author: MARCUS, Justice. DENNIS, J.,

text:
    Leighton LOTT v. T. J. HALEY, M. D., J. Ray McDermott Company, Aetna Casualty & Surety Co.
    No. 63327.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.

      Alvin J. Bordelon, Jr., Andrew P. Carter, Monroe & Lemann, New Orleans, for plaintiff-applicant.
    John V. Parker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, amicus curiae for Louisiana State Medical Society.
    Robert D. Bjork, Jr., Adams & Reese, New Orleans, for T. J. Haley and Aetna Casualty and Surety Co.
    John J. Weigel, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for J. Ray McDermott Co.
   MARCUS, Justice.

On March 21, 1977, Leighton Lott filed suit for damages against Dr. T. J. Haley and J. Ray McDermott Company. Subsequently, Aetna Casualty & Surety Company, medical malpractice insurer of Dr. Haley, was also made a party defendant.

It is alleged that on January 21, 1972, plaintiff underwent a medical examination by Dr. Haley at the request of McDermott to determine whether he was physically fit to continue his employment as a deep-sea diver. Plaintiff was advised by Dr. Haley and McDermott that he was fit to continue his employment. As a result, plaintiff continued to work as a deep-sea diver for McDermott until January 1976, when he resigned from that company and began working for another company. On April 1, 1976, plaintiff procured a medical examination and was advised that he was afflicted with osteocrosis, an occupational disease, and that he would be unable to continue work as a deep-sea diver. He was further informed that he had been suffering from this affliction when examined by Dr. Haley on January 21, 1972 (some four years earlier).

It is asserted that Dr. Haley was negligent in failing to properly diagnose plaintiff’s affliction and to render timely medical care and that McDermott was negligent in failing to advise plaintiff of his affliction when it either knew or should have known that plaintiff was physically unfit for continued employment as a deep-sea diver. As a result of the alleged negligence of Dr. Haley and McDermott, plaintiff claims that he continued to work as a deep-sea diver for over four years, causing his condition to progress beyond a point of cure or possible regression, all of which precludes him from ever again working at his profession. He seeks damages in the amount of $350,000.

Dr. Haley and Aetna filed exceptions of prescription which were maintained by the trial court; plaintiff’s suit as to them was dismissed. McDermott filed an exception of no cause of action which was sustained; plaintiff was allowed twenty days to amend. Subsequently, due to plaintiff’s failure to amend his petition against McDermott, plaintiff’s suit as to McDer-mott was also dismissed. Plaintiff appealed. The court of appeal affirmed the rulings of the trial judge. On application of plaintiff, we granted certiorari to review the correctness of this decision.

PLEA OF PRESCRIPTION

Plaintiff contends the court of appeal erred in retroactively applying La.R.S. 9:5628, effective September 12, 1975, to hold that his cause of action against Dr. Haley and Aetna had prescribed. He argues essentially that retroactive application of this statute divests him of his vested right in his cause of action in violation of the due process guarantees of both the federal and state constitutions. U.S.Const. amend. XIV; La.Const. art. 1, § 2 (1974).

Prior to enactment of La.R.S. 9:5628, medical malpractice claims were subject to a one-year prescriptive period, commencing to run from the date the injured party discovered or should have discovered the existence of facts that would entitle him to bring suit. La. Civil Code arts. 3536, 3537; Cartwright v. Chrysler Corp., 255 La. 598, 232 So.2d 285 (1970). Based on this law, plaintiff’s suit must be considered timely filed since he was first apprised. of the alleged negligent act which resulted in his injuries on April 1, 1976, and filed suit within a year thereafter (March 21, 1977). However, in the summer of 1975, the legislature enacted La.R.S. 9:5628 which altered the previous law and curtailed the open-ended time limit for filing a medical malpractice suit as follows:

A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts, (emphasis added)

Applying this statute, plaintiff’s action must be considered untimely as it was filed more than three years from the date of the alleged act, omission or neglect.

Thus, the issue confronting this court is whether La.R.S. 9:5628 should be retroactively applied to this case. We think not.

La. Civil Code art. 8 provides that “[a] law can prescribe only for the future; it can have no retrospective operation, . .” Likewise, La.R.S. 1:2 states that no statute is retroactive unless it is expressly so stated. According to this court’s consistent interpretation, however, the general rule of prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive effect in the absence of language showing a contrary intention. Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978); General Motors Acceptance Corp. v. Anzelmo, 222 La. 1019, 64 So.2d 417 (1953). This jurisprudential rule is subject to the exception that procedural and remedial laws are not accorded retroactive effect where such retroactivity would operate unconstitutionally to disturb vested rights. Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972); Succession of Lambert, 210 La. 636, 28 So.2d 1 (1946); Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940).

It is well established that statutes of limitation are remedial in nature and as such are generally accorded retroactive application. State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943); Shreveport Long Leaf Lumber Co. v. Wilson, supra; DeArmas v. DeArmas, 3 La.Ann. 526 (1848). However, statutes of limitation, like any other procedural or remedial law, cannot consistently with state and federal constitutions apply retroactively to disturb a person of a preexisting right. Orleans Parish School Board v. Pittman Construction Co., supra. Nonetheless, a newly-created statute of limitation or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950); State v. Recorder of Mortgages, 186 La. 661, 173 So. 139 (1937). Moreover, the legislature is the judge of the reasonableness of the time and the courts will not interfere except where the time is so short as to amount to a denial of justice. Cooper v. Lykes, supra. Finally, where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (La.1978).

In the instant case, plaintiff’s cause of action for damages vested on January 21, 1972, the date of Dr. Haley’s alleged act of negligence giving rise to plaintiff’s injuries. This was prior to enactment of La.R.S. 9:5628 which became effective September 12, 1975. Under the law in effect prior to that date, plaintiff’s suit would have been timely filed. La.R.S. 9:5628 is a statute of limitation in that it prescribes fixed time periods for institution of medical malpractice suits. According to the general rule, statutes of limitation are accorded retroactive application. However, in the instant case, La.R.S. 9:5628 operates to eliminate plaintiff’s vested right to sue on his pre-existing cause of action without providing a reasonable period following its enactment to assert his claim. Absent such a provision, we conclude that La.R.S. 9:5628 cannot be retroactively applied in the instant case because to do so would divest plaintiff of his vested right in his cause of action in violation of the due process guarantees under the state and federal constitutions. The court of appeal erred in holding otherwise.

EXCEPTION OF NO CAUSE OF ACTION

Plaintiff contends the court of appeal erred in holding that he failed to state a cause of action against McDermott. In his petition, plaintiff alleged:

That J. Ray McDermott Company, through its officers, agents, and employees was negligent in failing to advise petitioner of his affliction when it either knew or should have known that petitioner was physically unfit for continued employment as a deep-sea diver.

The trial court sustained McDermott’s exception of no cause of action and allowed plaintiff twenty days to amend. Subsequently, due to plaintiff’s failure to amend his petition against McDermott within the time allotted, the trial judge dismissed plaintiff’s suit as to McDermott. The court of appeal affirmed, finding that plaintiff failed to state a cause of action because his petition contained only conclusionary allegations. We agree.

Our code of civil procedure sets forth a system of fact pleading. La. Code Civ.P. arts. 854, 891, 1003 and 1004. Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La.1974). Thus, in order to establish a cause of action, plaintiff must set forth in his petition specific facts in support of his claim. La. Code Civ.P. arts. 854 and 891. In the instant case, plaintiff’s allegations of negligence against McDermott contain no particular facts to substantiate his claim. Plaintiff states only that McDermott failed to advise plaintiff of his affliction when it “knew or should have known” that he was physically unfit for continued employment as a deep-sea diver. This assertion, however, is but another way of alleging that McDermott was negligent. The court of appeal correctly concluded that plaintiff failed to state a cause of action against McDermott.

DECREE

For the reasons assigned, that portion of the judgment of the court of appeal affirming the trial court’s sustaining of the exceptions of prescription filed by Dr. T. J. Haley and Aetna Casualty & Surety Company and dismissing plaintiff’s suit as to them is reversed; that portion of the judgment of the court of appeal affirming the trial court’s maintaining of the exception of no cause of action filed by J. Ray McDermott Company and dismissing plaintiff’s suit as to said company is affirmed. The case is remanded to the district court for further proceedings.

DIXON, J., concurs.

DENNIS, J.,

concurs in the decision as to the prescription question, but dissents from the holding pertaining to the exception of no cause of action.

      . 363 So.2d 1270 (La.App. 4th Cir. 1978).

      . 364 So.2d 1039 (La.1978).

      . Defendant relies upon State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943) in support of retroactive application of the statute at issue. In that case, a constitutional amendment was enacted providing for a three-year liberative prescriptive period on taxes due to the state, where none had previously existed. We held that the constitutional amendment was to be given retroactive effect. In so holding, however, we expressly noted that “[t]he constitutional objection to the . . . divesting of vested rights, has no application to a statute by which the State bars by prescription an action to recover an indebtedness which otherwise might be due to the State.”


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Michael T. BROWN.
    No. 63260.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.

      L. Paul Gianfala, Church Point, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jack Derrick Miller, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant Michael Brown was charged with second degree murder, La.R.S. 14:30.1, convicted by a jury of manslaughter, La. R.S. 14:31, and sentenced to twenty-one years imprisonment at hard labor.

In this appeal defendant argues seventeen of the twenty assignments of error filed below. We have determined that only one of these assignments merits discussion. Finding no reversible error, we affirm.

After drinking heavily throughout the day of May 25, 1977, the defendant and his half-brother, Eli Guillory, stopped at the rural mobile home of the victim, a relative of Guillory. The defendant and Guillory requested ice for their drinks, and, after the victim complied with this request, she was thrown into the back seat of the car, repeatedly forced to have sexual relations, and shot three times in the head with a .22 caliber pistol. Her nude body was left on an isolated rural road bridge several miles from Rayne, Louisiana.

The victim’s absence was reported to the police by her husband later that night, and the body was discovered by a motorist, who notified the police. The coroner extracted three small caliber bullets from the victim’s body, and a small piece of foam rubber was found in her pubic area. This information was sent out to all investigating officers by radio.

Several hours later, while a number of deputies were searching for clothing or other items of evidence near the bridge where the body had been found, the defendant drove up “weaving all over the road”. The deputies stopped the defendant and ordered him to get out of his car. As one of the officers stood near the car talking with the defendant, he casually directed his flashlight into the car and saw 2 boxes of .22 caliber bullets on the dashboard, a small caliber pistol with its handle sticking up near the console next to the driver’s seat, and pieces of broken foam all over the back seat of the car. The significance of these items was immediately apparent to the officers at the scene, and they reported their findings to the detectives in charge of the investigation, who were then searching the area near the victim’s home. A detective arrived on the scene within a matter of minutes and removed the pistol from the automobile.

The automobile itself was later impounded, and, after securing a search warrant, portions of the foam located in the back seat were taken to a technician for analysis. The .22 caliber pistol was determined to be the weapon which fired the bullets that killed the victim, and the foam found in the automobile was similar in kind to that found in the pubic region of the victim.

By assignment of error number 18, defendant argues that the trial judge erred in denying his pre-trial motion to suppress the .22 caliber pistol.

The State contends that the bullets, pistol and foam particles were lawfully seized under the “plain view” doctrine. In order for the doctrine to be applicable, there must have been a prior justification for an intrusion into a protected area, in the course of which evidence was discovered inadvertently, and it must have been immediately apparent without close inspection that the items were evidence or contraband. State v. Parker, 355 So.2d 900 (La.1978).

When an officer inadvertently observes evidence of a crime from a vantage point that does not intrude upon a protected area or when that protected area is entered with prior justification, there is no violation of the search warrant rule because there has been no “search”. State v. Parker, supra. See also State v. Bourg, 332 So.2d 235 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975). However, if the evidence is itself within a protected area, the officer may not enter the area to effect the seizure without first obtaining a warrant, absent exigent circumstances or another exception to the warrant requirement.

In the instant case the officer did not intrude upon the defendant’s protected area by flashing his light toward the automobile as he stood beside it talking with the defendant. Although there were other officers in the area, the deputy was entitled as a precaution for his own safety to a general visual survey of the vehicle from his position outside to determine if there was anyone in the car. The evidence solidly supports a finding that the officer was making such a general survey when he sighted the items rather than a close inspection for evidence. Consequently, the conclusion that the evidence was discovered inadvertently without an intrusion into a protected area is well founded upon the record.

Likewise, the finding that the items were immediately recognizable as evidence without close inspection was reasonable. At the time the bullets, pistol and foam rubber particles were observed in the automobile, the officer knew that a small caliber pistol had been used to commit the crime, and that a foam rubber particle was found on the victim’s body. The appearance of these objects at the very same isolated spot on a country road where the victim’s body had been discovered only hours before was sufficient to give the officers probable cause to believe that the items were evidence relevant to the case under their investigation.

The defendant correctly contends, however, that the State must educe additional proof to justify the subsequent seizure of the .22 caliber pistol found in the automobile. In State v. Guzman, 362 So.2d 744, (La.1978), this Court set forth the “automobile emergency” exception to the federal and state constitutional warrant requirements. Drawing on the opinion of the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) we stated:

“The cases set out two conditions that must be satisfied before a warrantless search of a movable vehicle is authorized: (1) there must be probable cause to believe that the vehicle contained contraband or evidence of a crime; and (2) there must be ‘exigent circumstances’ requiring an immediate warrantless search, i. e., the impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. An immediate warrantless search is, therefore, constitutionally permissible when ‘the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.”

See State v. Wilkens, 364 So.2d 934 (La.1978).

Under the circumstances of the instant case there was an exigency justifying an immediate seizure of the pistol. Abandonment of the vehicle at the scene of the apparent murder presented a significant possibility that its contents never may have been found again. It was the duty of the officers to promptly conduct the arrested defendant to the nearest jail or police station and cause him to be booked. La.C. Cr.P. art. 228. The officers would have been reasonable in assuming that others who may have been involved in the crime could attempt to move the car or the evidence. Accordingly, there was no practical alternative available to the officers under the exigent circumstances other than an intrusion into the arrestee’s privacy to the extent necessary to preserve the evidence which they had probable cause to believe was located inside the automobile. The fact that the entire automobile was later impounded after a search warrant was obtained does not render the officer’s initial limited intrusion unreasonable or the circumstances under which it was made less than urgent.

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

CONVICTION AND SENTENCE AFFIRMED.

      . Defendant was also indicted with the manslaughter of a fertilized implanted fetus in the womb of his victim in the present case. The defendant plead guilty to the manslaughter of the fetus and was sentenced to ten and one-half years imprisonment at hard labor. A separate appeal from defendant’s manslaughter conviction and sentence has been granted by this court. 370 So.2d 528 (La.1979).

      . We have reviewed assignments of error numbers 1-6, 8-13, 15, 17, and 19-20, and have determined that they present no reversible error.


author: PER CURIAM.

text:
    STATE of Louisiana v. Michael T. BROWN.
    No. 63408.
    Supreme Court of Louisiana.
    April 9, 1979.
    L. Paul Gianfala, Church Point, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jack Derrick Miller, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

Writ granted. The trial judge is ordered to grant petitioner an out of time appeal.


author: BLANCHE, Justice.

text:
    Terry K. STEVENS v. BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF SHREVEPORT, Louisiana, et al.
    No. 63111.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.

      Robert G. Pugh, Shreveport, for plaintiffs-respondents.
    Frederic L. Miller, Peters, Ward & Miller, Shreveport, amicus curiae for respondents Shreveport Police Officers.
    Charles C. Grubb, Neil, Dixon, Shreveport, for defendants-applicants.
   BLANCHE, Justice.

This class action suit was brought by Terry K. Stevens as representative of that class composed of all former police officers of the City of Shreveport who made compulsory contributions to the Policemen’s Pension Fund of the city and who later were separated from the Police Department prior to receiving benefits therefrom. The suit seeks to obtain refunds of the monies contributed by each of the former officers.

The case was previously before this Court on the issue of maintaining the class action, 309 So.2d 144 (La.1975). The case is now before this Court on writs granted to review the judgment of the courts below on the merits. The district court granted summary judgment for the plaintiffs and ordered the Board of Trustees of the Police Pension Fund to refund to the former officers who comprised the class the amount each had contributed to the fund. Costs and attorney’s fees were also ordered to be paid. The Court of Appeal, Second Circuit, relying upon the opinion of the Third Circuit in Hoffpauir v. City of Crowley, 284 So.2d 114 (La.App. 3rd Cir. 1973), writ den. 286 So.2d 366 (La.1973), ruled that there was no significant difference between the statute involved in this instance and the statute involved in that case; the judgment of the district court was affirmed.

The Board of Trustees sought writs, and the case is now before this Court on the issue of whether the statute creating the Police Pension Fund, LSA — R.S. 33:2351, et seq., is one which is intended to require or permit refunds. There is also the issue of the applicability of the decision in Hoff-pauir, supra. The Board of Trustees claims error in the interpretation of the statute and in reliance upon Hoffpauir.

Plaintiffs claim that the decisions below were correct, but that even if they were incorrect as an interpretation of the statute, the refusal to refund the forced contributions was in violation of plaintiffs’ constitutional rights to due process and equal protection under the constitutions of both the United States and Louisiana.

The initial question for our consideration is whether the statute, on its face, is ambiguous as to the refundability of the contributions. In addition to containing assessments from the salaries of the members of the Police Department, the fund is composed of monies from a former pension fund, court fines, licenses, privilege taxes, or permits for the sale of alcoholic beverages, as well as general alimony taxes from the municipality. LSA-R.S. 33:2353, 2355. The statute also contains the following provisions:

Section 2351:

“There is created a police pension fund for the police department of the city of Shreveport for pensioning all police officers of the police department of the city of Shreveport, their widows and children. For purposes of this Sub-part police officers shall be defined as those members of the Shreveport Police Department who meet the definition of police officers for the purpose of civil service rating and are so rated.”

Section 2353:

“All funds derived and held or invested under the provisions of this Sub-part shall be administered as a sacred trust for the sole purposes stated in this Sub-part and at no time commingled or combined with any other fund.”

Section 2360:

“The interest received from the investments after the fund has reached fifty thousand dollars or fifteen thousand dollars, as the case may be, and all money received from any source, shall be applicable to the payment of pensions and relief under this Sub-part.”

Section 2364:

This section outlines the actual pensions and benefits payable by the fund, including immediate benefits in the event of disability while in service of the department. Service in the department covers all time when a member is on the payroll, 24 hours a day. There are also benefits for those who remain with the department and who later retire. There are also benefits for widows and minor children.

We find that there are specific limitations imposed upon the use of the monies in this fund, particularly by Sections 2351, 2353 and 2360. Absent particular language in the statute providing for refund of the contributions, there can be no such use of the monies. In the respects in which this decision conflicts with the decision in Hoff-pauir, we overrule that decision.

Because of this ruling, it is necessary to consider the question of constitutionality which was raised in the district court but not considered in either court below as it was unnecessary to reach it.

Plaintiffs claim that if contributions to the Police Pension Fund, being mandatory, are non-refundable, then there is a taking of property without due process of law and without equal protection of the law.

The Police Pension Fund in question here was created by an act of the legislature; it mandates contributions on the part of officers on active service with the department. These contributions constitute a portion of the monies in the fund. In return for the mandatory contributions, an officer, while on active service with the department, is covered by benefits. As with a contract of health or accident insurance, the right to the benefits is not delayed, but is dependent upon events, such as injury to or death of the officer, which may take place from the first day of employment. If an officer retires, there are additional retirement benefits. In some of its provisions, this system is analogous to the system set up under the Social Security Act, 42 U.S.C. § 301, et seq., which is itself one which mandates contributions from the participants and which has no provision for refunds in the event that there are no claims made for the benefits thereunder.

From the first day of employment with the Police Department, plaintiffs were covered by the benefits of the fund, as they would have been covered by benefits from a contract of insurance, either private or under Social Security. Such a contract, though mandated by law, is neither invalid nor unconstitutional, since there are obligations on the part of the fund/insurer which, like obligations on a suspensive condition, nevertheless, exist. LSA-C.C. arts. 2041, 2043. Plaintiffs had insurance coverage as well as possible future retirement benefits. The taking contemplated and prohibited by the constitutional articles is a taking of private property for public use. U.S.Const. amend. V; LSA-Const. Art. 1, § 2 (1921). Here, not only is there no taking of private property for public use, since the use is for the members of the Police Department themselves, and plaintiffs received the benefits as they would have the benefits of insurance coverage, but there is no true taking at all, since the officers received a benefit, namely coverage, in return for amounts paid into the fund.

Plaintiffs have also argued the question of equal protection.

“While it is true that the plaintiffs were treated differently from certain other public employees, it does not seem to us that this difference in treatment was in any way irrational or a violation of equal protection. . . . Nor could the interest the plaintiffs assert in their contributions to the Pension Fund be though[t] of as some fundamental personal right. . . . Absent a suspect classification, or an infringement on some fundamental right, a classification is deemed permissible if it is found to have a ‘reasonable relationship’ to a legitimate governmental interest.”

Muzquiz v. City of San Antonio, 520 F.2d 993, 1001 (5th Cir. 1975), remanded for reconsideration of issues dealing with § 1983, Civil Rights Act of 1871, 438 U.S. 901, 98 S.Ct. 3117, 57 L.Ed.2d 1144 (1978).

Accordingly, the judgment of the court of appeal is reversed, all costs to be paid by plaintiffs.

REVERSED AND RENDERED.

GULOTTA, J., Justice ad hoc, dissents.

DENNIS, J., dissents for the reasons assigned by the Court of Appeal.

       Judge James C. Gulotta and Judge John C. Boutall, Louisiana Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc. Dixon, J., was recused. Marcus, J., did not participate.


text:
    STATE of Louisiana v. Earl SANDERFORD.
    No. 63245.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.
    Wilbur D. Atkins, Sr., Baton Rouge, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Mary V. Gilliland, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Earl Sanderford was charged by bill of information with manslaughter in violation of La.R.S. 14:31. After trial by jury, defendant was found guilty and sentenced to serve five years at hard labor. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

We have reviewed the record and find no merit to defendant’s assignments of error. Accordingly, we affirm his conviction and sentence.

DECREE

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


text:
    STATE of Louisiana v. Grover John MORAN, III a/k/a Grover C. Moran, III.
    No. 63308.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.
    Robert J. Zibilich, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Kurt F. Sins, Asst. Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Research & Appeals Div., for plaintiff-appellee.
   PER CURIAM.

Defendant Grover John Moran was charged by grand jury indictment with the first degree murder of a woman whose body was found beneath a bridge in St. Tammany Parish. Upon trial by jury he was found guilty as charged. After a sentencing hearing was held, the jury unanimously recommended a sentence of life imprisonment. The trial court imposed that sentence on May 12, 1978.

In connection with this appeal defendant has filed fourteen assignments of error and has argued and briefed five of those assignments. None of the assignments are meritorious.

Decree

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

AFFIRMED.

      . The errors assigned and argued by defendant are as follows:
      3, 6, and 9. The court erred in overruling defense motion to suppress oral and written confessions allegedly made by the defendant, and in admitting testimony regarding the said statements.
      11. The court erred in allowing the prosecution to cross-examine the defendant concerning his earlier silence about his alibi defense.
      13. The court erred in refusing to grant a recess for the purpose of obtaining the presence of a defense witness.


author:
DENNIS, Justice.
     DIXON, Justice

text:
    STATE of Louisiana v. Johnny Ray COLLINS.
    No. 62399.
    Supreme Court of Louisiana.
    April 9, 1979.

      Charles E. McConnell, 24th Judicial District Indigent Defender Board, Springhill, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-appel-lee.
   DENNIS, Justice.

The question of law presented by this appeal is whether Louisiana’s 1976 capital punishment legislation authorizes the imposition of a death penalty for a crime committed before the effective date of the legislation. For the reasons hereinafter assigned we conclude that the death penalty may not be applied retroactively and that the capital sentence in the instant case must be set aside.

Defendant, Johnny Ray Collins, was convicted of having committed a first degree murder which occurred on August 11, 1976. On the date of the offense the first degree murder statute provided that whoever committed the offense must be punished by death. La.R.S. 14:30 (La.Acts 1975, No. 327 and La.Acts 1973, No. 109). However, the United States Supreme Court invalidated this mandatory death penalty in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Consequently, at the time of the offense in the instant case life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for forty years was the only constitutional punishment for first degree murder. Twenty-one days later on October 1, 1976, statutes redefining the crime of first degree murder and enacting a permissive, and presumably constitutional, death penalty became effective. La.R.S. 14:30; La.C.Cr.P. arts. 905-905.9 (La.Acts 1976, Nos. 657 and 694).

In the instant case the district court conducted a sentencing hearing in accordance with the 1976 capital punishment legislation and, pursuant to the jury’s recommendation, sentenced Collins to death. In his appeal defendant contends that the district court erred in imposing the 1976 death penalty for a crime which occurred before its enactment. The State argues that the 1976 legislation applies retroactively to the offense at bar and that the death penalty should be affirmed. In support of its argument the State cites Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) in which the United States Supreme Court held that the retroactive application of a Florida death penalty was not an ex post facto violation of the federal constitution.

We conclude that the State’s reliance on Dobbert is misplaced because our state law prohibits the retroactive application of the 1976 capital punishment legislation. Nowhere in the 1976 capital punishment legislation itself is there any provision which purports to apply the new laws retroactively to crimes which were committed before the legislation’s effective date. Therefore, these acts are governed by the original legislative intention that criminal code provisions shall not apply to a crime committed before their effective date, La.R.S. 14 — 142, and the legislature’s express stipulation that no section of the Revised Statutes is retroactive unless expressly so stated. La. R.S. 1:2. Complementarity, the law makers have provided that the repeal of a penal statute does not extinguish any penalty incurred under the former statute, unless the repealing act so provides, and such law shall be treated as still remaining in force for the purpose of sustaining a prosecution. La. R.S. 24:171; see, State v. Terrell, 352 So.2d 220 (La.1977); State v. Paciera, 290 So.2d 681, 687 (La.1974); State v. Kent, 262 La. 695, 264 So.2d 611 (1972); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972); State v. Bowie, 221 La. 41, 58 So.2d 415 (1952). Accordingly, two things are clear: the 1976 death penalty may not property be interpreted to apply to crimes committed before October 1,1976; and the prosecution herein may be sustained only upon the former first degree murder statute whose death penalty has been declared unconstitutional.

For reasons similar to those assigned recently by the California Supreme Court in People v. Teron, 23 Cal.3d 103, 151 Cal.Rptr. 633, 588 P.2d 773 (Cal.1979), the United States Supreme Court’s decision in Dobbert v. Florida is inapposite to the present case. In Dobbert, a majority of the United States Supreme Court indicated that, for purposes of the ex post facto clause of the federal constitution, a Florida statute in some respects similar to the 1976 Louisiana legislation could be applied retroactively as an “ameliorative” or “procedural” enactment. However, the Supreme Court was not faced with the question presented in the instant case of whether, as a matter of state statutory and jurisprudential law, a penal measure should be interpreted to apply to offenses committed prior to the effective date of the legislation. In Dobbert, the Florida Supreme Court had previously concluded as a matter of state law that the new legislation could be applied retroactively to an antecedent offense. Thus, the United States Supreme Court was concerned only with the constitutionality of Florida’s retroactive application of its death penalty statute under the federal ex post facto clause. See, People v. Teron, supra, at 782. In the instant case we do not reach the ex post facto question under either the federal or our state constitutions because the Louisiana 1976 death penalty is not retrospective.

Although the death penalty in the instant case must be set aside, the defendant’s conviction will be affirmed since our review has detected no reversible errors. The defendant’s assignments of error relating to mental capacity to proceed and waiver of constitutional rights present serious issues for discussion.

Johnny Ray Collins is a black man who was twenty-four years old at the time of the offense. He is a lifelong resident of Haughton, Louisiana. He is mentally retarded, with estimates of his intelligence quotient ranging between 43 and 68. He attended school through the seventh grade but was not able to read and write. For most of his life he has worked as a log and pulpwood cutter, and has been able to support his common-law wife and two children. Collins was previously convicted of burglary and theft, and he served one sentence in the state penitentiary for burglary.

On August 11, 1976, a thirteen year old girl was abducted, sexually assaulted and strangled to death near Haughton, Louisiana. When she did not return home from an errand to the grocery store as expected, the police were called and soon learned that she and the defendant had departed the store at about the same time. The officers found the defendant at a neighbor’s house and noticed that he was not dressed in pink pants and flowered shirt as reported by persons present at the store earlier that day. When asked if he had worn different clothing earlier in the day, the defendant replied that he had changed from some green colored clothing. The officers immediately advised the defendant of his constitutional rights. With the owner’s consent, the officers searched the neighbor’s house and discovered a pair of pink pants and a flowered shirt with two buttons missing. The remaining buttons on the shirt matched two others which had been discovered at the location where the girl was believed to have been seized. The officers again advised the defendant of his constitutional rights and placed him under arrest. The defendant subsequently confessed to having killed the girl and led the police to her body in the woods several miles from the grocery store.

The defendant’s mental incapacity to proceed was raised by the defense and, after the appointment of a sanity commission and a hearing, the district court committed him to a state mental institution, finding that he lacked the requisite mental capacity. Approximately eleven months later, after a second sanity hearing and a motion to suppress hearing, the district court determined that the defendant had achieved the mental capacity to proceed and that his inculpatory statement and confession were admissible.

Mental Capacity to Proceed

The defense contentions of mental incapacity to proceed are based essentially upon the evidence educed at the first sanity hearing. The medical consensus of the first commission was that Collins is moderately mentally retarded, trainable but not educable, has an I.Q. of 43, and would be unable to understand the proceedings or assist in his own defense. However, after eleven months of medication and therapy the second sanity commission reported markedly different findings. Its doctors found Collins to be only mildly retarded with an I.Q. of 68, educable, and mentally capable of standing trial. The earlier findings were discounted by the second sanity commission as not being accurate findings of Collins’ true mental capacity due to their having been made shortly after the crime, in a more hostile environment, when Collins was upset and less willing or motivated, and before he had been given any medication for his anxiety.

During the second sanity hearing the court did not rely solely upon the conclusions of the mental capacity experts. Both the district attorney and the judge examined the witnesses closely with respect to considerations pertaining to the nature of the charge, the complexity of the case and the gravity of the decisions with which the defendant was faced, as required by State v. Bennett, 345 So.2d 1129 (La.1977), in which we stated:

“The decision as to a defendant’s competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case and the gravity of the decisions with which he is faced. See, Note, 6 Loyola Univ.L.J. at 684; Note, 4 Columb.Hum. Rights L.Rev. at 245; see also, United States v. Masthers, 176 U.S.App.D.C. 242, 539 F.2d 721 (1976). Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has’ an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. See, State v. Augustine, [252 La. 983, 215 So.2d 634] supra; Robey, Criteria for Competency to Stand Trial: A Checklist for Psychiatrists, 122 Am.J. of Psychiatry, at 616; Note, 6 Loyola Univ. L.J. at 684-85; Note, 4 Columb.Hum. Rights L.Rev. at 245.” 345 So.2d at 1138.

For instance, there was testimony for the two psychiatrists and a psychological assistant indicating that Collins was fully aware of the nature of the proceedings, the nature of the charge against him and its seriousness and the nature of the defenses available to him. The doctors’ testimony contained specific details indicating that Collins understood his legal rights, was able to recall and relate facts pertaining to his actions and whereabouts on the day of the crime, and that he maintained a consistent account which tended to exculpate him from the offense: Collins reported to the doctors that he had been in the store on the day in question, that he had seen other persons pick up the girl after she left the grocery store, that he had confessed to the crime only out of fear of being lynched, and that he was able to lead the police to her body only because of something he overheard from another person near the investigation site and because of his knowledge of the woods. According to the sanity hearing evidence Collins was able to identify a witness who could corroborate some of the details of his defense and report this information to his attorney. The doctors further testified that Collins would be able to make the decisions necessary to assist in his defense, to testify in his own defense, and that if properly medicated his mental condition would not be apt to deteriorate under the stress of trial.

A trial judge’s determination of a defendant’s capacity to stand trial is entitled to great weight especially where the evaluation of credibility or the resolution of conflicting medical testimony is concerned. State v. Morris, 340 So.2d 195 (La.1976); State v. Flores, 315 So.2d 772 (La.1975). After carefully considering the evidence produced at the sanity hearings, we conclude that the trial judge did not abuse his discretion in determining that defendant was capable of standing trial and assisting in his defense.

Waiver of Rights

Defendant assigns as error the trial court’s refusal to exclude his several incriminatory statements and other evidence derived therefrom. Collins’ admission to having visited the store near the time of the victim’s disappearance, and his attempt to conceal the clothing he had worn, led to further questioning which produced, first the incriminatory clothing and defendant’s statement that he had loaned them to a friend; next, defendant’s statement that he had seen two “boys” with an automobile pick up the victim near the store; and, ultimately, his confessions to the crime and disclosure of the location of the girl’s body.

Defendant contends that the trial court should have suppressed all these statements and evidence because (1) the defendant was not advised timely of his rights, and (2) the defendant was mentally incapable of knowingly and intelligently waiving his rights.

There is ample evidence of record from which the trial judge could reasonably conclude that the defendant was informed of his constitutional rights immediately after he told the officers he had been to the store earlier that day in green clothing. The evidence shows that he was advised of his rights on several subsequent occasions during the investigation. The question raised by defendant’s first contention is, however, whether the officers had actually begun custodial interrogation before the initial warning was given the defendant.

The issue is a close one. La.Const.1974, Art. I, § 13, provides that when any person has been arrested or detained he must be advised fully of his rights. Defendant contends that the law officers’ initial questions as to defendant’s earlier whereabouts and apparel amounted to interrogation of a detained or arrested suspect without informing him of his rights. Although the evidence is susceptible to other interpretation, we ultimately conclude that the trial judge did not err in finding that the officers’ actions under the circumstances placed insufficient restraints on the defendant’s freedom to constitute either an arrest or a detention. The defendant was standing outside his friend’s house when he was approached by the officers. He was not threatened with any physical restraint. The officers’ preliminary questions as to his previous whereabouts and apparel did not necessarily indicate that the defendant was under suspicion or that he would be prevented from leaving. The officers were in the process of gathering information from all persons who were in the vicinity at the time of the young girl’s disappearance. Under the circumstances, the officers were entitled to learn if in fact the defendant was the person in pink flowered apparel who was at the store at the time in question, as a means of identifying him as a person who should be interviewed, before inquiring into his knowledge of facts concerning the girl’s disappearance. When the defendant confirmed that he was present during the time under investigation, but gave information controverting that of other witnesses as to the description of his clothing, the officers immediately advised him of his constitutional rights. Even though it is not free from doubt, the evidence supports the trial judge’s conclusion that the defendant was not under suspicion or detention until he claimed to have worn green clothing to the store. Accordingly, defendant was not subjected to custodial interrogation without being informed of his constitutional rights.

The substantial evidence of defendant’s mental retardation and incapacity raises a serious question also as to whether defendant could have knowingly and intelligently waived his rights. Without repeating our earlier summary of the mental capacity evidence it is evident that the defendant is not psychotic but probably is mildly retarded with an intelligence quotient of about 68. Nevertheless, the two psychiatrists who testified at the second sanity hearing were of the opinion that if the constitutional liberties were explained carefully to the defendant he could understand them. Defendant’s life experiences and level of social performance tended to support the conclusions of these witnesses. He earned a living and supported his wife and two children. He had been subjected to police interrogation before and knew its possible consequences from being a fugitive and serving a penitentiary sentence. The state presented evidence that the constitutional rights were explained to defendant extensively on several occasions during the investigation.

If an accused’s statement is taken without the presence of an attorney under circumstances in which a warning is required, a heavy burden rests on the state to prove that the accused knowingly and intelligently waived his privilege against self incrimination and his right to retained or appointed counsel. Miranda v. State of Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State in Interest of Dino, 359 So.2d 586 (La.1976); State v. Welch, 337 So.2d 1114 (La.1976). Although the decision of the trial judge is entitled to great weight, this reviewing court must examine the record to be certain that the state has fully borne its heavy burden of proof. State v. Simmons, 328 So.2d 149 (La.1976); State v. Carson, 336 So.2d 844 (La.1976). After considering the evidence carefully in this case, we cannot say that the trial judge abused his great discretion in concluding that the state presented requisite proof of a knowing and intelligent waiver of rights by the defendant.

These assignments are without reversible merit.

We have reviewed the other assignments of error which were briefed and argued by defense counsel and find that none of them presents reversible error. Since this determination is governed by settled principles of law not requiring further elucidation the reasons therefor will be publicly recorded by an unpublished appendix to the opinion of the court in the instant case.

Accordingly, for the reasons assigned the defendant’s conviction is affirmed, but the death penalty is set aside. The case is remanded to the trial court with instructions to resentence the defendant to life imprisonment with hard labor, and without eligibility for parole, probation, or suspension of sentence for a period of forty years.

JUDGMENT AFFIRMED; CASE REMANDED FOR RESENTENCING.

DIXON, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

If a judicial proceeding which finds a defendant to be mentally incompetent to assist counsel and understand the proceedings against him is to be given any weight, then we must find this retardate incapable of intelligently waiving his constitutional rights to counsel and to silence.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . In State v. Jenkins, 340 So.2d 157 (La.1976), this Court held that the appropriate sentence to be imposed upon a valid conviction for first degree murder is the most severe penalty established by the legislature for criminal homicide at the time of the offense which could be presumed to be constitutional in the light of Roberts v. Louisiana, supra. At the time of the offense in the instant case the “most severe” constitutional penalty was heavier than that permitted by Jenkins because of the amendment to the second degree murder statute. See, La.Acts 1975, No. 380.

      . La. R.S. 14:142 provides:
      “This Code shall not apply to any crimes committed before July 29, 1942. Crimes committed before that time shall be governed by the law existing at the time the crime was committed.”

      . La. R.S. 1:2 provides:
      “No section of the Revised Statutes is retroactive unless it is expressly so stated.”

      . By similar legislative enactment and judicial decisions, this is the general rule in other modem American jurisdictions. Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). For a discussion of modifications of the general rule, see, Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 127-28 (1972).

      . Prior to trial, Dobbert had applied to the Supreme Court of Florida for a constitutional stay of trial alleging the application of an ex post facto law and a violation of equal protection. This application was denied. See, Dobbert v. Florida, 432 U.S. 282, 286-87, 97 S.Ct. 2290, 2295, 53 L.Ed.2d 344, 352 (1977). On appeal of his conviction, the Florida Supreme Court affirmed the conviction and death sentence without discussing the ex post facto argument. Dobbert v. State, 328 So.2d 433 (Fla. 1976). Shortly after the decision in Dobbert was rendered by the Florida Supreme Court, that court reduced a death sentence to life imprisonment based on ex post facto principles and equal protection requirements. The state court’s opinion in Dobbert was not mentioned. Lee v. State, 340 So.2d 474 (Fla.1976). See also, Note, 1978 Brigham Young U.L.Rev. 484, 489 (1978).

      . By assignment of error number one, defendant contends that the trial court erred in ruling that defendant was able to stand trial and assist counsel in his defense.

      . One psychiatrist who had cared for defendant at the forensic unit testified that since medication was given for anxiety and not for any psychosis, he believed that even if defendant’s medication was stopped defendant would maintain his capacity.

      . Assignment of error numbers three, six, seven and nine.

      . Assignment of error numbers two, four, five, eight, thirteen, fifteen and sixteen.


author: SUMMERS, Chief Justice.

text:
    STATE of Louisiana v. Norman P. BILLIOT.
    No. 62722.

    Supreme Court of Louisiana.
    April 9, 1979.

      John L. Carroll, Montgomery, Ala., Cleveland J. Marcel, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Chief Justice.

The Grand Jury of Terrebonne Parish charged Norman P. Billiot with the first degree murder on November 13, 1975, of Herbert Charles “Irby” Bergeron. After trial by a jury of twelve he was found guilty as charged and sentenced to imprisonment at hard labor for life, without benefit of probation, parole or suspension of sentence for 40 years. See State v. Lee, 340 So.2d 180 (La.1976).

This appeal presents four issues based upon eight assignments of error.

About 5 o’clock on the morning of November 13, 1975 defendant Norman Billiot called a Yellow Cab from the Brown Derby Lounge located on Bayou Blue in Lafourche Parish. Herbert “Irby” Bergeron, a Yellow Cab driver, responded to the call. After ascertaining that the fare would be $17.00, Billiot instructed him to drive towards his friend’s house near Cocodrie in Terrebonne Parish. When they arrived at the Texaco dock near Cocodrie, Billiot inquired of the dispatcher there if he had heard from the vessel Janice C. No communication having ‘been received, Billiot returned to the cab and instructed Bergeron to drive to Grand Caillou.

En route they turned onto the Bayou Salle road, and when they had traveled about five miles, Billiot told the driver that he didn’t have enough money to pay him. Because he didn’t have the money, the cab driver told Billiot that he would have to drive him back to the Texaco dock and drop him. Apparently angered by the cab driver’s attitude, Billiot pulled a small dagger from his pocket, and demanded the driver’s money. When the driver tried to hit him, Billiot cut himself with the dagger. In the scuffle that ensued Billiot cut the cab driver a number of times, finally pulling him from the cab and stabbing him in the chest.

Billiot then pulled the driver into the weeds and removed the driver’s clothes to replace his own which were soiled. Finding the driver’s clothes were also soiled he abandoned him in the weeds, took the cab and headed toward Bayou Dularge in Ter-rebonne Parish, on the way throwing the knife on the side of the road. At his destination he abandoned the cab on an isolated side road, removed the cab driver’s money from a small box on the floor of the cab and ran to the highway. He was picked up by his brother Lawrence shortly thereafter, rode home and went to bed.

Later that morning the family of Berger-on filed a missing persons report with the authorities of Terrebonne Parish. He had last been seen in the early morning hours of that day by his son. That afternoon policemen discovered his cab where Billiot had abandoned it. Blood in the cab, an empty knife scabbard in the back seat, and the cab driver’s rifled money box suggested the obvious probability of foul play.

Investigators learned that Billiot had been Bergeron’s last known fare. Two sheriff’s deputies were dispatched to Billi-ot’s residence in Dulac. They brought him back to the Sheriff’s Office in Houma for questioning. After interrogation he confessed to killing Bergeron, and led the in-» vestigators to the site where he had concealed Bergeron’s body in the weeds. The victim had been stabbed repeatedly.

I.

The defense contends in Assignments 1, 2 and 3 that the trial judge erred in denying its motions to suppress evidence of Billiot’s confession and his clothing worn at the time of the murder.

Chief of Detectives Aubrey Authement was in charge of the investigation. He learned that Bergeron was missing and Bil-liot was the last person seen with him. When the abandoned cab was discovered and inside were found traces of blood, a knife scabbard, and a rifled money box, Authement dispatched Detectives Buquet and Fitzgerald, who knew Billiot, to locate him at his residence.

The detectives, out of uniform and in an unmarked vehicle, proceeded to defendant’s residence at Dulac. Upon arrival their knock at the front door was answered by defendant’s mother. They informed her that they would like to speak to Norman. When she summoned him Billiot appeared at the door dressed only in trousers. They informed him that they understood that he was the last person seen with Bergeron and asked if he would object to coming to Hou-ma; they wanted to talk to him. Billiot said “o. k.”, but said he couldn’t remember very much because he drank a lot the night before.

While still at the doorway of Billiot’s house, the officers suggested to Billiot that he would need a shirt and shoes, whereupon Billiot started into the house and the officers asked if they could accompany him. Billiot agreed and as they proceeded to his bedroom, he was asked if he would bring the clothes he wore the night before. In his bedroom, while donning his shirt, Billiot handed a pair of trousers and a shirt to Buquet, after removing personal effects, including some money, from the pants pockets.

The detectives and Billiot then promptly departed and entered the sheriff’s vehicle parked nearby. At that time Billiot was read his Miranda rights from a card by Buquet, and they drove off. The entire encounter took no more than ten minutes.

Upon arrival at the sheriff’s office, Billiot was escorted to the detective bureau by Chief of Detectives Authement. After seating him at a desk, Authement again advised him of his Miranda rights. An interrogation followed for approximately fifteen minutes in which Billiot admitted that he had taken a cab ride the night before, that he knew Bergeron, but that he had not killed him. At that time Billiot saw officer Mike Eisner nearby. Apparently Billiot knew Eisner and said, “Mike, I want to talk to you.”

Eisner, Billiot and Authement then went into Authement’s office where Billiot was again given the Miranda warning by Eisner. Thereafter Eisner questioned Billiot, and Billiot recounted the events of the early morning cab ride, the fight with Bergeron and his stabbing of the victim. Asked if he knew whether Bergeron was dead, Billiot said he did not. Whereupon Eisner suggested that Bergeron might still be alive and the only way to find out was to go to the site. Billiot then offered to take them there.

Billiot was handcuffed and embarked in a police vehicle with Eisner and Authement and they headed toward the site. Billiot led them to the scene of the stabbing where the victim’s body lay. The coroner was summoned. After spending about an hour at the scene Billiot was returned to the lockup where he was booked. He then gave a statement to Authement in Eisner’s presence at the detective bureau after having been again read his Miranda rights. Authement typed the statement which Billiot signed in the presence of Authement and Eisner.

Defendant contends that he was arrested without warrant and that the search and seizure of his clothing which followed and the confession and evidence obtained as a result of his subsequent detention and interrogation were obtained in violation of the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 3, 13 and 16 of the Louisiana Constitution.

It is the defense contention that Billiot was arrested from the moment Buquet and Fitzgerald spoke with him on the porch of his residence in Dulac. On this premise the defense asserts that the holding in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), requires that defendant’s oral and written confessions, and his clothing surrendered to the detectives at his house were tainted by the prior illegality and were therefore inadmissible as evidence at trial.

An arrest is the taking of one person into custody by another. To constitute an arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him. La.Code Crim.Pro. art. 201.

The constitution prohibits seizure of persons or effects except upon a warrant issued on probable cause by oath or affirmation, describing the person to be seized. La.Const. art. I, § 5 (1974).

However, a peace officer may, without a warrant, arrest a person when the peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer. La.Code Crim.Pro. art. 213.

Probable cause exists when the facts and circumstances known to the arresting officer, and of which he has reasonably trustworthy information, are sufficient to justify a person of ordinary caution in believing that the person to be arrested has committed a crime. State v. Davis, 357 So.2d 519 (La.1978); State v. Dunbar, 356 So.2d 956 (La.1978); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966). To determine the existence of probable cause, the court must examine the “ ‘facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information;’ ” State v. Linkletter, 345 So.2d 452 (La.1977); and do so in light of the experience of reasonable people, not legal technicians. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Probable cause is not absolute cause. Actions of lawmen, therefore, may be supported by less evidence than would justify a conviction. The strength of the requisite probable cause varies with the magnitude of the intrusion and the alternatives available to the peace officer. In the first instance the determination of probable cause is a matter for the trial judge depending, as it often does, upon factual determinations and the credibility of witnesses.

No arrest occurred when the officers knocked on Billiot’s door and requested permission to see him. No arrest occurred when they told him that they understood he was the last person to see the missing cab driver and asked him to come with them to Houma because they wanted to talk to him. He consented of his own free will to accompany them, stating that he didn’t remember too much because he had been drinking. No violation of his privacy occurred when they requested and were given permission to accompany him into the house. No seizure occurred when they asked for the clothes he wore during the cab ride and were handed the trousers and shirt.

The officers were in plain clothes, displayed no gun or handcuffs and never declared Billiot to be under arrest. They did not restrain him by laying of hands or otherwise. No force, coercion or intimidation was used. Billiot entered the vehicle willingly and without protest. At that point, though not then under formal arrest, his detention may have been said to constitute a constructive arrest. To justify this detention the officers must have had probable cause to detain Billiot.

This probable cause existed. The officers involved in the investigation knew that the victim Bergeron had been reported missing, they were aware that Billiot was the last person seen with Bergeron in his cab, and the cab was found abandoned several hours later in an isolated location. Bloodstains, a dagger sheath and the rifled money box were found in the cab. These facts and circumstances led to the reasonable conclusion that an offense had been committed. It was the obvious, logical and reasonable next step for the officers to question Billiot. They proceeded to do so in a cool and inoffensive manner, without force or intimidation and with the full consent and approval of Billiot.

As to the confession, this Court has repeatedly held that

“[bjefore a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights.” State v. Adams, 347 So.2d 195 (La.1977).

At the hearing, the defense presented no serious challenge to the State’s proof on either ground. Its brief makes no concerted effort on that subject. It does however rely upon the decision in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), for the proposition that when a confession is secured as the result of an accused’s illegal detention, the State bears the burden of proving that intervening circumstances have purged the taint of the prior illegality.

This argument is dependent upon whether defendant was under an illegal arrest at the time of his first confession. If no such illegality occurred no taint need be dispelled, and the confession must stand or fall upon its voluntariness, and the proper Miranda warnings. Our findings on this point are that Billiot’s arrest and detention were based upon probable cause. Thus, when the Miranda warnings were properly given and the confession was free and voluntary, as the recitation of facts disclose that it was, admissibility is permissible.

II.

By Assignments 4 and 5 the defendant contends that the trial judge erred when he denied defendant’s motion to quash the indictment against him and denied defendant’s challenge to the petit jury because of the systematic exclusion of Indians from grand juries and petit jury rolls.

Defendant Billiot is registered as a white male, a determination made by him at the time of his voter registration. He professes, however, to belong to the race of Houma Indians.

Prior to trial, the defense moved to quash the petit jury venires for, among other reasons, the systematic exclusion of Indians.

The United States Court of Appeals for the Tenth Circuit has announced a test to determine whether a group which a challenger has alleged to be unrepresented is cognizable, cognizability of the group being an essential element in proving discrimination. United States v. Test, 550 F.2d 577 (10th Cir. 1976). That test is as follows:

“(1) the presence of some quality or attribute which ‘defines and limits’ the group; (2) a cohesiveness of ‘attitudes or ideas or experience’ which distinguishes the group from the general social milieu; and (3) a ‘community of interest’ which may not be represented by other segments of society.” 550 F.2d at 591.

In an effort to establish that the Houma Indians are a “cognizable” group within Terrebonne Parish, the defense adduced evidence at a hearing on the motion that the venires in Terrebonne and Lafourche Parishes are drawn from the lists of registered voters, as supplemented each month. Except for the persons the jury commissioner knows have moved out of the parish, or died, the names are then placed in a large drum. Prom this drum, three thousand names are then selected at random. These names then constitute the general venire, from which the grand and petit jury venires are drawn, again at random, and as needed. The general venire is periodically supplemented to keep the number of names constant.

In order to prove systematic exclusion of Indians by this system, counsel first sought to prove that Indians represent an identifiable class within the district. To that end he called Professor Forrest Deseran, a professor of sociology at Louisiana State University. He testified that the 1970 census for Terrebonne Parish had identified a population of 2,265 Indians out of a total population of 76,000, roughly a 4% figure. (It is actually about 2.98%). His own sociological study conducted with local interviewers yielded the same result. His study disclosed that the Indians have been assimilated culturally. Nonetheless, he said, “there is a definite knowledge amongst the people that live there that there is a differentiation between the Indians, black and white population,” and that, therefore, “. the social impact or social definition of the Indian is very real . . ..”

According to the Registrar of Voters of the total population in the district, 36,000 are registered voters. Because that office included Indians as Whites on its rolls it was impossible to determine, at least from those lists, how many Indians in the district had registered. Notwithstanding this practice, from checking the original registration cards of the general venires for 1975 and 1976, she provided the following percentage figures: .9% in 1976; .6% in 1975.

From these statistics the defense argues that an evident statistical disparity exists between the 3% ratio of Indians to the general population and a .6 or .9% ratio to the general venire. The defense claims this showing established a prima facie case of systematic exclusion. And, as the State offered no evidence to rebut this showing, apart from protestations of fairness on the part of the jury commissioners, the defense contends the trial judge erred in denying the motion.

As the defense figures proved, Indians have not been totally excluded from the jury venires in the parish of Terrebonne. The State’s brief argues that Professor Des-eran’s study that Houma Indians constitute a distinct class is not well-founded. Classification by race in Deseran’s study turned on the interviewer’s evaluation alone, the State argues, and did not compensate for racial intermarriage. In addition, the State argues, the testimony at the hearing makes clear that Indians often register as whites. To this extent, therefore, the statistical base for supporting cognizability of the group is extremely suspect.

The defense position is further weakened by Deseran’s conclusion that while Indians do constitute an identifiable social class, the group is small.

Here we have a finding of a small, if identifiable and possibly cognizable group, and the fact that some Indians do serve on jury venires. However, a further showing of systematic and purposeful exclusion of Indians is required. The uncontradicted testimony of the jury commission was to the effect that no conscious or subconscious effort was made to exclude any prospective juror from being included on the parish’s jury venires. The jury selection procedure was randomly accomplished without reference to race. No documents used by the commissioners specified the race of the prospective juror. The procedure was totally colorblind and evenhanded. A fair cross section of the community was represented on the challenged juries. No evidence was presented to contradict this clear showing.

The law of this State is designed to prevent unfounded attacks upon venires resulting from good faith efforts by jury commissions to comply with legal requirements for selecting juries. Thus the Legislature has declared that “[a] general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant.” La.Code Crim.Pro. art. 419. There is a considerable body of jurisprudence supporting this legislation. See State v. Sheppard, 350 So.2d 615 (La.1977); State v. Fletcher, 341 So.2d 340 (La.1976); State v. Anderson, 315 So.2d 266 (La.1975); and the many cases cited in these opinions; State v. Monk, 315 So.2d 727 (La.1975); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971). There is, therefore, no merit to these assignments of error.

III.

At some time during his incarceration, appellant wrote a lengthy, discursive autobiography. The handwritten document chronicled Billiot’s life from birth until his incarceration for the instant offense. It was sent to his attorney who forwarded it to Dr. Maxwell Weisman for the psychiatrist’s use in preparing his testimony for Billiot’s trial involving the nature of alcoholism and its effect upon alcoholics. Much of Billiot’s autobiography detailed Billiot’s problems with drinking.

At the conclusion of Dr. Weisman’s testimony, the defense offered the autobiography in evidence, and it was received by the Court. No attempt was made by defense counsel to submit the document to the jury.

The jury retired at the close of the case. After deliberating about one hour, they returned to the courtroom and made certain requests of the trial judge, including permission to review Billiot’s autobiography. After a bench conference, the judge informed the jury that at this juncture of the trial he was not permitted to allow them to read the autobiography. He relied upon Article 793 of the Code of Criminal Procedure to this effect:

“A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.”

Billiot’s counsel then requested another bench conference. At the conclusion of this conference, the court instructed the jury that denying them the right to read the autobiography was a matter of total inadvertence. They were further instructed that no evidence was deliberately withheld from them, and that they were not to draw any adverse inference because their request was denied. Defense counsel then indicated that he was totally satisfied with that instruction and the court went on to other matters.

Because no contemporaneous objection was made to the ruling of the trial judge the issue is not properly before this Court on appeal. La.Code Crim.Pro. Arts. 841 and 920. See also State v. Passman, 345 So.2d 874 (La.1977); State v. Freetime, 303 So.2d 487 (La.1974).

Notwithstanding the absence of a timely objection the defense contends that, as applied in this case, Article 793 of the Code of Criminal Procedure operated to deny him due process of law guaranteed by the United States and Louisiana Constitutions. Fundamental fairness was denied here, according to the defense, because crucial evidence to the guilt determination and to mitigation was denied to the jury.

The contention lacks merit. Defendant was permitted wide latitude in the direct examination of its witnesses on the subject of Billiot’s alcoholism. Dr. Weisman testified to Billiot’s protracted and heavy use of alcohol. In that opinion, more than in Billi-ot’s self-serving history, lay the greatest hope of the defense for establishing lack of specific intent to murder. For that reason, Assignments 6 and 7 lack merit.

IV.

By Assignment 8 defense counsel argues that his failure to timely object to the ruling of the trial judge denying the jury access to the autobiography, and his failure to present the autobiography to the jury when it was introduced into evidence amounted to, in the context of this trial, ineffective assistance of counsel.

If these factors were inadvertent oversights of counsel his defense of Billiot was not ineffective. His omission was not a critical, or even significant, one in light of testimony from the expert witness. Counsel otherwise litigated the case with obvious expertise and competence.

This assignment lacks merit.

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

       Judge Cecil C. Cutrer participated in this decision as Associate Justice Ad Hoc sitting in the place of Justice Marcus.