOGERO, Justice DENNIS, Justice
      DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana v. Joseph Leon CHASE, Jr.
    No. 57056.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      William E. Woodward, Clinton, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia P. Branton, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

The grand jury of West Feliciana Parish returned an indictment on January 25, 1974 charging that Joseph Leon Chase, while armed with a dangerous weapon, robbed Mrs. Bertha Harrell on April 21, 1973 in violation of Article 64 of the Criminal Code (La.R.S. 14:64). He was tried on June 17, 1974; the jury found him guilty, and he was sentenced to be imprisoned for 99 years.

Five assignments of error are contained in the record and are relied upon in this appeal for reversal of the conviction and sentence.

On Easter Sunday morning, April 21, 1973, deputy sheriff Billy Travis received a call informing him that a robbery had taken place at Harrell’s Grocery on Highway 66 in West Feliciana Parish. Upon arrival at the store he found the body of Bertha Harrell lying slumped against boxes in the storeroom of the grocery. She had been mortally wounded. Twenty-four stab wounds had been inflicted over the upper part of her body. Her glasses were broken and there was a great deal of blood on and around the body. The coroner reported that she had met a violent death.

The victim’s bedroom adjoining the store had been ransacked. Purses in which she usually kept large quantities of money had been emptied and the contents strewn about. The money was missing. A pistol the victim usually kept in a bedroom of the living quarters adjoining the store was also missing. A diamond ring worn by the victim the night before was no longer on her finger, and money she usually kept on her person was missing.

Assignment Nos. 1 and 2

In a motion for bill of particulars prior to trial, defendant requested a list of the witnesses the State intended to call during the trial, together with information concerning any physical evidence relating to the alleged crime, including fingerprints and analysis of fingerprints. The trial judge refused to compel the State to furnish the requested information and that ruling is the basis of this assignment of error.

Defense counsel acknowledges in brief that the principle of pre-trial discovery has not been approved by this Court, except in certain limited instances not present here, and it is also noted that the State did furnish particulars to six of the nine requests made by the defense.

On repeated occasion this Court has held that the defense is not entitled to the list of witnesses the State intends to call at the trial. E. g., State v. Burkhalter, 260 La. 27, 255 So.2d 62 (1971). Nor has this Court ever required the State to produce fingerprints or other evidentiary reports or documents in its possession except written confessions. State v. White, 321 So.2d 491 (La.1975). To the contrary, this Court has often declared that the question of pre-trial discovery of the State’s evidence by the defendant is properly a matter for legislative action. State v. Hunter, 250 La. 295, 195 So.2d 273 (1967). In this regard, the Legislature has declared that disclosure is not required of records, or information contained therein, held by the offices of the attorney general, district attorney, sheriffs, police departments, marshals, investigators, correctional agencies, investigative agencies, -or intelligence agencies of the State pertaining to pending or anticipated criminal litigation. La.R.S. 44:3.

These assignments have no merit.

Assignment No. 3

Over the objection of the defense the trial judge permitted two deputy sheriffs, state’s witnesses, to testify to the content of a written statement given to them by defendant on January 14, 1974, but which defendant did not sign. Prior to trial, the State advised the defense that it proposed to introduce into evidence at the trial the following:

“A waiver of rights signed by the defendant on January 14th, 1974 at the West Baton Rouge Parish jail office in Port Allen, Louisiana. Said waiver signed by defendant in the presence of Deputy Wm. Daniels and Deputy Pete Turner with attached statement of a page and two thirds, read by the defendant, sworn to be true and correct, but refused to sign it.”

Defense counsel argues that a request in his motion for bill of particulars was such that the State should have furnished the statement prior to trial in response to that request. The motion contained a request for written statements, admissions or confessions by the defendant which tended to negate the guilt of the defendant.

In the July 14, 1974 statement defendant declared that he was last in West Feliciana Parish at Christmas time in 1972. He denied that he had ever attempted to buy a pistol from R. T. Harrell, the victim’s husband, or that he had ever handled such a pistol except a .22 rifle when he hunted with Harrell. Also, he denied that he knew whether the Harrells owned a pistol. According to his statement, on the night of the crime he was at the Shed-Dran Motel on Greenwell Springs Road in Baton Rouge with a girl named Tiny.

The statement is entirely exculpatory and did not amount to an admission of guilt or a confession, and it was not regarded as such by the State or the trial judge. Therefore, the State answered the defense request for a bill of particulars by stating that it had no- such statements. While the later notice that it intended to introduce the statement during the trial, required by Article 768 for confessions or inculpatory statements, would seem to be inconsistent with its refusal to produce the statement in advance of trial because of its exculpatory nature, the procedure does not alter the exculpatory nature of the statement.

The rule of law established by State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945), which requires the pre-trial production of defendant’s written confessions in the possession of the State, does not extend to statements which are purely exculpatory. The State is not required to disclose the existence of an exculpatory statement in advance of trial, if the statement is not suppressed and is later disclosed during the progress of the trial. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A motion for a bill of particulars cannot be used to compel production of State’s evidence which is not otherwise subject to pre-trial discovery, except when the trial judge, in his discretion, finds that the evidence is necessary, in fairness, to permit the defendant to properly defend the charge. The discretion of the trial judge has not been abused here.

This assignment is without merit.

Assignment No. 4

When the State rested, defense counsel moved for a directed verdict on the ground that all the evidence was “insufficient” to sustain a conviction in this matter. A motion for a directed verdict so grounded presents no question for review by this Court. Only motions for directed verdicts based upon the contention that there is no evidence at all to support the charge or an essential element thereof present questions for this Court’s determination. State v. Douglas, 278 So.2d 485 (La.1973).

In brief here the defense argues that the State failed to prove that the defendant committed the theft of anything of value as Article 64 of the Criminal Code, defining robbery, requires. There were no eyewitnesses to the crime, and the State failed to establish that any of the items alleged to have been taken during the robbery were ever recovered. As our brief statement of the facts in the beginning of this opinion discloses, there was strong circumstantial evidence that money, the gun and a diamond ring were taken during the robbery. This is some evidence, and we cannot judge its sufficiency.

Assignment No. 5

In a motion for a new trial the defense reiterates the grounds asserted in its assignments of error, which have been considered and found to be without merit. In addition, the defense brief asserts that no statement in the record by the trial judge shows that he reviewed the evidence prior to denying the defense motion, and this constitutes an error patent on the face of the record.

The trial judge was present at the trial and heard all of the evidence. If he did not review the evidence again in ruling on the motion, for a new trial it was because ' he considered this to be unnecessary. It is noted, moreover, that when the motion for a directed verdict was made, presenting the same issue, and defense counsel inquired of the judge whether he should argue the evidence, the judge stated that he had heard the evidence. Whereupon, defense counsel stated “That’s right, Your Honor, that’s the reason why I wouldn’t consider it necessary to go into detail and take up time . . . . ” This assignment has no merit.

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

CALOGERO, J., concurs with reasons.

TATE, J., joins in Mr. Justice CALO-GERO’S concurring opinion.

DENNIS, J., concurs with reasons.

DIXON, J., dissents with reasons.

CALOGERO, Justice

(concurring).

I respectfully concur.

With respect to assignments of error numbers one and two, I agree with the view expressed by Justice Dixon in his dissenting opinion. La.R.S. 44:3 exempts from the provisions of the Louisiana Public Records Act records of investigative and prosecutorial offices, which pertain to pending criminal litigation. The Public Records Act is misinterpreted by the majority and is not relevant to the issues of this case. This misinterpretation, however, does not affect the conclusion reached by the majority that these assignments are without merit.

Additionally, although I agree that assignment of error number three is without merit, I disagree with the language and reasoning contained therein. See Work of the Appellate Courts, 34 La.L.Rev. 197, 428, 461 (1974).

DENNIS, Justice

(concurring).

I respectfully concur. However, I find it unnecessary to discuss La.R.S. 44:3 because in my opinion it is not applicable to this case.

DIXON, Justice

(dissenting).

I respectfully dissent.

R.S. 44:1 et seq. is the Louisiana Public Records Act. 44:3 exempts from the provisions of the act certain records (of investigative and prosecutorial offices) which pertain to pending criminal litigation. The Public Records Act is misinterpreted by the majority, and is irrelevant to the issues of this case.

Nor can I agree that Assignment No. 3 is without merit. The State should have disclosed the evidence of the statement in advance of trial, upon request by the defendant.

      . La.R.S. 14:64 provides : '
      “A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      “B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Paul CLAY, Jr.
    No. 56976.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Thomas K. Regan, Crowley, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Robert T. Cline, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Paul Clay, Jr. was charged by bill of information with “theft of one tape player, one purse and credit cards having a value in excess of $100.00 in the lawful money of the United States of America, property of Mr. and Mrs. Neil Babineaux, in violation of the provisions of R.S. 14:67.” A plea of not guilty was entered. Following trial, the accused was convicted by a five-man jury which returned a unanimous verdict of guilty of theft of property of $100.-00 in value. A motion for new trial was denied. Thereafter, Clay was sentenced to serve two years at hard labor under the supervision of the Louisiana Department of Corrections. Six assignments of error are presented on his appeal.

ASSIGNMENTS OF ERROR NOS. 1, 2 and 3.

These are argued in defendant’s brief as a unit. The assigned errors as related in defendant’s brief are as follows:

“1. The information filed in this proceeding is defective in that it fails to conform with the definition of value of the items as stated in Louisiana R.S. 14:67.
“2. The jury rendered an improper verdict and the court erred in accepting that verdict and in failing to remand it to the jury with proper instructions.
“3. The jury returned an improper verdict of theft of property of $100.00 in value.”

A single argument is made under these assigned errors, i. <?., that the verdict rendered by the jury was improper. Defendant reasons that since the information charged the theft of items of a value in excess of $100.00, and the statute, La.R.S. 14:67, defines theft and then grades the offense according to the value of the property taken, the verdict of the jury finding him guilty of theft of property “of $100 in value” is not responsive. He also contends that the jury, having been advised that the bill of information charged defendant with a theft of property valued in excess of $100.00, and having been instructed on the grades of a theft offense under R.S. 14:67, may have been attempting to find him guilty of a lesser grade, i. e., less than $100.00 when they designated a value of $100.00 in value.

That portion of R.S. 14:67 charged herein (the information listing items having a value in excess of $100.00) is the third paragraph of the statute stating in pertinent part:

“When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars . . . ” (Emphasis provided)
Responsive verdicts to the charge of theft under article 814 of the Louisiana Code of Criminal Procedure (1973) are these:
“Theft:
Guilty.
Guilty of theft of property of - dollars in value.
Guilty of attempted theft. x
Guilty of unauthorized use of movables.
Not guilty.”

The verdict herein returned by the jury, “Guilty of theft of property of $100.00 in value,” was thus responsive to the charge and was not an improper verdict as alleged.

Furthermore, we find no merit in defendant’s contention that the jury in finding defendant guilty of theft of property of $100.00 in value might have meant to find him guilty of property worth less than $100.00.

Assignments of Error Nos. 1, 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 4.

It is contended that the court committed reversible error in allowing evidence of other crimes committed by the defendant to be introduced into evidence over objection by defendant, a violation of State v. Prieur, 277 So.2d 126 (La. 1973). No Prieur notice had been given.

The context facts important to a consideration of this objection follow. Mr. and Mrs. Babineaux, the owners and operators of the Western Auto Store in Rayne, Louisiana, from where the stolen items were removed, testified that a tape player and wallet containing money and several credit cards were taken on the date of the theft. They identified a Penney’s credit card as one belonging to them and stolen on that date. They also testified that on the date of the crime they observed two black men (one identified by them as Paul Clay, the defendant) and a black female (described) in the store just prior to the theft. Mrs. Babineaux was engaged in filling out a credit application for the female, which was not completed, while the men browsed around the store in the vicinity of the tape players. When they left, it was discovered that a tape player and a wallet from the purse of Mrs. Babineaux, containing a small amount of money ($3.00) and several credit cards, were missing.

The state called an employee of Penney’s in Lafayette, who was employed there on the date of the theft in the jewelry department, and she was asked if this identified credit card in the name of James N. Babi-neaux had been seen before by her. She answered that it had. When asked under what circumstances, she replied that it was presented to her in the fine jewelry department of Penney’s on November 13, 1975 (the date of the theft). Upon questioning she then described as the person who had presented the credit card to her a black female, and gave her physical characteristics, and clothing. Objection was made by defendant that this was evidence of another crime. Following a discussion out of the presence of the jury, the trial judge ruled that he was not going to allow the prosecution to show another crime, but he would allow the state to show by this witness the possession of the stolen credit card at Penney’s by a black female, otherwise unidentified by the Penney’s employee. Nothing more than this possession by someone other than defendant was shown. No other details of the Penney’s transaction were elicited from this witness. The testimony did not indicate defendant Clay was in possession of the credit card at Penney’s, nor even that defendant was in the company of the black female (although by his own later testimony defendant admitted that upon leaving the Western Auto Store in Rayne he drove his male and female companions to the Penney’s store in the mall in Lafayette). Thus no other crime by defendant Clay at Penney’s was shown by the evidence admitted here over defendant’s objection. The judge apparently made a conscientious attempt to avoid even a flirtation with possible error, for in addition to the restrictive nature of the evidence admitted of this Penney’s incident, the judge deleted the last paragraph of defendant’s inculpatory statement before admitting it in evidence. This deleted paragraph had contained reference to the use of the stolen credit card at Penney’s. See footnote 2, infra. Actually had the judge permitted a showing of complicity by the defendant in the Penney’s incident, such would not have violated Prieur. In a case quite similar to the present, State v. Scott, 320 So.2d 538 (La.1975) we stated:

“The defendant entered a continuing objection, which was overruled, to any evidence of the department store theft on the ground that it was evidence of another crime introduced without compliance with the requirements of State v. Prieur, 277 So.2d 126 (La.1974). Prieur, however, was designed only to regulate evidence of unrelated crimes otherwise-inadmissible except as permitted by La. R.S. 15:445, 446 to prove knowledge, intent, or system. See Prieur at 277 So.2d 130; State v. Banks, 307 So.2d 594 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). The circumstances surrounding the department store theft by use of a credit card stolen in the robbery were independently admissible as relevantly tending to prove that the accused was a principal in the robbery as utilizing the proceeds thereof. See State v. Davis, 311 So.2d 860 (La.1975).”

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

The refusal to grant a directed verdict is the basis of this assigned error.

Defendant contends there was no evidence that the value of the property was in excess of one hundred dollars. Presumably he is now also contending that there was no evidence that the value of the property taken was “$100.00 in value.” Essentially he contends that the state’s evidence was too indefinite or imprecise to establish the exact value of the items taken.

The owners, Mr. and Mrs. Babi-neaux, testified as to the value of the items. Mrs. Babineaux said that “with tax and everything” the value was a little over $100.00 and that the wallet was “probably” valued at about $5.00. Mr. Babineaux testified that the tape player had a value of $99.95. Both testified that additionally seven or eight credit cards were taken. We find this evidence sufficient to establish the value of the items taken as at least the $100.00 found by the jury. More prior proof of value is not required.

Assignment of Error number five is without substance.

ASSIGNMENT OF ERROR NO. ó.

Here, defendant complains that the court erred in allowing his inculpatory statement to be introduced into evidence without sufficient evidence as to its voluntary nature. Attention is directed to the voluntary waiver form which is said not to contain a date, time or place. Further, it is pointed out that it is not attached to the statement but was merely placed in the file. Defendant submits that the court should not have admitted the statement without further proof that the voluntary waiver was actually given at the time the statement was taken.

“My name is Paul Clay, Jr.
My address is 128 Nancy Lane, Lafayette, La.
I am 24 years old.
“Last Wednesday afternoon at about 2:00 or 3:00 in the Afternoon, Me, Purley Sam. and Blinda Gayle Strauss went to the Western Auto Store in Rayne, La. Gayle wanted to open a credit account there. We all got down and went inside. She was filling out some kind of application. I left the store and crossed the street and went to the drug store. When I came out of the drug store they were in the car. When we got in seott her and Furley started talking about some credit cards. Furley asked her if she knew how to cash them. They had different kind of cards. They had a penny card. This is when I percieved that he had got the card out of the store. Furley asked to go to penny’s in the mall in Lafayette. “We went to Penny’s in the mall. Gayle Strauss and Furley went into J. C. Penny’s in the Mall. They went to the Jewelry counter. I heard them saying that they wanted to buy a ring. I walked around while they were at the counter. The manager of the place asked if she had some kind of Identification. They got to talking. The man asked me if I was her husband. Gayle told him no. The man asked her to come up stairs, that he wanted to talk to her. I walked out of the store. Furley done left. The man had got the card from her. Her and Furley got in the car. They also had a tape player in- the car. I don’t know if Gayle took it or Furley took it. I don’t know who Furley sold it too. We went to Woolcos. We didn’t buy nothing.”

While it is true that the waiver form neither contains a date nor a notation of the time and place it was signed, the testimony of deputies John Arceneaux and Kenneth Goss, police officers present when it was signed, established the day, time and place of its execution. In fact they detailed the time, place and manner of taking the statement and pointed out that defendant was, at that time, advised of his rights and that he read and signed the waiver form. Furthermore, the signatures of both deputies Arceneaux and Goss appear on the waiver form as witnesses. Thus the contention that the waiver could not be used is without merit. The voluntary nature of the statement was also proved by the testimony of these officers.

This assignment of error is therefore without merit.

For the foregoing reasons the conviction and sentence of the defendant herein is affirmed.

      . It is to be observed that the sentence imposed was two years at hard labor, the sentence provided for in La.R.S. 14:67, third paragraph, wherein it is provided “the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars or both.” No complaint is made that the sentence was not in accordance with law.

      . The substantive portion of the voluntary statement was as follows:


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Milby WILLIAMS, III.
    No. 56971.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      John G. Williams, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., John S. Stephens, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

On July 16, 1974, Milby Williams III was charged by bill of information with having “unlawfully attempted to murder Sgt. Douglas Masters” on February 2, 1974. After a jury trial on March 11, 1975 defendant was convicted of attempted manslaughter and sentenced to ten and one-half years.

At two-o’clock on the morning of February 2, 1974 Sergeant Douglas Masters of the City of Natchitoches police received a radio call that a disturbance was in progress at Apartment L-7 of the J. W. Thomas Apartments. Four police cars responded to the call. As Sergeant Masters arrived he noted that others who had preceded him were leaving. When he inquired about the disturbance he was told there was no trouble at that particular apartment.

At that time Sergeant Masters heard a shot in the vicinity of the Trudeau Street extension at North Street. He then proceeded to Trudeau Street and thence to Lee Street. As he drove along a man ran across the street ahead of him at an angle. When the man got to the nearby ditch bank, he stopped and turned, firing two shots in the direction of the patrol car occupied by Masters. These shots were heard by Masters and he saw the muzzle flash from the pistol in the fleeing man’s hand. In the street light at that location Masters observed the man’s clothing, a lightish blue or purplish colored shirt and dark pants. Later inspection failed to reveal any bullet holes in the patrol car.

Masters applied the car brakes and got out of the patrol car but the man disappeared between two apartment buildings. Masters then radioed for assistance. Other officers, as well as the Chief of Police, arrived on the scene. Some of them went to the apartment of defendant’s parents in the same complex, but received little information from defendant’s mother, who was alone. Then they went to defendant’s brother’s apartment in the same building, which they searched with the brother’s permission. As they were leaving they noticed defendant beneath a parked car. He emerged from hiding, and while he was being searched the Chief of Police felt what he believed to be a pistol handle in defendant’s back pocket. At this point defendant broke loose and ran away. Soon thereafter he was found hiding beneath a house in the neighborhood. No pistol was found on his person, but a pistol was found under the house near the spot where he had been lying in hiding. Three spent cartridges and three live rounds were in the pistol. Defendant testified that he was drunk that evening; that he was an epileptic; and that he did not have a pistol that night.

Defendant assigns as error that a review of the entire record discloses “no evidence to support the findings of the Jury that the defendant was guilty of the lesser included offense of Attempted Manslaughter, the defendant being charged with Attempted Murder.”

A verdict of attempted manslaughter is responsive to a charge of attempted murder. La.R.S. 14:27, 30, 30.1, 31; La.Code Crim.Pro. Arts. 465, 814; State v. Peterson, 290 So.2d 307 (La.1974). If there is some evidence of the crime, no matter how little, such as the shooting in the case at bar, this Court will not inquire into the sufficiency of the evidence. As we understand the recited facts, the jury could find that defendant attempted to kill Sergeant Masters while on duty by shooting at him with specific intent to kill or inflict great bodily harm, but the jury exercised its statutory right to return the lesser responsive verdict of attempted manslaughter. La.R.S. 14:27, 30, 30.1, 31; La.Code Crim.Pro. Art. 465, 814. There was some evidence.

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


author:
SANDERS, Chief Justice. DENNIS, J.,
      TATE, Justice CALOGERO, Justice

text:
    STATE of Louisiana v. George WYATT.
    No. 56837.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Norman J. Robinson, Jr., Asst. Dist. Attys., for plaintiff-relator.
    Edward A. Armstrong, Jr., New Orleans, for defendant-respondent.
   SANDERS, Chief Justice.

The Orleans Parish District Attorney filed a bill of information charging George Wyatt with the armed robbery of Mary Carroll of $1,565.00 in violation of LSA-R.S. 14:64. Defendant filed a motion to suppress the pistol, purple shirt, and bag of money seized by the police at the defendant’s home. After a hearing, the trial court granted the motion and suppressed the evidence. On application of the State, we granted supervisory writs to review the ruling.

The facts developed at the hearing include the following: On March 27, 1975, at'approximately two o’clock in the afternoon, Officer Andrew Fossier of the New Orleans Police Department, while driving his automobile, was flagged down by Mr. Casey, an officer of the Continental Savings and Loan Company located a few blocks away. Casey explained that his business had just been robbed and pointed down the street to an elderly man wearing a purple shirt, identifying him as the armed robber. Looking into the rear view mirror of his car, the officer saw the defendant hurriedly enter a house. Officer Fossier and Casey then followed the defendant to the house. Meanwhile,-another police officer, Deputy Sheriff John Atto-way, who had observed the events from his own police vehicle, joined Officer Fossier and Mr. Casey in their pursuit. When they reached the house, they asked Carl Johnson, an occupant seated on the steps, if a man had just gone into the house. He replied affirmatively and granted them permission to enter.

Defendant-Wyatt was found lying shirtless on the bed and was placed under arrest by Officer Fossier. Deputy Sheriff Attoway proceeded to look for weapons and found a brown paper bag filled with money inside the refrigerator. Other officers arrived and found a small pistol on the mantlepiece and a purple shirt in a pile of clothes.

The defendant’s motion to suppress the money, gun, and shirt found at defendant’s home was granted by the trial court because the court concluded that the evidence was obtained in a warrantless search contrary to the United States and Louisiana constitutions. The State contends that no warrant was needed because either (1) the evidence was seized following an entry into the house while the officers were in hot pursuit of an armed robber, or (2) the officers were given permission to enter the house and search for the defendant by Mr. Johnson, who lived with the defendant at that address.

Under the Fourth Amendment to the United States Constitution, warrantless seizures are per se unreasonable, unless justified by one of the exceptions to the requirements for a search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Hills, La., 283 So.2d 220 (1973). In the present case, the police officers did not have a search warrant authorizing them to search the defendant’s home. The State, however, argues that because the officers were in hot pursuit, no warrant was necessary.

In Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L. Ed.2d 782 (1967), the United States Supreme Court held that when the “exigencies of the situation” make that course imperative, neither the entry of a residence without a warrant to search for the robber, nor the search for the robber and his weapons are invalid, citing McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The court upheld the entry of a residence and the seizure of evidence while in hot pursuit of the fleeing felon.

In Hayden, an armed robber entered a taxicab office, took a sum of money and fled. Two taxi drivers, hearing the shouts “hold up,” followed the robber to a residence. One of the cab drivers notified the taxicab dispatcher and described the robber. The dispatcher immediately notified the police, who arrived at the scene in less than five minutes. The police had no warrant. A police officer knocked on the door and was given permission to search the house for the robber by the defendant’s wife. Other officers spread out through the building searching the cellar, first, and second floors. The defendant was found in an upstairs bedroom, feigning sleep. He was placed under arrest after the police officer in the cellar announced that there was no other man in the house. Meanwhile, one of the officers was attracted by the sound of running water in an adjoining bathroom, investigated, and discovered a shotgun and pistol in the toilet flush tank. Another officer found in a washing machine a jacket and trousers of the type the fleeing man was said to have worn. A clip of ammunition for the pistol and a cap were found under the mattress of defendant’s bed; ammunition for the shotgun was found in a bureau drawer in his room.

The State correctly maintains that Warden v. Hayden, supra, is indistinguishable from the instant case. In the instant case, an armed robber entered a savings and loan company, took $1,565.00, and fled. The company official who witnessed the robbery followed the robber. The official hailed a police officer, explained that his place of business had just been robbed by a man with a gun, described the man, and pointed out an elderly man in a purple shirt carrying a bag as the man who had robbed his business. They saw him hurriedly enter a building. Another police officer in a car immediately behind the officer who had been flagged down, witnessing the events and thinking that the officer might need his help, joined in the pursuit which followed the loan company officer’s “hue and cry.” The police officers had no warrant. They saw the defendant hurriedly enter a house. They were given permission to search the house for the robber by a man seated on the front steps who lived there with the defendant. The officers spread out and the defendant was found shirtless on a bed. The defendant was placed under arrest. No one else was found inside the building. Within four or five minutes of entering the premises Officer Attoway found a bag of money in a refrigerator. Within fifteen minutes, other police officers secured the pistol from the mantlepiece and the purple shirt from a pile of clothing. Both items were in plain view.

In oral argument, the defense asserted that the defendant had been removed from the premises prior to the seizure of the gun and the shirt. We do not find that the record supports this assertion. As we have noted the entire episode occurred within fifteen minutes after the entry. The officers removed the defendant from the premises after seizing the gun and shirt.

In Warden v. Hayden, the United States Supreme Court held:

“We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, ‘the exigencies of the situation made that course imperative.’ McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.”

In our opinion, the items here were constitutionally seized in the exigencies of hot pursuit.

The State, moreover, has advanced an independent ground for admission of the evidence, which we find equally valid. The State asserts that the police officers had permission to enter the house and search for the robber.

The record reflects that Carl Johnson gave the police officers permission to enter the house. It is undisputed that he lived there with the defendant.

It is well established that a joint tenant or one having common authority over the premises can legally consent to an entry and search. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L. Ed.2d 242 (1974); State v. Hubbs, 261 La. 173, 259 So.2d 53 (1972); State v. Edwards, 257 La. 707, 243 So.2d 806 (1971); State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968); State v. Gregoire, 249 La. 890, 192 So.2d 114 (1966); Annot., 31 A.L.R.2d 1078 (1953); W. Ringel, Searches and Seizures, § 232, p. 290 (1972).

In State v. Edwards, supra, the defendant who had committed a burglary was followed by the police to his mother’s house. The mother gave the officers permission to enter and search for him. In the course of the search, the officers seized suitcases and other evidence which were connected with the burglary and in plain view. This Court upheld the seizure of the evidence and admitted it at the trial.

Defendant contends that the permission here was limited to searching for the defendant and that the officers exceeded the scope of their permission when they seized the pistol, money, and shirt.

We do not construe the permission so narrowly. The officer testified that he asked for permission to enter the house to search for a suspect believed to have committed an armed robbery, which was granted. Such a consent, in our opinion, includes a grant of permission to seize the robber, his weapon, clothing, and the fruits of his crime.

We conclude that the consent was constitutionally valid.

Contrary to the ruling of the trial court, we hold that the evidence seized is admissible at the trial.

For the reasons assigned, the ruling of the Criminal District Court of the Parish of Orleans is reversed; the motion to suppress is overruled; and the case is remanded to the District Court for further proceedings according to law and consistent with the views herein expressed.

DIXON, J., concurs.

DENNIS, J.,

concurs for the reasons that the police officers had permission to enter and search the house.

TATE, Justice

(dissenting):

The search of the refrigerator without a warrant and without consent violated the constitution. Hot pursuit does not justify an extended search of the premises. The trial court properly suppressed the evidence.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice

(dissenting).

The trial judge in this case suppressed the seized evidence because, after hearing all of the witnesses and assessing the facts, he concluded that the arresting officers had ample time, after effecting the arrest, to obtain a search warrant. Moreover, he obviously concluded, as does this dissenting Justice, that no exception to the warrant requirement was shown to exist under the uncontroverted facts before him.

For the foregoing reasons I respectfully dissent.


author: MARCUS, Justice. DIXON, J.,

text:
    STATE of Louisiana v. Claude WOODS.
    No. 57011.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Fred C. Jackson, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia P. Branton, Asst. Dist. Atty., St. Francisville, for plaintiff-appellee.
   MARCUS, Justice.

Claude Woods was indicted by the grand jury for the Parish of West Feliciana for the first degree murder of James Hodges in violation of La.R.S. 14:30(3). After trial by jury, defendant was found guilty as charged. A motion for a new trial was denied. Defendant was then sentenced to death in accordance with the mandatory death penalty provided in La.R.S. 14:30. Thereafter, he took an appeal and designated two errors in his assignment of errors filed in the district court.

ASSIGNMENT OF ERROR NO. 1

Defendant first contends that the trial judge erred in denying his motion for a new trial grounded on the allegation that the verdict was “contrary to the law and evidence.” It is well established that the allegation that the verdict is contrary to the law and evidence presents nothing for our review. State v. Lisenby, 306 So.2d 692 (La.1975); State v. Vince, 305 So.2d 916 (La.1974); State v. Gilbert, 286 So.2d 345 (La.1973); State v. Howard, 283 So. 2d 199 (La.1973). Only where the allegation is that there is no evidence of the crime charged or an essential element thereof is an error of law presented for our review. La.Code Crim.P. art. 858. However, since this case involves the death penalty, we have decided to treat it as if defendant had made such an allegation.

Defendant was charged with first degree murder in violation of La.R.S. 14:30(3) which provides in pertinent part:

First degree murder is the killing of a human being:
(3) Where the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or

We will proceed to briefly review the evidence presented at trial for the purpose of determining whether there is some evidence of each element of the crime charged.

The alleged murder took place on July 18, 1974 on tier “B” in the maximum security area of the state penitentiary at Angola. In this area, prisoners are assigned individual cells. There are fifteen cells on each tier. The doors of said cells are controlled from a panel located outside the bars which separate the tier from the rest of the prison. An outer door permits entry into the tier through the bars. The cells are in a straight line and numbered numerically from the outer door. The alleged murder occurred during the feeding of the noon meal. Meals are served to these prisoners in their cells. Each day, “two inmates to feed” are chosen by the prisoners on the tier. One of these prisoners pushes' a three-leveled cart containing food trays down a corridor adjacent to the cells. He is followed by the other prisoner who serves milk and Kool-Aid. Two guards station themselves outside the outer door and from that position open and close the cell doors one at a time as the food cart is pushed past each cell. When a cell door is opened, the prisoner comes out, secures a tray from the cart, goes back into the cell and then the door is locked behind him.

On the day in question, Claude Woods and Harry Johnson were designated from tier “B” as the “inmates to feed.” Woods proceeded first, pushing the cart, while Johnson followed serving the drinks. On reaching cell 12, located about fifty feet from the outer door, Sgt. Ted J. Mitchell, one of the guards, opened the cell door, and James Hodges, the prisoner occupying that cell, took one step out and reached down to get his tray. At that time, Woods pulled a knife from his clothing and stabbed Hodges in the back. Sgt. Mitchell testified that he saw Woods stab Hodges about ten times. The victim tried to escape but was unable to do so. Sgt. Mitchell shouted for them to stop, while the other guard on duty, Sgt. Leon Blades, after seeing Woods stab Hodges three times, sought assistance. Immediately after the stabbing, Sgt. Mitchell observed Woods place the murder weapon through the bars of his cell into a box located therein. Doors of the cells assigned to Woods and Johnson were opened, and the two prisoners were ordered inside. They complied and the doors were locked behind them. The victim was found lying on the floor of the corridor between cells 8 and 9. He was flat on his back and gasping for breath. The victim was checked for weapons and thereafter removed on a stretcher to the hospital. No weapons were found on his person. Sgt. Mitchell recovered the knife from the box inside defendant’s cell. Woods was stripped and searched for possible possession of other weapons. He was also examined for bruises or lacerations but none were found. The cells of both Hodges and Woods were thoroughly searched, as well as the area where the assault had taken place, but no other weapon was discovered.

At trial, the knife was identified by the guards as the one recovered from defendant’s cell. Testimony of other guards, who appeared on the scene after the stabbing, corroborated the testimony of Sgts. Mitchell and Blades as to the investigation that took place after the incident. The coroner also testified that he performed an autopsy on Hodges on July 18, 1974 and found twelve stab wounds on decedent’s body, two of which were fatal. The nature of these wounds are compatible with that which could be inflicted by the use of the murder weapon. Death was caused from a combination of bleeding into the chest cavity and the heart sac. This was a result of the fatal wounds found on the surface of decedent’s body. The coroner also testified that death occurred ubout five minutes after infliction of the wounds.

In connection with the testimony of the clerk of court of West Baton Rouge Parish, certified copies of records involving defendant’s previous murder conviction and sentence of life imprisonment were introduced into evidence. Defendant was also personally identified as the same person involved in the prior proceeding. Likewise, his fingerprints were found to be the same as the ones secured from him in connection with the earlier proceeding. The defense rested without offering any evidence.

After reviewing the record, we are convinced that there is ample evidence to support each element of the crime charged. Hence, there is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

This assignment of error was neither briefed nor argued in this court. Ordinarily, we would consider it abandoned; however, again, for the reason that this case involves the death penalty, we have decided to review the alleged error as if it had been urged on appeal.

Defendant objected to the introduction in evidence by the state of evidence of defendant’s prior murder conviction as being in violation of La.R.S. IS :495. Defendant urged that, under this statute, evidence of a former conviction is admissible only for the purpose of impeaching the credibility of a witness and, since defendant did not take the stand, it was reversible error for the state to have offered such evidence.

As previously indicated, defendant was charged with first degree murder in violation of La.R.S. 14:30(3), which provides in pertinent part:

First degree murder is the killing of a human being:
(3) Where the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or

Clearly, proof that the accused has “previously been convicted of an unrelated murder or is serving a life sentence” is an essential element of the crime charged. Hence, evidence of the former conviction is relevant and material. It was not offered for the purpose of impeaching the credibility of defendant. Rather, it was offered to prove an essential element of the crime charged, i. e., that the accused has “previously been convicted of an unrelated murder or is serving a life sentence”; therefore, it was admissible in evidence. See State v. Woodfox, 263 La. 935, 269 So.2d 820 (1972). Under the circumstances, we find no violation of La.R.S. 15:495. Assignment of Error No. 2 is without merit.

DECREE

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

DIXON, J.,

concurs but is of the opinion the death penalty in Louisiana is unconstitutional.


author: SANDERS, Chief Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Melvin McCRAY.
    No. 56735.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Concurring Opinion Jan. 2, 1976.

      Louis A. Heyd, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Melvin McCray, with pandering in violation of LSA-R.S. 14:84. After trial, the jury returned a verdict of guilty as charged, and the judge subsequently sentenced the defendant to five years imprisonment at hard labor. On appeal to this Court, he relies upon nine assignments of errors for a reversal of his conviction and sentence.

We find reversible error in none of them, and, accordingly, we affirm the conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Assignment of Error No. 1 is a complaint about testimony of Yvonne Bailey, the prostitute whose earnings are involved in the instant case, to the effect that she was frightened while working for the ac-’ cused and that he frequently threatened her with bodily harm to herself and her family. Defendant also complains of the prosecutor’s statement to Miss Bailey asking her to speak loudly in spite of her fear. Assignment of Error No. 2 concerns the exhibition of and testimony by Miss Bailey about a “pimp stick” with which she claimed the accused beat her.

Defense counsel did not object to the prosecutor’s remark referring to Miss Bailey’s fear. He did make two objections to Miss Bailey’s testimony about being threatened, but he failed to state any grounds therefor; in any event, these two objections were sustained and the testimony stricken. He made no objections to the remainder of her testimony on this issue or to her testimony about having been beaten with the “pimp stick” and her description of it. Defense counsel only objected much later when the State attempted to introduce the “pimp stick” into evidence.

Because defense counsel failed to timely object to the testimony about which he now complains, and to state grounds for the few objections he did make (which were sustained), we cannot consider these alleged errors on appeal under Article 841 of the Louisiana Code of Criminal Procedure. See, e. g., State v. Varice, La., 292 So.2d 703 (1974); State v. Curry, 262 La. 616, 264 So.2d 583 (1972).

ASSIGNMENT OF ERROR NO. 3

The defendant contends that the trial court committed reversible error in refusing to allow the defense attorney to cross-examine the prostitute, Miss Bailey, about charges pending against her and whether or not she had been brought to trial on those charges.

We hold that under Article 841 of the Louisiana Code of Criminal Procedure, the defense failed to preserve this alleged error for appellate review because he failed to object to the judge’s ruling sustaining the State’s objections to his questions. We infer from this failure to object that the defense acquiesced in the trial judge’s ruling. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 4

Appellant argues that the trial court erred in not sustaining his objection to the introduction of photographs of Miss Bailey and three other girls who worked for the accused on the grounds that they were irrelevant. In brief to this Court, he also argues that they were introduced without a proper foundation and without prior notice to the defendant of the State’s intention to introduce evidence of other crimes of a like nature as is required under State v. Prieur, La., 277 So.2d 126 (1973).

No objection was made to the photographs when they were shown to Miss Bailey and described by her before the jury. Throughout the course of her testimony, both before and after her identification of the girls in the photographs, she testified concerning the activities of the other girls who worked as prostitutes for the accused, who were depicted with her in the photographs, and the defense objected to none of this testimony.

Under these circumstances, we hold that the defendant’s objection, coming as it did after all of this evidence had been presented to the jury, was untimely and cannot be considered by this Court on appeal. LSA-C.Cr.P. Art. 841. Nor is the argument advanced by the defense based on alleged non-compliance with the holding in State v. Prieur, supra, properly before this Court, since it was raised for the first time on appeal and was thus not timely presented to the trial judge for his consideration. See, e. g., State v. Sonnier, La., 317 So.2d 190 (1975).

ASSIGNMENT OF.ERROR NO. 5

Appellant contends that the trial court erred in permitting Miss Bailey and Detec-i tive Gustave Thomas to testify before the jury about the role allegedly played by the trial judge in the initiation of the investigation which resulted in the accused being charged and brought to trial. Citing Article 772 of the Louisiana Code of Criminal Procedure, the defendant argues that this testimony indicated that the presiding judge approved of and believed Miss Bailey’s testimony, and the defendant was prejudiced by that inference being drawn before the jury.

The pertinent events commenced on July 18, 1974, when Miss Bailey was arraigned. She called her parents in New York and told them about the circumstances of her work as a prostitute for the accused and her fear for their safety and her own. Apparently, her mother telephoned the trial judge, seeking his help, and told him that her daughter was afraid for her life and needed someone to whom she could safely talk. The judge brought her into his chambers and assured her that she was safe and that if she wanted to bring charges against McCray, she could do so. After the judge heard her statement, he called Gustave Thomas, an investigator from the district attorney’s office, to his chambers and told him that Miss Bailey was seeking protection. Detective Thomas took her into protective custody, and she subsequently brought charges against McCray. The following day, the judge granted her request to fly home to New York, at her parents’ expense, until the trial.

The defense made only two objections to any of this testimony, and these were based solely on the ground that portions of the testimony were hearsay. The second objection was sustained. We note also that the defense attorney actually elicited much of the testimony about which he now complains in his own cross-examination of Detective Thomas. Thus, under Article 841 of the Louisiana Code of Criminal Procedure, the contentions now made cannot prevail upon appeal.

ASSIGNMENT OF ERROR NO. 6

Defendant here complains of the trial judge’s ruling qualifying Officer Paul Me-lancon of the New Orleans Police Department Vice Squad as an expert in the area of pandering and allowing him to testify about the investigation, identification, and modus operandi of panderers. Defendant asserts that pandering is not a subject about which expert testimony is needed, that the testimony was irrelevant and immaterial, and that it was highly prejudicial. He especially complains about the officer’s description of a prototype panderer’s use of heroin when there was no evidence in the record that the defendant had been involved with narcotics activities.

The only reférence to narcotics activities of panderers by Officer Melancon was as follows:

“ . . . He sees her and takes this opportunity to move in and take advantage of this type of female and bring her to his place and promises her food and clothing or a new car or heroine [sic] and persuades her and lets her think he is a big time spender from the East.” (Tr. p. 90).

Because defense counsel failed to object to this remark, it is not properly before us on appeal. See LSA-C.Cr.P. Art. 841 and cases cited supra.

Neither do we find reversible error in defendant’s other argument. Officer Melancon testified that he had been assigned to the Vice Squad for approximately six years. He had participated in “a couple of hundred” cases dealing primarily with panderers and had been qualified as an expert on ihe subject before several sections in Orleans Parish Criminal District Court and in one section of Federal District Court. He successfully completed a course in vice at the police academy in St. Petersburg, Florida, and is currently an instructor on that subject in New Orleans. This record was certainly sufficient for the court to find him qualified as an expert witness.

It was the State’s position at trial, and is the State’s position on appeal, that Officer Melancon’s testimony was highly relevant in establishing the modus operandi of panderers, which is similar throughout the country. The trial judge accepted this argument in his ruling, stating:

“ . . . His testimony will or should not convict the defendant. As I pointed out the court will charge the jury. The man may enlight[en] them as to the [mode] and operations of certain people in certain trades or fields. . . . ” (Tr. p. 88).

In his per curiam, the judge further stated :

“The testimony demonstrates nothing more than the opinion of a qualified expert and his testimony demonstrated the expertise. The jury determines the weight or effect to give.”

We find no error in this ruling. Hence, the assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant alleges that the trial court erred in allowing the State to exhibit three guns to the jury. The guns were presented to Miss Bailey during her testimony for identification purposes. She identified the guns, described them, and stated that they were kept in the house by the accused “all of the time.” She also testified that she had watched him beat a girl with one of the guns and threaten to shoot her with it. The defense did not object to this testimony. The failure to object constitutes a waiver of the alleged error under Article 841 of the Louisiana Code of Criminal Procedure.

ASSIGNMENT OF ERROR NO. 8

Appellant contends that the trial court erred by “not acting ex proprio motu to bar extremely prejudicial hearsay and’ irrelevant testimony from being presented to the jury.” He also contends that the trial court did not properly admonish the jury to disregard irrelevant evidence, testimony, and exhibits. Citing LSA-R.S. 15:275, the defendant contends that the trial judge abused the discretion vested in him to stop the prolonged, unnecessary, and irrelevant examination of witnesses, though no objection was made.

LSA-R.S. 15:275 provides:

“In the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel.”

This statute grants the judge the authority to require that a criminal proceeding be conducted in an orderly and expeditious manner. See also LSA-C.Cr.P. Art. 17.

This complaint sets forth no reviewable error. LSA-C.Cr.P. Art. 841.

ASSIGNMENT OF ERROR NO. 9

Finally, defendant argues that the trial court committed reversible error in denying his motion for a new trial based on the ground that the verdict was contrary to the law and the evidence and that the jury was prejudiced by the allegedly inflammatory exhibits and the testimony of the expert witness.

It is well established that the refusal of a trial judge to grant a motion for a new trial based on an allegation that the verdict was contrary to the law and the evidence presents nothing for this Court’s review. See, e. g., State v. Lisenby, La., 306 So.2d 692 (1975). A motion for a new trial based on an allegedly prejudicial error must be granted only when “[t]he court’s ruling on a written motion, or on an objection made during the proceedings, shows prejudicial error.” LSA-C.Cr.P. Art. 851. As heretofore noted, the defense did not object contemporaneously to the allegedly inflammatory evidence of which he now complains. See State v. Hoover, 257 La. 877, 244 So.2d 818 (1971).

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

DIXON, J., concurs.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice

(concurring).

Defendant McCray complains in Assignment of Error No. 2 of the exhibition of and testimony about a “pimp stick” with which the accused allegedly beat a witness. The majority refuses to consider this assignment because it feels that defense counsel did not timely object to the exhibition of the object and the testimony about it. The majority states that “defense counsel objected [only] much later when the State attempted to introduce the ‘pimp stick’ into evidence.” Defense counsel, however, did make timely objection to the exhibition of the “pimp stick” the very first time it was shown to the jury. Since the record reflects timely objection by defense counsel of the exhibition of the object in question, I feel that the Court should have examined the merits of this argument. .

When I examine the merits of the assignment, however, I find no error in the judge’s ruling to allow the object to be exhibited to the witness and to be questioned about its use. The witness was explaining the circumstances surrounding her involvement in defendant’s commission of the crime of pandering. The threats and beating of her by the defendant and her fear of further cruelty were one continuous transaction with the offense with which defendant was charged, and were therefore admissible as part of the res gestae. R.S. 15:448; State v. Jefferson, 284 So.2d 882 (La.1973). Admission of this evidence, therefore, was not error.

Defendant McCray complains in Assignment of Error No. 6 of the qualification of a police officer as an expert in the area of police investigation into the operation of panderers. I have serious doubts about the correctness of allowing the judge’s ruling to stand. An expert can be qualified only “[o]n questions involving a knowledge obtained only by means of a special training or experience.” R.S. 15 :464. The subject matter must be “so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman.” McCormick, Law of Evidence § 13, at 28 (Hornbook Ed. 1954). Although I am not prepared at this time to insist that the judge’s qualification of an expert in the field of police investigation into pandering was reversible error, I do have reservations about that ruling. Therefore, I respectfully concur.

A. Yes.
Q. I show you what has been marked as state’s exhibit number 2. Would you take a look at that?
BY DEFENSE COUNSEL: Your Hon- or, I would first state my objection to the attempt to offer that piece of wire in evidence for the reasons we have had discussions in chambers that that should not be in the courtroom. There is no warant [sic] for it being in here as for (sic) as I am concerned. I Object to that being in evidence.”

      . “Q. I asked you previously what a pimp stick is?


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Ronald G. MOUTON.
    No. 57057.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Thomas E. Guilbeau, Lafayette, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   DENNIS, Justice.

Defendant, Ronald G. Mouton, was charged by bill of information with armed robbery, in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged and was subsequently sentenced as a multiple offender to serve fifty years at hard labor. On appeal, he relies upon five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in denying his motion for a new trial on the ground that there was no evidence to support an essential element of the crime charged, viz., the element of theft. When a defendant in a motion for new trial alleges there is no evidence to support an essential element of the crime charged, assigns as error the overruling of the motion, and makes the transcript of evidence a part of the assignment, a question of law is raised for review by this Court. State v. Owens, 301 So.2d 591 (La.1974).

The victims, Debbie Gautreaux and Dwight Mouton, testified that on the night of the robbery defendant visited their trailer in the company of several others and inquired about purchasing some drugs. They told defendant that they had nothing to sell and he left. Minutes later, defendant returned, alone and armed with a shotgun, demanding that he be given either drugs or money. He struck Dwight Mouton twice, in the leg and forehead, took $185.00 from the dresser and a .38 caliber pistol from Ms. Gautreaux’s purse, and left.

Hence, the record contains ample testimony to establish that there was a theft. Defendant, however, argues that this testimony was completely refuted by the divergent view of the facts which he related on the stand. Thus, it appears that defendant is challenging not the alleged lack of evidence presented by the State but the sufficiency of that evidence, which is not reviewable on appeal. State v. Barnard, 287 So.2d 770 (La.1973). This assignment, therefore, is without merit.

ASSIGNMENTS OF ERROR NOS. 2 and 3

These assignments relate to exchanges which occurred during trial between the victim, Dwight Mouton, and defense counsel in which Dwight Mouton said he heard the defendant had shot somebody with the victim’s pistol after the alleged robbery. Defense counsel failed to object to this testimony, and, in fact, encouraged the witness to repeat it. Defendant assigns as error both the failure of his counsel to object and the failure of the trial judge to instruct the jury to disregard the remarks.

La.Code of Criminal Procedure, Article 771 provides, in pertinent part:

“In the following cases, 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:
;jc ‡ ‡ ‡ :J<
“(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 thát an admonition is not sufficient to assure the defendant a fair trial.” (Emphasis added.)
Absent a request by the defendant or the state, the court is not required to act. Furthermore, the trial judge justifiably may have been reluctant to ex proprio motu curtail testimony elicited by defense counsel on the grounds that it was prejudicial to the defendant. The error was waived by counsel’s failure to timely request an admonition or move for a mistrial. La.C.Cr.P. art. 771. See La.C.Cr.P. art. 770, comment (b).

Defendant’s complaint based on his counsel’s failure in this regard amounts to an assertion that he was represented by incompetent counsel. However, a defendant is presumed to concur in the acts and choices of his counsel:

“While an accused may easily be informed of or educated in some of his fundamental rights and options, such as the right to assistance of counsel, the right to a speedy trial, and the right to exercise the privilege against self-incrimination, such education is not possible when it comes to the intricate and numerous rules governing trial by judge or jury. Consequently, during the course of trial, a defendant must rely upon his counsel, and the acts and choices of counsel are deemed to be those of the defendant himself.” State v. Marcell, 320 So.2d 195, 198 (La.1975).

The proper remedy, should defendant wish to avail himself of it, is through a writ of habeas corpus:

“Where it appears that counsel has failed in his professional duty toward a defendant, our system affords a defendant relief through a writ of habeas corpus alleging incompetent or ineffective counsel, in effect the deprivation of the right to the assistance of counsel. Competence or incompetence of that counsel is not before us in this appeal.” Id.

These assignments are not reviewable by this Court.

ASSIGNMENT OF ERROR NO. 4

During the cross-examination of defendant, the following question was propounded by the district attorney:

“You have been sitting here all day listening to everybody else testify, huh?”

Defense counsel objected on the grounds that the question was argumentative, and the court overruled the objection. However, the defendant never answered the question, and the district attorney immediately proceeded to question him on another subject.

Defendant now claims that the remark was so prejudicial as to require a mistrial under La.C.Cr.P. art. 770. This argument is without substance. As noted above, comment (b) to Article 770 provides: “A failure to move for a mistrial is a waiver of the error, since this article requires a motion by the defendant.”

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 5

Finally, defendant argues that the court erred in allowing the prosecutor to direct rhetorical questions toward one of the jurors in an attempt to discredit defendant’s testimony.

Once again, defendant failed to contemporaneously object to the alleged error, and thereby waived his right to subsequently attack his conviction on these grounds. La.C.Cr.P. art. 841.

Nevertheless, we find that the prosecutor’s tactic did not appeal to prejudice, and was merely a reply to defendant’s closing argument, within the scope of La. C.Cr.P. art. 774.

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


text:
    STATE of Louisiana v. Glynn J. JONES.
    No. 56847.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Nicholas Noriea, Jr., Asst. Dist. Attys., for plaintiff-relator.
    John C. Reynolds, Donald E. Theriot, Reynolds, Nelson & Theriot, J. Daniel Rivette, New Orleans, for defendant-respondent.
   SUMMERS, Justice.

Defendant Glynn J. Jones entered a guilty plea on July 29, 1975 to a charge of simple burglary of an automobile. La.R.S. 14:62. He was sentenced to serve three, years at hard labor, but the sentence was suspended and defendant was placed on inactive probation for five years (later amended to active probation) upon condition that he serve one full year in parish prison. La.Code Crim.Pro. art. 895B.

Thereafter, on August 7, 1975, the District Attorney filed a multiple offender bill based upon the authority of Section 529.1 of Title 15 of the Revised Statutes. Therein it was alleged that defendant had previously pled guilty on November 26, 1969 to a charge of attempted armed robbery, a felony under the law of Louisiana, at which time he was sentenced to serve two years at hard labor. La.R.S. 14:27, 64. In this multiple offender bill the District Attorney suggested that defendant’s punishment should be enhanced in conformity with Section 529.1 of Title 15 of the Revised Statutes as both crimes were felonies.

Accordingly, on September 5, 1975 defendant was tried and found guilty as a second offender, his previous sentence of July 29, 1975, was vacated, and he was sentenced to serve three years at hard labor; further, the execution of the sentence was suspended, and he was placed on active probation for five years, a special condition of probation required that defendant be imprisoned for one year without hard labor, with credit for time served since June 7, 1975.

The State then applied to this Court on September 10, 1975 for certiorari, complaining that the trial judge was without authority to suspend a sentence imposed because of a multiple offense conviction under the authority of Section 529.1 of Title 15 of the Revised Statutes. While the proper procedure prescribed by Article 882 of the Code of Criminal Procedure was to appeal this case, when the writ application is filed within the delay provided for appeal, we will treat the application as the timely lodging of an appeal. La.Code Crim. Pro. art. 914.

The language of Section 529.1 of Title 15 is quite explicit. Insofar as it is pertinent here, it provides:

“A. . Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state upon conviction of said felony shall be punished as follows :
“(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction . . . ”

The penalty for simple burglary, the July 29, 1975 conviction and the second felony referred to above, is imprisonment at hard labor for not more than nine years. La.R.S. 14:62. Conviction of an attempt to commit simple burglary must not exceed one-half of the longest term of imprisonment for the offense so attempted. La. R.S. 14:27. Therefore, the trial judge was authorized to sentence defendant to serve three years at hard labor, a sentence not exceeding one-half of nine years, and a sentence falling within the limits prescribed by Sections 27 and 62 of Title 14 of the Revised Statutes.

Thus, when at the trial of the multiple offender charge the trial judge vacated the sentence for the July 29, 1975 conviction, the sentence to imprisonment on the multiple offender charge was required to be “for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction.” La.R.S. 15:529.1A(1). The trial judge complied with this mandate by sentencing defendant to imprisonment for three years at hard labor — not less than one-third of the maximum term of four and one-half years prescribed for attempted simple burglary. La.R.S. 14:27, 62.

However, nowhere in the multiple offender statute is language found authorizing the suspension of any sentences prescribed there. If the trial judge’s suspension of defendant’s multiple offender sentence is to be upheld, other authority must be found for the action. In the response of the trial judge,' and in the defense brief, reliance is placed upon Article 893 of the Code of Criminal Procedure, which is quoted in full:

“When it appears that the best interest of the public and of the defendant will be served, the court, after conviction of a felony for which the punishment is with or without hard labor or a felony which is a violation of the Controlled Dangerous Substances Law of Louisiana, noncapital felony, may suspend for the first conviction only the imposition or execution of any sentence, where suspension is allowed under the law and in either case place the defendant on probation under the supervision of the division of probation and parole supervision. . The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.
“The court under the same conditions and by the same procedure as provided for above may suspend the execution or imposition of the sentence of a multiple offender and place the defendant on probation if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs, however if for any reason the defendant is rejected by said program he shall be returned to the custody of the court which imposed the sentence and the sentencing judge shall order the sentence be executed. Rejection by said program shall be a violation of the defendant’s suspended sentence.
“If the sentence consists of both a fine and imprisonment, the court may impose the fine and suspend the sentence or place the defendant on probation as to the imprisonment.
“The court shall not suspend a felony sentence after the defendant has begun to serve the sentence.
“When the imposition of .sentence has been suspended by the court, as authorized by this article, and the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution and the dismissal of the prosecution shall have the same effect as acquittal, except that said conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumu-lation of offenses.”

The first impression gained from a reading of this Article as it applies to the instant case is that after a conviction of a noncapital felony a judge may suspend “for the first conviction only” the imposition or execution of the sentence “where suspension is allowed under the law.”

Insofar as the first paragraph of the Article is concerned, the quoted phrases do not support the suspension of the enhanced penalty. Suspension is allowed “for the first conviction only,” which means that this second offense is not susceptible of suspension. And, then, suspension is not permitted except “where suspension is allowed under the law.” As already noted, Section 529.1, the multiple offender statute, under which defendant must be sentenced since he has been convicted as a second offender, does not allow suspension of sentences.

The trial judge and the defense contend, however, that authority for the suspension may be found in the second paragraph of Article 893, which permits suspension of a multiple offender’s sentence and allows him to be placed on probation “if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs.” (emphasis added.)

The argument in this regard is that the Louisiana Department of Probation and Parole is a State rehabilitation program within the contemplation of Article 893 and, therefore, when a convicted second offender is placed on active probation he participates “in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs.”

This argument does not take into consideration the meaning of the Article when read as a whole. When the article provides for suspension “for the first conviction only” a general limitation is placed upon the authority of courts to suspend sentences. If the second paragraph was not confined to narcotic rehabilitation programs and suspension of second offender sentences was thereby authorized whenever the defendant was placed on probation and required to participate in any rehabilitation program, state or federal, not limited to narcotic programs, the limitation upon suspension “for the first conviction only” contained in paragraph one would be rendered meaningless. The general state probation system is not within the contemplation of the second paragraph. The language of the second paragraph by its context and its total structure contemplates participation in special state programs for narcotic rehabilitation.

The Court is aware of the programs for rehabilitation referred to in the defense brief and the view expressed concerning those programs. Without further comment on these arguments, it should be pointed out that the Louisiana Legislature has not, in this instance, declared that suspension is permitted for enhanced penalties, except where narcotic rehabilitation is involved. Furthermore, the total absence of authorization for suspension of sentences in the multiple offender statute militates against the defense contention.

Therefore, the Court is of the opinion that the authority to suspend a felony conviction is limited to the first conviction only, except when a defendant is placed on probation to participate in a narcotic rehabilitation program.

In his per curiam the trial judge submits that notwithstanding that Article 893 does not authorize suspension of sentences imposed for second offenses, except when the defendant is placed on probation for participation in a program of narcotic rehabilitation, the Article is unconstitutional in that it fails to set forth any type of proceeding to determine whether the defendant is, in fact, a second or multiple offender; nor does it set forth any time limitation or prescriptive period for such a determination. Of course, if the Court finds the Article to be unconstitutional the defendant’s position is not improved, for in that case there would be no authority whatsoever for suspension of a multiple offense sentence. In that situation, no authority would exist for the suspension the trial judge sought to grant. Under the circumstances, the Article’s constitutionality should not be questioned when those who urge its unconstitutionality are not in a proper posture to do so, and when another ground has been found to dispose of the only contention raised by the application for writs.

For the reasons assigned, the judgment of the trial court, insofar as it suspends the sentence imposed, is reversed and set aside, and the case is remanded to the trial court with instructions to correct the sentence in a manner not inconsistent with the views expressed. La.Code Crim.Pro. art. 882.

DIXON, J., dissents.


author: TATE, Justice..

text:
    STATE of Louisiana, Respondent, v. Lawrence BATISTE, Relator.
    No. 56679.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Charles W. Seaman, Kelly, Seaman & Ware, Natchitoches, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Andrew S. Vallien, Asst. Dist. Atty., for plaintiff-respondent.
   TATE, Justice..

We granted certiorari, 319 So.2d 450 (1975), primarily to review the contention that the defendant was convicted of driving while intoxicated, La.R.S. 14:98(B), on the basis of inadmissible evidence. The defendant also contends that a motion for directed verdict was erroneously denied.

(1)

The objected to evidence consisted of the results of a Photo-Electric Intoxi-meter (PEI) test designed to measure the alcohol concentration in the accused’s blood at the time of arrest. Such tests, if conducted in accordance with administratively approved methods by a validly licensed operator, may give rise to a presumption of the intoxication of the accused at the time of the test. La.R.S. 32:662, 663 (1968).

The accused contends that, in the present case, the test was improperly received into evidence over his objection that legally sufficient evidence did not prove that the operator was licensed and qualified to conduct the test.

Before introducing the test, the state by way of predicate attempted to establish that the witness was a qualified photoelectric intoximeter operator. On cross-examination during the predicate, the witness was asked if he had a valid and current permit and to produce it. The witness stated that he had a permit, but that he did not have it with him.

The defendant thereupon objected to any testimony by the witness as to the result of the PEI test. He further objected to the introduction of the result until a proper foundation for its admission was laid by proving that the witness had a permit evidencing that he was qualified to conduct tests.

The trial court overruled both objections. He further ordered that the test be filed. The witness testified as to the result of the test; it showed an alcoholic content of the blood which gave rise to the statutory presumption of intoxication.

Under the statute, a chemical test giving rise to such a virtually 'indisputable presumption is not admissible unless “performed according to methods approved by the state department of health and by an individual possessing a valid permit issued by the state department for this person.” La.R.S. 32:663. (Italics ours.) Upon timely objection to the qualification of the operator, a PEI test is not admissible in a criminal prosecution unless ■ the operator physically produces the official certification showing that he possessed a valid permit qualifying him to administer the test at the time it was made. City of Monroe v. Robinson, 316 So.2d 119 (La.1975); State v. Jones, 316 So.2d 100 (La.1975). As these cases indicate, the valid permit itself, not the witness’s oral claim he has one, is required as the best evidence, in accordance with the strict legislative requirements for the use of such a test.

The trial court thus erred in admitting into evidence the PEI test, in the face of a timely objection by the defendant that the predicate of a valid permit by the operator had not been proved. La.R.S. 32:663; City of Monroe v. Robinson and State v. Jones, cited above (but reported subsequent to the trial court’s decision below).

We are unable to attach any weight to a minute entry, made after the trial and conviction, which states that, after the court had overruled the objection, “the state offered in evidence the results of the test, but it was not filed.” The test may not physically have been filed in the trial record after the court ordered its admission and filing. Nevertheless, the operator testified to the results of the test. These results, indicating intoxication, were a substantial part of the evidence found admissible by the trial court upon which its verdict of guilty was based.

We must therefore reverse and remand for a new trial.

(2)

The motion for directed verdict was properly denied.

There was some evidence to sustain the conviction, even if improperly admitted. State v. Butler, 322 So.2d 189 (La.1975) (syllabus 8). That is, although improperly admitted evidence may require a new trial, it doés not require a directed verdict of acquittal (which would prevent a re-trial for the offense by reason of the former jeopardy resulting in the first trial).

Further, insofar as the accused contends that the state did not bear its burden of proving venue in the parish, La. Const. art. 1, sec. 16 (1974), La.C.Cr.P. art. 611, 615 (1966), the arresting police officers testified as to the street locations of the offense. The officers did not specifically testify that these street locations were in the city of Natchitoches. Nevertheless, the trial court did not err in taking judicial notice of the geographic fact of the Natchitoches location of these streets, proving proper venue in Natchitoches parish. La.R.S. 15:422(6); State v. Jackson, 308 So.2d 265 (La.1975); State v. Richard, 245 La. 465, 158 So.2d 828 (1963); Poland v. Dreyfous, 48 La.Ann. 83, 18 So. 906 (1896).

Decree

Accordingly, we set aside the conviction and sentence, and we remand this case to the district court for a new trial in accordance with law.

Reversed and remanded.

SANDERS, C. J., and SUMMERS, J., dissent.


author: SMITH, Judge.

text:
    William David OWENS, Jr., et al., Plaintiffs-Appellants, v. MARYLAND CASUALTY COMPANY, INC., Defendants-Appellees.
    No. 12817.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 11, 1976.
    Donald R. Miller, Shreveport, for plaintiffs-appellants.
    Cook, Clark, Egan, Yancey & King by Sidney E. Cook; Shreveport, for defendants-appellees.
    Before BOLIN, PRICE, and SMITH, JJ-
   SMITH, Judge.

Suit was filed by William David Owens, Jr., individually and for and on behalf of his minor son, Michael W. Owens, against Cecil T. Chandler, driver of a dump truck, Bossier Parish Police Jury, his employer, and Maryland Casualty Company, insurer of the Bossier Parish Police Jury. The case was tried before a jury at the request of plaintiffs and the jury rejected plaintiffs’ demands. We affirm.

Plaintiffs sought damages for personal injuries and related expenses resulting from the collision of Michael Owens’ Honda 175 motorcycle and a dump truck belonging to the Police Jury. The accident occurred August 2.6, 1970 on a two-lane blacktop rural road in Bossier Parish designated as Highway 612 and known as the Sligo Road. Owens was traveling in an easterly direction with another 15 year old boy riding behind him on the motorcycle. As he approached the intersection of a road leading south into the Montgomery Plantation from Highway 627, the dump truck, operated by Cecil Chandler, was slowing to make a left turn ahead of him. The motorcycle struck the rear bed of the truck causing serious injuries to Owens and his passenger.

The preponderance of the evidence shows the speed of the motorcycle was between 60 and 65 miles per' hour as it rounded the curve and crossed the bridge just prior to the accident. Owens took no precautionary measures on seeing the loaded truck which was obviously slowing for some purpose. Although it is a point of dispute, the preponderance of the evidence shows the left turn indicator of the truck was on at the time it began the turn. The jury could reasonably find that the motorcycle was not already in the passing lane when the truck began to turn and that because of its speed, the truck driver would not necessarily have seen the motorcycle if he looked to his rear prior to the beginning of his left turn. Owens was at least guilty of contributory negligence which was properly pled in the alternative.

It is not necessary to determine the nature of the road into Montgomery Plantation since it is not critical to the issue of negligence whether the road was a public or private road.

Whether the motorcycle was passing in a prohibited zone is not the underlying basis of Owens’ negligence. He was not operating his motorcycle at an appropriate speed and did not use reasonable care, in view of the circumstances, after sighting the truck. The jury could have reasonably believed that Chandler was not guilty of any negligence or that Owens was contributorily negligent.

There appears to be no manifest error shown by the evidence in the record, and the judgment is affirmed at appellants’ cost.