author: DIXON, Justice.

text:
    Cliff PROBST v. The CITY OF NEW ORLEANS et al. Harry B. SCHMIDT, Jr. v. The CITY OF NEW ORLEANS et al. WALGREEN LOUISIANA COMPANY, INC., et al. v. The CITY OF NEW ORLEANS et al.
    Nos. 57594, 57595, 57602, 57603 and 57618.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearings Denied Oct. 13,1976.

      Nathan T. Giselair, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for plaintiffs-applicants in 57594 and 57595.
    Philip S. Brooks, City Atty., Lee R. Miller, Jr., Philip D. Lorio, III, Asst. City At-tys., for defendants-applicants in 57594 and 57595.
    Nathan T. Giselair, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for plaintiffs-respondents in 57595 and 57602.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert' L. Danner, Jr., Asst. Atty. Gen., for defendants-applicants in 57602 and 57603.
    Philip S. Brooks, City Atty., Lee R. Miller, Jr., Philip D. Lorio, III, Asst. City At-tys., Richard J. McGinity, Orleans Levee Bd., New Orleans, for defendants-applicants in 57603.
    Arthur L. Ballin, Frank C. Dudenhefer, New Orleans, for defendants-respondents in 57603.
   DIXON, Justice.

Plaintiffs in these cases, having paid ad valorem taxes under protest, brought these suits to contest the increased assessments. There was judgment for defendants in the district court. The Court of Appeal reversed, holding that the revaluation of the property violated constitutional guarantees of equal protection and uniformity, because the rev.aluation was accomplished without a systematic plan to equalize taxes by revaluing properties throughout New Orleans. Probst v. The City of New Orleans et al., La.App., 325 So.2d 665; Schmidt v. The City of New Orleans et al., La.App., 325 So.2d 671; Walgreen Louisiana Co., Inc. v. The City of New Orleans et al., La.App., 325 So.2d 673 (1976). We granted writs to consider the rulings in these cases.

All cases involve commercial property within the central business district of New Orleans. The Probst and Schmidt cases involve improved and unimproved parcels within the First Municipal Assessment District, Parish of Orleans, and were consolidated for trial. In the Walgreen case several plaintiff owners or lessees of parcels lying in the central business district within the Second Municipal Assessment District joined in one suit. Probst and Schmidt paid 1973 taxes under protest; the Walgreen plaintiffs contest the 1974 and 1975 assessment. The cases were tried in 1975.

Plaintiffs contend that they and other property owners in the central business district suffered from arbitrary and discriminatory selection for increased evaluations, and that the increased assessments were illegally adopted.

Unlike other parishes, Orleans is divided into seven assessorial districts with an elected assessor for each. R.S. 47:1901. Each is required to “independently exercise his functions in the assessing and listing of the property in and for his respective district .” R.S. 47:1909. Assessments are subject to review by a board consisting of the Mayor of New Orleans as chairman, members of the City Council, a member of the Board of Liquidation, a member of the Sewerage and Water Board, the President of the Board of Levee Commissioners and the President of the Orleans Parish School Board. The Board of Reviewers “shall recommend to the tax commission increases or decreases in any assessment of real or personal property made by the various assessors of the parish of Orleans in accordance with the true conditions found by it.” R.S. 47:1995. Tax rolls are forwarded to the Louisiana Tax Commission (see former Art. X, § 12, La.Const.1921, repealed, Act 789 of 1972, approved Nov. 1972), whose duty it is to fix the value of all taxable property. R.S. 47:1989; Bussie v. Long, 257 La. 623, 243 So.2d 776 (1971); Bussie v. Long, La.App., 286 So.2d 689 (1973), writ denied La., 288 So.2d 354 (1974). The “lawful authorities of each parish” are permitted to fix valuations at less than actual cash valuations by using a percentage of the actual cash value fixed by the Tax Commission, provided that “for local purposes the percentage shall operate equally and uniformly on all taxable property within the parish or other local subdivision . . . ” R.S. 47:1989. (Art. X, § 1, La.Const.1921 provides that “the taxing authorities of the local subdivision may adopt a different percentage . . . ”

In 1971 the Board of Reviewers formed an advisory committee to develop methods of equalizing assessments throughout the city. No formal plan was adopted for revaluation of all property in the city, but it was decided to do as much as possible in 1972. Assessor Smith of the Fifth Municipal District agreed to revalue the vacant land in the Algiers “lower coast.” A decision was reached to attempt revaluation on land only, because of the difficulties in appraising buildings. A well-defined geographical area (referred to as the Central Business District or CBD throughout the records in both cases) was selected as the first to be revalued by a team of real estate appraisers to be appointed by the Real Estate Board under a contract with the city. The boundaries of the CBD were to be Iberville Street, the Mississippi River, Gai-ennie Street, the Pontchartrain Expressway and South Claiborne Avenue. All except a strip one block wide from the river to Claiborne lying between Canal and Iberville Streets lay within the First Municipal District, and from the River to Rampart Street was bounded by the Vieux Carre. The staff of the Board of Reviewers depended heavily on the cooperation of the individual assessors, and when the assessor of the Second District objected to the project, the revaluation of the Iberville strip was postponed for a year.

The revaluation procedures adopted by the appraisers varied slightly from an individual appraisal of each parcel of land. Using available comparable sales, the appraisers established a square foot value for each block on each street in the CBD. An average sized, regular shaped parcel which fronted on only one street was valued by multiplying its area in square feet times the square foot value applicable to that block. Others parcels — irregular in shape, unusual in size, fronting on more than one street and the like — were subject to adjustments by the appraisers beyond the simple application of area to square foot value.

No complaint is made in either of these suits that any assessment is based on an appraisal in excess of market value, or that the appraisals lacked such a uniform relationship to actual value that they were, for that reason, discriminatory. In the First Municipal District approximately eight hundred assessments were increased; about one hundred fifty were reduced; some stayed the same. In the Second Municipal District there were one hundred sixty-nine increases; eighty decreases and ten were the same.

In September of 1972 six resolutions were unanimously adopted by the Board of Reviewers concerning the revaluation. One was a policy resolution, expressing the purpose of the Board of Reviewers to equalize assessments in the CBD, and to fix the percentage of value on which each parcel would be assessed to be that which would produce approximately the same total amount of assessments as before equalization (except for improvements and additions). If more than a 3% increase in total assessments resulted from revaluation, the board resolved to reduce the assessments the following year, and the equalized assessments would not be increased for five years. A separate resolution fixed the assessment in the CBD at 33V8% of market land value. (Before 1972 commercial property in the CBD had been assessed as high as 40% of value in the First District; in the Second District the assessor stated that he listed the property at 25% of its value throughout the district). Other resolutions pertained to: relief for taxpayers whose land was burdened with a lease not reflecting present values; credit for “Historic and Green Area” tracts; relief for hardship cases and funding the revaluation.

In due course the Louisiana Tax Commission approved the recommendations of the Board of Reviewers and revalued the land in the CBD lying in the First District for 1973 taxes, and for the Iberville strip of the CBD in the Second District for 1974 taxes.

In 1974 the appraisers for the Board of Reviewers appraised land in the New Orleans East area in the Third Municipal District. Land only was revalued, even though some property had been improved. The percentage of actual value recommended by the Board of Reviewers was not accepted by the Louisiana Tax Commission, which raised the percentage from ten to twenty, the same percentage applied to the lower coast of Algiers in 1972 by the assessor in the Fifth District. Public utilities property was also reviewed and reassessed in 1974.

By the end of 1974 the Board of Reviewers had adopted a program for revaluation of all lands in the City of New Orleans. All assessments on vacant property in Orleans Parish were to be equalized in 1975. In 1976 assessments for land zoned for various industrial uses were to be equalized, to be followed in 1977 for land zoned for commercial uses, for shopping centers, neighborhood businesses, medical services and general office districts. Revaluation and equalization were to be completed in 1978, including land and improvements, residential areas and specially zoned historic districts.

The procedures and plans of the Board of Reviewers were in sharp contrast to the practices of the assessors prior to 1972 disclosed by the record. In the absence of complaints, once property was assessed, its assessment went unchanged except when property was sold, improved or demolished.

Plaintiffs argue that their increased assessments resulted from the violation of both constitutional principles and statutory provisions. The only attack on the revaluation itself seems to be that it was not done on a parishwide nor even a districtwide basis. Revaluation and reassessment in a good faith effort to achieve uniformity and equality in a given district need not be delayed until the entire district can be revalued at the same time. Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154 (1918); Annotation Tax — Incomplete Equalization Program, 76 A.L.R.2d 1077 (1961); May Department Stores Co. v. State Tax Commission, 308 S.W.2d 748 (Mo.1955); Morrison v. Rutherford, 83 Wash.2d 153, 516 P.2d 1036 (1973). If only a part of a taxing district can be revalued in one taxing year, because of limitations of manpower and funds on those charged with assessing, a program of revaluation may start in a reasonably determined portion of the district, even though property in that part might bear a larger portion of the tax burden for a reasonable time until all property is revalued.

The central business district was the natural place to start. It contained the Superdome and other dramatic developments on Poydras Street, where property values increased greatly. If a developer contemplated buying land, he would be faced with taxation based on the sale price, with the prospect of competition from owners who were taxed on outdated land values. Although commercial, business and industrial sites are located from place to place throughout the city, there is no other area which is comparable to the size and concentration of commercial properties in the CBD. The district is surrounded by identifiable boundaries, natural, man-made and legal — the Mississippi River, the Pontchartrain Expressway elevated approach to the Mississippi River Bridge, the elevated through-the-city route of Interstate Highway 10 above the right-of-way of Claiborne Avenue and the Vieux Carre reaching from the river to Rampart and Iberville. The Vieux Carre is a constitutionally protected preservation area in which property may be exempted from taxation and in which building alteration and demolition are prohibited without approval of the Vieux Carre Commission. Art. XIV, § 22A, La.Const.1921.

The selection of the CBD as the area for beginning a revaluation and equalization program is supported by strong reasons and cannot be characterized as arbitrary or unreasonably discriminatory.

The attack is concentrated on the percentage (33Vs%) of actual value which forms the assessment on which the tax is levied. The complaint is that other “commercial” property in the same assessorial district is taxed at a smaller percentage of the assessed value.

The record in the Probst and Schmidt cases establishes that commercial property in the First Municipal District in the area covered by the CBD was assessed at 30% to 40% of the supposed value before the revaluation in 1972. In that district the assessor used four classifications to which he applied a rather flexible percentage to obtain an assessment. The only property discussed in the CBD was “commercial.” Outside the CBD residential property was assessed at from 15% to 17%. The only real commercial area in the district, according to the assessor, was in the CBD, except for scattered spots and nonconforming uses, which were assessed at 25% to 30% of value. Light and heavy industrial were also assessed at about 25% to 30%.

In the Second Municipal District (the Walgreen case), property was assessed at 25% of value, except for the strip in the CBD lying between Canal and Iberville from the river to Claiborne.

Art. X, § 1, La.Const.1921, in effect at the time of the assessments complained of, provides:

“The power of taxation shall be vested in the Legislature; shall never be surrendered, suspended or contracted away; and all taxes shall be uniform upon the same class of subjects throughout the territorial limits of the authority levying the tax, and shall be levied and collected for public purposes only. No property shall be assessed for more than its actual cash value, ascertained as directed by law, and all tax-payers shall have the right of testing the correctness of their assessments before the courts at the domicile of the assessing authority, or as may be directed by law. The valuation and classification fixed for State purposes shall be the valuation and classification for local purposes; but the taxing authorities of the local subdivision may adopt a different percentage of such valuation for purposes of local taxation.”

Bussie v. Long, La.App., 286 So.2d 689 (1973), relied on well established constitutional principles:

“It is settled that a taxpayer is entitled to have his property taxed at that percentage of value applicable to others equally and similarly situated, even though statutory law may provide otherwise. The rule is based on the principle that if both the standard of true value and the uniformity and equality required by law cannot be achieved, equality and uniformity is preferred under the law. Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L.R. 979.
“The equal protection clause of the Fourteenth Amendment to the United States Constitution protects a taxpayer from any state action which discriminates against him by subjecting his property to taxes not imposed on others in the same class. The right thus protected is the privilege of receiving equal treatment under law.
“Although states have wide discretion in the area of taxation, such discretion may not be exercised so as to arbitrarily deprive taxpayers of constitutional rights. While the Fourteenth Amendment does not require exact uniformity and equality in matters of taxation, it does protect against intentional and arbitrary discrimination whether resulting from the express terms of a statute or its improper execution by those charged with its enforcement. Weissinger v. Boswell, D.C., 330 F.Supp. 615.
“A state may establish reasonable classifications for the taxing of property at different rates. However, if state law requires that all property be taxed at a uniform rate and has enacted laws to insure such result, any substantial disparity or difference in taxes arising from failure of state officers to properly administer the laws will be held in violation of the due process and equal protection clauses of the United States Constitution. Weissinger, above. To the same effect, see Louisville & Nashville R. Co. v. Public Serv. Comm. of Tenn., D.C., 249 F.Supp. 894.” 286 So.2d 689, 700-701.

Although at the time of the trial of these cases in 1975 no effort had been made to revalue and assess commercial property in New Orleans outside the CBD, we do not find support in the record for plaintiffs’ contention that their property had been singled out for the application of a higher tax ratio than other similarly situated properties. We find no evidence that it was the intention of the Board of Reviewers or the City Council or the Louisiana Tax Commission to apply a higher percentage to the value of CBD property than to similar commercial property outside the CBD when the revaluation was completed.

As mentioned before the intention of the Board of Reviewers in 1971 was to develop methods of revaluation of property in the whole city. That their intention was equalization and not discrimination is evidenced by their resolutions in September of 1972, expressing the policy to equalize and not increase total assessments in the CBD. It is true that the authorities proceeded in a step-by-step manner, without the formal adoption of a city wide plan until the end of 1974. That plan contemplated the equalization of assessments on all business and commercial property in the city in 1977.

There is no evidence that a percentage of value would be used in 1977 for the assessment of commercial and business property different from that used for the assessment of property in the CBD.

Plaintiffs argue that the taxing authorities could not legally assess commercial property at a percentage of value higher than other kinds of property in the city, relying on the absence of specific statutory authority and certain action of the legislature in 1972, as well as the failure of constitutional amendment in 1972 which would have permitted the creation of a Central Business District in New Orleans as a separately assessed and taxed public improvement district.

We find it irrelevant that the constitutional amendment was defeated; it had no relationship to equalization of assessment in New Orleans. Nor does the repeal in 1972 of R.S. 47:1988 support the inference that classification of different kinds of property for the purpose of assessment was illegal. The repealing act (Act 13, § 1 of Ex.Sess. of 1972) was part of a legislative package designed to remove the State from ad valorem property taxing activity (see Art. 10-A, La. Const.1921). R.S. 47:1988, among other things, specifically permitted the tax commission to classify and subdivide the classifications of different kinds of property. The amendment and reenactment of R.S. 47:1989 by Act 14, § 1 of Ex.Sess. of 1972 continued the statutory power of the “lawful authorities” of parishes to fix percentages of valuations of properties for assessment purposes. The language of the old statute was retained, eliminating only the prohibition against fixing valuations by parish authorities at less than 25% of the actual cash valuation fixed by the Tax Commission. (R.S. 47:1997, not amended in 1972, but amended in respects not relevant in 1974, continues to permit the City Council to adopt a different percentage of value from that adopted by the Tax Commission, in which case the percentage adopted cannot be less than 25% of actual cash value fixed by the Commission.

The 1972 legislation was a reaction to demands for equalization of property taxes in Louisiana. Classifications of kinds of property for taxation was so widespread (see Bussie v. Long, supra) that we cannot assume the legislature was unaware of the practice. The unchanged continuation of the power of the Tax Commission to “change or correct” assessments (R.S. 47:1990), the continuation of the Board of Reviewers of Orleans Parish (R.S. 47:1931) and the continuation of the powers of the “lawful authorities” to levy, assess and collect taxes on “less than actual cash valuation” and fix percentages (R.S. 47:1989), reinforce the view that the failure to prohibit classification of different kinds of property left the power of the “lawful authorities” to classify after 1972 as it had been before 1972 — limited only by the “essential principle of practical uniformity.” Sunday Lake Iron Co. v. Wakefield, supra.

Caddo Parish Police Jury v. Lancaster, La.App., 232 So.2d 781 (1970), does not support plaintiffs’ position. There, the police jury desired to use one percentage of value for the levy of a 3/io mill and a Vio mill tax for the juvenile court, and another percentage for the other taxes levied by the parish. The court held that the same percentage must be applied for all taxes levied. Whether different percentages could be used for different classes of property was not an issue in the case.

In summary, there has been substantial compliance with relevant statutory requirements, and no violation of due process or equal protection clauses of the United States Constitution. See Louisiana & Arkansas Ry. Co. v. Goslin, La., 300 So.2d 483 (1974).

For these reasons the judgment of the Court of Appeal is reversed, and the judgment of the district court is reinstated, at plaintiffs’ costs.

SANDERS, C. J., and SUMMERS, J., dissent, being of the opinion that the judgment of the Court of Appeal is correct. See La.App., 325 So.2d 665-673.

MARCUS, J., dissents.


source: Caselaw Access Project

author: DIXON, Justice. CALOGERO, Justice

license: Public Domain

text:
    STATE of Louisiana v. Byron SCOTT.
    No. 57630.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 13,1976.

      Robert Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was convicted of second degree murder, a violation of R.S. 14:30.1, and was sentenced to life at hard labor.

On May 10, 1974 defendant was arrested for driving without a license and reckless driving. He was booked and allowed to use the telephone. During this phone call an officer overheard him tell the other party to . . tell my maw and paw if they don’t get me out of here, I’m going to blow them away.” Later that evening the defendant was released on bail.

On May 11, 1974 defendant went to his father’s residence at the Desire Street project in New Orleans. He was armed with a shotgun. Outside the apartments he told one of the neighbors he was going upstairs “by his mama,” and, he said, “if you hear anything go pow, you’ll know what happened.”

Defendant went up to his parents’ apartment and asked his mother where he could find his father. She responded that he was asleep in the bedroom. Defendant entered the bedroom and aimed his gun at his father. Defendant’s mother then put herself over her husband and told the defendant not to shoot. This awakened the father and he said, “Boy, what’s the matter with you?” Defendant then fired a single shot, killing his father. As his mother screamed, defendant turned to her and told her she would “get the same thing” if she did not become quiet.

Defendant left the apartment, dropping his gun on the stairway leading to his parents’ apartment. His mother came out behind him telling one of the neighbors to call the police because “Tony [defendant] had killed Johnny [defendant’s father].” The neighbor ran up to the victim’s apartment and saw him lying on the bed with a “hole in his chest.” She called the police.

When they arrived, the police officers could find no vital signs in the father. They searched the apartment and found no weapons.

In defendant’s sole assignment of error he contends the trial court erred when, over his objection, it admitted photographs of the deceased’s body as it was found in the apartment.

The photographs are black and white representations of the victim’s body. They portray the victim lying across the bed in which he was shot. His body and the bed are covered with blood, and protruding from his chest is a portion of an organ or muscle.

The pictures are gruesome and material to no disputed issue in the case. However, the record contains ample uncontradicted evidence of the defendant’s guilt. Records in other cases demonstrate that it has become a common practice to present gruesome photos containing minimal probative value to the jury. If there really is a rule of law in Louisiana requiring the balancing of probative value against possible prejudicial effect, new trials should be ordered in cases like this one. This court, however, has declined to follow this course so often that prosecutors may be justified in the belief that, if it can be argued that the pictures are at all relevant, this court will not order a new trial when gruesome pictures are introduced.

The much cited rule governing the admissibility of gruesome pictures requires a determination of whether the probative value of the pictures outweighs their probable prejudicial effect on the jury. See, e. g., State v. Curry, 292 So.2d 212 (La.1974). Stated differently, this court has approved the proposition that:

“. . . photographs which are calculated to arouse the sympathies or prejudices of the jury are properly excluded if they are entirely irrelevant or not substantially necessary to show material facts or conditions.” State v. Alexander, 252 La. 564, 573, 211 So.2d 650, 653 (1968).

Notwithstanding this language, this court has only twice applied this test to find that reversible error was committed in the admission of this type of photographic evidence.

The test of balancing the probative value of the photographs against their probable prejudicial effect has not only been announced in the Louisiana jurisprudence but has also been approved by the commentators. See, e. g. 1 Underhill’s Criminal Evidence § 117 (6th ed. P. Herrick, Supp.1976),' Pugh, Work of the Louisiana Supreme Court 1952-1953 Term, Evidence, 14 La.L. Rev. 220, 223 (1953). It is noted that “relevance” is not the test, for a photograph of a murder victim is usually “relevant” at the trial of the alleged perpetrator. It is whether the probative value of the photograph is outweighed by the danger that its introduction may “unduly arouse the jury’s emotions of prejudice, hostility or sympathy.” McCormick on Evidence § 185 (Cleary ed. 1972). Therefore, , in situations where the state has already made out its case and the photographs are merely cumulative in nature and are not “substantially necessary to show material facts or conditions” the probability is high that the probative value of these pictures will be outweighed by their prejudicial effect.

As a practical matter though, the introduction of these photographs is routinely upheld if any probative value or relevance is demonstrated by the state. See, e. g., State v. Cooper, 334 So.2d 211 (La.1976); State v. Chase, 329 So.2d 434 (La.1976); State v. Smith, 327 So.2d 355 (La.1976); State v. Nix, 327 So.2d 301, 334-335 (La.1975); State v. Larue, 324 So.2d 384 (La.1975); State v. Zeno, 322 So.2d 136 (La.1975); State v. Beach, 320 So.2d 142 (La.1975); State v. Ivy, 307 So.2d 587 (La.1975); State v. Normand, 298 So.2d 823 (La.1974), cert. den., 420 U.S. 908, 95 S.Ct. 827, 42 L.Ed.2d 838 (1975); State v. Chavers, 294 So.2d 489 (La.1974), cert. den., 419 U.S. 1111, 95 S.Ct. 786, 42 L.Ed.2d 808 (1975); State v. Bray, 292 So.2d 697 (La.1974); State v. Curry, 292 So.2d 212 (La.1974); State v. Fallon, 290 So.2d 273 (La.1974). Therefore, prosecutors are reinforced in their opinion that on review this court does not apply the test for admissibility of gruesome photographs, as traditionally stated, but rather asks simply whether the photographs were so outrageous as to necessitate that a new trial be conducted without them. We find no such necessity in the case before us.

Accordingly, defendant’s conviction and sentence are affirmed.

SANDERS, C. J., and MARCUS and DENNIS, JJ., concur.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice

(concurring).

I concur in the affirmance of defendant Scott’s conviction because I believe that the photographs at issue were admissible evidence. Their probative value (to identify the victim, and to reveal the manner in which death occurred) outweighs their possible prejudicial effect.

Otherwise,' the language of the opinion does not express my views.

      . State v. Morris, 245 La. 175, 157 So.2d 728 (1963) (reversible error to admit gruesome col- or photographs taken during the autopsy of the victim where the cause of death had already been established and the only remaining issue was whether the homicide was committed intentionally); State v. Morgan, 211 La. 572, 30 So.2d 434 (1947) (reversible error to admit gruesome photographs of the body of the victim for purposes of proving the corpus delicti, nature, scope and extent of the wound, when the corpus delicti had already been proven by the coroner’s testimony and the introduction of the proces verbal of the coroner’s inquest, and the nature, scope and extent of the wounds had been described by the coroner and there was no dispute as to these subjects at the time of the introduction of the photographs).

      . But see State v. Gilmore, 332 So.2d 789, 796 (La.1976), for the proposition that the trial judge should make the determination whether a stipulation as to the identity of the victim could prevent the admission of a photograph of the deceased into evidence, when that picture is being offered to prove the identity of the victim.


author: CALOGERO, Justice. DENNIS, Justice

text:
    STATE of Louisiana v. Ronnie TURNER and Johnnie Lee Turner.
    No. 57644.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 15, 1976.
    Dissenting Opinion Oct. 20, 1976.

      Tucker L. Melaneon, Marksville, for Ronnie Turner.
    Michael F. Kelly, Marksville, for Johnnie Lee Turner.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendants Ronnie Turner and Johnnie Lee Turner were jointly charged by Bill of Information with simple robbery, in violation of La.R.S. 14:62, and convicted after trial by jury. Thereafter they were each sentenced to serve nine years in the custody of the Louisiana Department of Corrections., They have each assigned eight purported errors in connection with their appeal but have argued in brief and orally only five of such assignments. Accordingly three of the assignments will be deemed abandoned. State v. Domingue, 298 So.2d 723 (La.1974).

ASSIGNMENT OF ERROR NO. 1.

Defendants assign as error that the judge erred in submitting to the jury, and advising them of, only two responsive verdicts as to each defendant, namely, guilty as charged and not guilty.

They point out that, under the terms of La.' C.Cr.P. art. 814(A)(41), at the time of this trial on September 15,1975, responsive verdicts to the charge of simple robbery included, besides guilty as charged and not guilty, guilty of attempted simple burglary. Defendants are correct in their assertions that the law did indeed at the time of this trial require the submission of the additional responsive verdict, guilty of attempted simple burglary.

However, defendants are incorrect in labeling the foregoing argument in brief an assignment of error, for in fact there was no objection made during the course of the trial with respect to the foregoing and there is in this record no assignment of error with respect thereto.

Counsel for the defendants concedes the foregoing and argues in brief that submission of inadequate responsive verdicts to the jury constitutes an omission of error “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence” under the provisions of article 920(2).

The legal question thus submitted has just recently been decided adversely to the defense position when in State v. Craddock, 307 So.2d 342 (La.1975), we held that

“alleged error concerning the sufficiency of the list of responsive verdicts given the jury, like error in the judge’s charge to the jury, is not reviewable under Art. 920(2) and may not be considered unless objection is made in the trial court in time for the trial judge to correct the error.” (p. 343)

Accordingly there is no merit in the defendants’ “assignment of error number one.”

ASSIGNMENT OF ERROR NO. 2.

Following their conviction and prior to sentencing, each defendant filed a motion in arrest of judgment on the ground that the bill of information was defective. They complained that essential averments of the crime of simple burglary were missing from the indictment, specifically that it failed to allege the entry of a building or structure, belonging to a person other than the accused. This complaint had not been raised prior to trial, nor even prior to conviction. The trial court’s rulings denying the motions are assigned as error.

The bill of information charges that Ronnie Turner and Johnnie Lee Turner “did enter without authority Poret’s located in Cottonport, Avoyelles Parish, Louisiana, with the intent to commit a theft therein.” The bill did not comply with the short form of indictment, of La.C.Cr.P. art. 465(A)(14), which provides:

“Specific indictment forms
A. The following forms of charging offenses may be used, but any other forms authorized by this title may also be used:
14. Simple burglary — A. B. committed simple burglary of the houseboat (or other structure, watercraft, or movable, as the case may be) belonging to C. D.” (emphasis added)

The indictment does, however, substantially trace the language of the statute (R.S. 14:62) which provides:

“Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or theft therein . . .” La.R.S. 14:62.

Defendants cite a number of cases which held that an indictment charging an individual with burglarizing a business was fatally defective, “there being no charge that any house, structure, or place was broken into and entered.” (emphasis added) State v. McDonald, 178 La. 612, 152 So. 308 (1934).

But since the decision of State v. James, 305 So.2d 514 (La.1974), this sort of technical exactitude has not been required of the indictment. James held that:

“ * * * [WJhere in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense charged by it through examination of the pleadings and the evidence in the instant prosecution.”

Defendants do not claim to have been prejudiced in the preparation of their defense by the deficiency in the indictment, and while both defendants filed motions for bills of particulars, neither requested further information as to the location of the alleged burglary. A mere reading of the information negatives defendants’ contention that they were deprived of their constitutional right to be informed of the nature and cause of the accusations against them. La.Const.1921, Art. I, § 10, La.Const.1974, Art. I, § 13. There was no substantial defect in the indictment, then, as defendants allege, but simply a technical insufficiency which cannot be raised for the first time after conviction.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6.

Defendants assign as error the trial court’s refusal, after a hearing, to grant their motions to suppress physical evidence obtained pursuant to an allegedly invalid search warrant. They contend that the affidavit authorizing the search and subsequent seizure did not contain sufficient specific facts upon which a neutral magistrate could make an independent determination that probable cause existed as required by the fourth amendment via the fourteenth amendment.

The affidavit at issue states:

“THAT A SEARCH WARRANT SHOULD ISSUE FOR THE SEARCH OF ....
Johnny Turner residence located on Ciro St. siracusa subdivision 6th Ward Morgan City, La. this House trailer being cream in color with brown trim. This trailer located the second residence on the South side of Ciro St. West of Joseph Street. . FOR THE PURPOSE OF SEIZING THE FOLLOWING DESCRIBED PROPERTY .
Clothing: Western style shirts, Knit Dress Pants and suits .... FOR THE FOLLOWING REASONS:
Received information from an informant that he has personal knowledge that the above mentioned clothing is in this above mentioned house trailer. The informant saw the clothing and was told by one of the people who had the clothing that they were stolen out of a store in Cottonport, La. I have used this informant in the past and his information has resulted in arrests and convictions. Informant wishes to remain anonymous. Permission is granted to conduct this search in the daytime, nighttime, Sundays and holidays.”

Defendants point specifically to the following language in the affidavit: “The informant saw the clothing and was told by one of the people who had the clothing that they were stolen out of a store in Cotton-port, La.” Defendants argue (in part) that the affidavit is fatally defective because it does not contain sufficient facts to support a finding by the issuing judge that the incriminating statement given by the third party to the informant (that the clothes were stolen from a store in Cottonport, La.) was reliable.

Considering the probable cause requirement for the issuance of a valid search warrant under the Fourth Amendment to the United States Constitution, the United States Supreme Court in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) found invalid an affidavit which merely stated that police officers had “received reliable information from a credible person and do believe” that narcotics were being illegally stored on the described premises.

The Court held that when an affidavit is based upon hearsay information, it must contain some of the circumstances supporting both the informant’s conclusion, and the affiant’s conclusion that the informant was reliable, to afford the issuing magistrate an opportunity to reach an independent determination that probable cause exists to make the search.

Applying the standard set forth in Aguilar, the United States Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) found insufficient a more detailed affidavit. The affidavit alleged that the FBI had observed Spinelli frequenting an apartment which had two separate telephones listed in another name, that Spinelli was known to the affiant as a bookmaker and a gambler, and that a reliable confidential informant had reported that Spinelli was conducting a bookmaking operation on those two telephone lines. In finding that the two-pronged test in Aguilar had not been met, the court held that a statement that the informant was reliable, without more, was not sufficient. More importantly, the court ruled that if the informant was relying on another source, the affidavit should contain some information establishing the reliability of the source. Where the source of the information supplied by the informant is not disclosed, the court held, “it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” 89 S.Ct. at 589.

However, the Court carefully noted:

“In holding as we have done, we do not retreat from the established propositions that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, [18 L.Ed.2d 62] (1967); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, [13 L.Ed.2d 684] (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 735-736, [4 L.Ed.2d 697] (1960).”

Finding that the standards set forth in Aguilar and Spinelli had been sufficiently complied with, the United States Supreme Court in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, held valid a search warrant issued upon an affidavit containing an assertion that the informant over an extended period had been buying illicit liquor on certain premises described therein. The court held:

“Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interest, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search.” 91 S.Ct. at 2082.

Reviewing and applying these decisions, we find that defendants’ contentions are without merit. Here, the informant reported his personal observation of the clothing in defendant’s trailer and stated that he had been told by one of the people who had the clothing that it was stolen out of a store in Cottonport, Louisiana. The declaration made by the third party (a person “who had the clothing”) was an admission against his penal interest (La.R.S. 14:69 makes criminal the procuring, receiving or concealing of stolen goods) and under United States v. Harris, supra, this admission was sufficient to lend credibility to the statement made and relied upon by both the informant and the affiant.

Admittedly the admission against penal interest in Harris was by the informant to the affiant-policeman, while in this case the admission against penal interest was by the possessor to the informant. We do not find that the foregoing distinction between the facts of Harris and this case warrants a different result. Like the United States Supreme Court in Harris we believe here that common sense induces a prudent and disinterested observer to credit the possessor’s statement transmitted to the affiant by the credible informant.

In sum there was probable cause for issuance of a search warrant in this case where a credible informant related to an affiant police officer that clothing which the informant had personally viewed in an apartment was, by the possessor thereof, admitted to have been stolen from a small town store.

We recently reaffirmed our position that, in judging the sufficiency of affidavits in support of search warrant applications, the trial court’s determination of probable cause should be paid great deference by reviewing courts; further, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded the warrants. State v. Nix, Mule, Fulford, 327 So.2d 301 (La.1975). Thus, this part of defendant’s assignment is without merit.

In addition, defendant Johnnie Lee Turner complains that the magistrate was not informed as to when the tip was received and therefore could not determine that probable cause still existed at the time the warrant was issued. The record discloses that the crime took place on July 7,1975, and the warrant was issued on July 11, 1975.

In considering whether an affidavit referred to information sufficiently recent so as to justify a finding of probable cause at the time the search warrant was issued, the United States Supreme Court in Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932) stated

“. . it is manifest that the proof must be of facts so closely related to the time of the issupng] of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.’’ (emphasis added)

Confronted with this question of timeliness, our Court in State v. Boudreaux, 304 So.2d 343 (La.1974) citing Sgro, stated:

“The absence of a date for each episode described in the affidavit is not fatal, however. The language of the affidavit, including the use of the present tense, indicates that the affiants are describing a course of conduct continuing to the date of the warrant. .
“such an affidavit has been held to be adequate if, in a commonsense construction, it can be said from the face of the affidavit that the information received by the affiant was current and not stale. See: Borras v. State, 229 So.2d 244 (Fla., 1969); State v. Clay, 7 Wash.App. 631, 501 P.2d 603 (1973); Sutton v. State, 419 S.W.2d 857 (Tex.Cr.App., 1967); Lewis v. State, 126 Ga.App. 123, 190 S.E.2d 123 (1972). See also Annotation, Search Warrant: Sufficiency of showing as to time of occurrence of facts relied upon, 100 A.L.R.2d 525 (1965).” 304 So.2d at 345-46.

The language used in the affidavit, stating that the informant “has personal knowledge that the above mentioned clothing is in this above mentioned house trailer,” was sufficient to support a finding by the issuing judge that the affiant was describing a present and continuing circumstance to the date of the affidavit’s expiration.

Accordingly, defendants’ assignment number six lacks merit.

ASSIGNMENTS OF ERROR NOS. 7 and

Defendants each moved to quash the bill of information and filed a “motion seeking recognition and implementation of constitutional rights.” In connection with each they assert that the failure of the State of Louisiana to implement a uniform system of securing and compensating qualified counsel violated their rights to equal protection and due process of law under Article 1, § 13 of the 1974 Louisiana Constitution. The motions were denied and these assignments of error result therefrom.

Louisiana Constitution of 1974, article I, § 13 provides in part:

“. . . the legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

Defendants contend that the indigent defender system currently in operation in the State of Louisiana is not uniform that the legislature has not provided for a uniform system of securing and compensating qualified counsel to indigents as dictated by Article I, § 13.

This very issue has been answered by this Court contrary to the assertions of defendants herein in our recent case of State v. Bryant, 324 So.2d 389 (La.1976). Accordingly there is no merit in defendants’ assignments of error numbers seven and eight.

Accordingly the conviction and sentence of defendants are affirmed.

DENNIS, J., dissents with opinion.

DENNIS, Justice

(dissenting).

I respectfully dissent. An error in the written list of responsive verdicts given to the jury for use during its deliberation should be considered an error discoverable on the face of the pleadings and proceedings. An error in a verdict written on the same sheet of paper containing the written list of responsive verdicts is considered to be an error of this magnitude and manifestation. State v. Comeaux, 277 So.2d 647 (La.1973); State v. Romero, 152 La. 728, 94 So. 370 (1923). The omission of a responsive verdict in the instant case foreclosed the jury from reaching a verdict provided by law. In my opinion the defendant was seriously prejudiced by a trial court error equally as apparent on the face of the record as an error in a verdict and the defendant’s conviction and sentence should be reversed and remanded for a new trial. See State v. Craddock, 307 So.2d 342 (La.1975) (Barham, J., dissenting).

      . As a matter of interest the Louisiana legislature has recently passed Act 653 relative to the indigent defender system of the state. That statute, not effective until the sixtieth day following the August 2 adjournment of the legislature, has yet to be reviewed by this Court.


author: SANDERS, Chief Justice. DIXON, Justice

text:
    STATE of Louisiana v. Walter BURNETTE.
    No. 57665.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 13,1976.

      Salvatore Panzeca, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Walter Burnette with the armed robbery of Pat O’Brien in violation of LSA-R.S. 14:64. After trial, the jury found the defendant guilty as charged. The trial judge sentenced the defendant to ninety-nine years in the custody of the Department of Corrections.

Defendant appeals his conviction and sentence, relying on nine assignments of error.

The background facts are these: On the night of May 26,1974, two men later identified as Walter Burnette and Glenn Pass-man, came to the St. Tammany Parish home of Pat O’Brien, a widely known night club owner. After informing O’Brien that they had car trouble and needed to call for wrecker service, he admitted them. Bur-nette then drew a pistol on O’Brien and demanded his money. In a struggle, O’Brien was wounded and beaten. Nonetheless, he was able to grab a 22-calibre rifle and fire at the two men. The men then fled, taking with them two pistols owned by the victim. Both men were later apprehended.

ASSIGNMENT OF ERROR NO. 1

The defendant assigned his first error to the trial court ruling sustaining the State’s objections during his opening statement. Defendant argues that the State’s numerous objections during the opening statement, which the court sustained, prejudiced defendant’s right to a fair trial.

Under Article 765 of the Louisiana Code of Criminal Procedure, the opening statement on behalf of defendant is optional. When the defense elects to make an opening statement, it is confined to an explanation of the nature of the defense and the evidence by which he expects to establish it. See State v. Roberts, La., 278 So.2d 56 (1973); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971).

The State’s objection, made four times, was that the defense counsel was not merely explaining the nature of the defense or outlining the evidence which he expected to offer, but was actually arguing his case to the jury. Defense counsel was stating that the defendant did not have to make an opening statement, that he could remain silent, and that the presumption of innocence would protect his client.

The State’s objections were properly made. There was no harassment. As the trial judge correctly noted, defense counsel was exceeding the scope of the opening statement and was arguing his case to the jury.

The trial court did not abuse its discretion in sustaining the objections.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, the defendant contends that his motion for a change of venue should have been granted because of the extensive pre-trial publicity, repeatedly identifying the defendant and another as the persons apprehended for the robbery.

Louisiana Code of Criminal Procedure Article 622, dealing with a change of venue, provides:

“A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
“In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

In State v. Bell, La., 315 So.2d 307 (1975), this Court set forth the following factors to be considered in determining whether to change venue:

“(1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect to reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.”

In Bell, the Court stated that a defendant was entitled to a change of venue if he established that there were influences in the community which would affect the answers of the jurors on the voir dire, or the testimony of witnesses at the trial, or that for any reason, a fair and impartial trial could not be obtained in the parish.

The evidence offered on the motion for change of venue consisted almost entirely of defense Exhibit No. 1, consisting of fourteen newspaper clippings, containing news stories concerning the crime or proceedings. The State and defense stipulated that the stories were published after the commission of the crime.

Only one of the clippings shows the name of the newspaper in which it appeared, though all were introduced as having been taken from newspapers circulated in St. Tammany Parish, where the trial occurred. Only two of the clippings show the date of publication.

After carefully reviewing the evidence, as well as the answers of the prospective jurors during voir dire examination, we conclude that the defendant has not established a basis for a change of venue.

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

In these assignments of error, defendant argues that the trial court erred in refusing to act on the State’s objectionable references to “mug shots” in its opening statement and in its questioning of witnesses.

In State v. Price, La., 325 So.2d 780 (1976), while affirming the conviction despite the use of the term “mug shot,” we stated that in some circumstances the use of the term might refer to another crime in violation of Article 770 of the Louisiana Code of Criminal Procedure.

In the instant case, however, there was no contemporaneous objection or motion for mistrial. In fact, defense counsel himself repeatedly referred to the photographs as “mug shots” during his cross-examination of witnesses.

Under Louisiana Code of Criminal Procedure Article 841, we cannot consider these alleged errors on appeal. 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 Nos. 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, the defendant alleges that the lower court committed error by handcuffing and gagging him during a substantial portion of the trial. Defendant argues that the trial court violated the principle that the defendant is “entitled to dignity.” He relies upon State v. Kinchen, La., 290 So.2d 860 (1974) and State v. Tennant, 262 La. 941, 265 So.2d 230 (1972).

In the present case, the defendant’s conduct in the courtroom was disruptive. He threw an ashtray, striking the trial judge. Additionally, he repeatedly cursed the judge.

In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the Supreme Court of the United States laid down guidelines for the trial of a disruptive defendant as follows:

“It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.”

We have recognized that the use of restraining devices, including manacles, is within the sound discretion of the trial judge. In the absence of a clear showing of abuse of discretion on the part of the trial judge, a conviction will not be disturbed on appeal because of the restraint imposed upon defendant. See State v. Daniel, La., 297 So.2d 417 (1974); State v. Tennant, supra.

In the present case, the defendant’s courtroom conduct was highly disruptive and reflected a flagrant disregard for elementary standards of decorum. The trial judge, in our opinion, acted well within the range of discretion vested in him.

Defendant’s assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

In Assignment of Error No. 6, defendant alleges that the trial court erred in allowing the State to bring into the courtroom a “mysterious bag,” which was seen by the jury but the contents of which were never offered in evidence. The bag was described by the trial judge as a “plain paper bag with no tag on it.”

In brief, defendant contends that the presence of the bag was prejudicial, although at the time of the objection he advanced no specific basis for his objection. Defense counsel stated: “I object to the bringing in of the bag.”

A general objection to a trial court matter for which no ground is stated presents nothing for review of this Court. State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); State v. Marcell, 248 La. 1019, 183 So.2d 341 (1966); State v. Foss, 158 La. 471, 104 So. 211 (1925). Moreover, we agree with the trial judge that a plain paper bag could have no adverse effect on the jury.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant reserved Assignment of Error No. 7 to the trial court’s severance of co-defendant Passman over his objection. Defendant argues that because co-defendant Passman chose not to waive his right against self-incrimination when called to testify, he was denied the right to cross examine Passman as a hostile witness and was denied the benefit of any inquiry as to certain exculpatory testimony by Passman.

Contrary to defendant’s argument, the co-defendant had the right to assert his Fifth Amendment privilege whether he was tried jointly or separately. Moreover, we have often held that severance is not matter of right; rather, the granting or refusal of a motion for a severance is within the sound discretion of the trial court judge whose ruling will not be disturbed absent a clear abuse of discretion. State v. Frierson, La., 302 So.2d 605 (1974); State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971); State v. Ross, 263 La. 271, 268 So.2d 222 (1972). We find no abuse of discretion here.

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

In Assignment of Error No. 8, defendant complains of the trial court’s denial of his motion for a continuance.

The Louisiana Code of Criminal Procedure provides that “an application for a continuance shall be by written motion alleging specifically the grounds upon which it is based.” LSA-C.Cr.P. Art. 707. Initially, we note that the defendant did not file a written motion for a continuance. He simply “reurged” his written motion filed earlier, which had been granted. Additionally, he orally urged his co-counsel’s absence due to illness as a ground for his continuance motion. The motion does not comply with the requirement of Article 707 that it be in written form. See State v. Weathers, La., 304 So.2d 662 (1974).

The defendant’s motion for continuance filed on January 7, 1975, and heard on January 13, 1975, was based upon the inaccessibility of the defendant to his defense counsel. For a period of approximately sixty days prior to trial, defendant was moved from several different jails. Defense counsel argues that because of his law practice and its location in New Orleans, he was unable to adequately confer with the defendant. The court granted a continuance to January 15, 1975, to allow defense counsel additional time to confer with his client. In our opinion, the trial judge correctly denied an additional continuance on this ground.

Defendant’s contention that the court erred in not continuing the case on the day of trial because of his co-counsel’s absence is also without merit. Defendant was represented by an experienced attorney, thoroughly familiar with the case and quite capable of handling the defense.

The granting of a continuance is within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal unless it is clearly arbitrary and unreasonable. State v. Ganey, 246 La. 986, 169 So.2d 73 (1964); State v. Freeman, 245 La. 665, 160 So.2d 571 (1964). We find no abuse of discretion under the circumstances. See State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971).

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

As we have observed in connection with Assignment of Error No. 5, the defendant became disruptive in the courtroom. After he was handcuffed and gagged, the defense made an oral motion for the appointment of a lunacy commission to determine the defendant’s capacity to stand trial. The motion was based entirely on the disruptive conduct.

Louisiana Code of Criminal Procedure Article 642 provides:

“The defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.”

In denying the motion for the creation of a lunacy commission, the trial judge stated:

“As I stated before on that motion, the Louisiana law allows the appointment of a lunacy commission to determine present sanity if the court has reason to believe that such a lunacy commission is needed and I have dealt with this defendant now for at least three days personally. I have listened to motions filed by him. I have listened to him plead his own case. The court is convinced that there is no insanity involved, that the only thing involved is intentional intent to disrupt the judicial system, which the court will not allow and will not subvert it by granting a motion of this type, and I deny the motion.”

The observations of the trial court judge are given great weight with regard to the appointment of a lunacy commission. State v. Luquette, La., 275 So.2d 396 (1973). In the absence of a clear abuse of discretion by the judge, his ruling will not be disturbed. We find no abuse of discretion here.

Assignment of Error No. 9 is without merit.

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

DIXON, J., concurs and assigns reasons.

DIXON, Justice

(concurring).

While in agreement with the result, I disagree with the treatment of Assignment of Error No. 1 as unduly restrictive on defense counsel. Part of a lawyer’s function is argument. The district attorney was wrong in objecting to the argument, and the trial judge erred in sustaining the objections. Nevertheless, the record does not support the defendant’s contention that his right to a fair trial was prejudiced by these errors.

Further, the dicta in the treatment of Assignment of Error No. 7 is misleading. There are times when a severance must be granted to jointly charged defendants; the decision on a motion to sever may not be “discretionary” with the trial judge.


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

text:
    STATE of Louisiana v. Miguel Angel UNZUETA.
    No. 57666.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Per Curiam On Denial of Rehearing Oct. 15, 1976.

      Maurice J. LeGardeur, Jr., Covington, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Patrick J. Berrigan, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Appellant Miguel Angel Unzueta was charged by bill of information under Article 64 of the Criminal Code with the armed robbery of Jerome Hart. In a jury trial he was found guilty as charged and sentenced to imprisonment for nine years at hard labor. On this appeal appellant relies on four assignments of error.

I.

Prior to trial, on November 6, 1974, defendant filed a motion for a bill of particulars. One of the thirty-three questions propounded therein inquired: “Had an arrest warrant been issued for the arrest of the defendant at the time he was arrested?” Shortly thereafter, on November 11, the State answered this interrogatory in the affirmative. Later, forty-three days before trial, the State amended the bill of information relative to the quoted interrogatory by stating, to the contrary, that an arrest warrant had not been issued at the time of defendant’s arrest. The amendment also advised that defendant was arrested based on information of witnesses to the armed robbery.

It is contended on behalf of the defense that it was an abuse of discretion on the part of the trial judge to allow the amendment. As the argument is understood, allowing the amendment enlarged the proof the State could offer to establish the legality of the arrest. Under the first answer to the bill of particulars the proof of the legality of the arrest could only be accomplished by production of an arrest warrant; whereas, the amended answer to the bill of particulars enlarged the scope of proof the prosecutor could employ and permitted a showing of probable cause for defendant’s arrest without a warrant. This latter showing is authorized by Article 213 of the Code of Criminal Procedure, a showing which would not be allowed under the initial answer to the bill of particulars informing that defendant’s arrest was based upon a warrant.

According to the argument, if this amendment to the State’s answer to the bill of particulars had not been allowed, the trial judge would have been required to suppress defendant’s confession as having been obtained as the result of an invalid arrest. This result would follow, it is said, because the State would have been limited under the initial answer to the motion for bill of particulars to the production of an arrest warrant to support the legality of defendant’s arrest, and no such warrant existed. Therefore, the confession obtained as a result of an unlawful arrest would likewise be invalid as the fruit of the poisonous tree.

The contention is answered by this Court’s decisions in State v. Jackson, 303 So.2d 734 (La.1974), and State v. Harris, 297 So.2d 431 (La.1974), holding that a technical illegality in an arrest does not impair the validity of a subsequent confession freely and voluntarily given after full Miranda warnings.

It is noted that the State was unaware of the fact that defendant had been arrested without a warrant at the time of the initial answer to the motion for bill of particulars. Moreover, the State’s amendment corrected the error in ample time prior to trial to permit the defendant to adjust his defense to the newly furnished information.

While the bill of particulars is intended to assure the defendant a full understanding of the charge in order that he might, in fairness, properly defend himself, it was never intended as a trap for the unwary district attorney. It is for this reason that Article 485 of the Code of Criminal Procedure permits the district attorney to cure a defect in a bill of particulars.

There is no merit to this contention.

II.

Defendant was represented by two lawyers. At one time during the trial one of the defense counsels conducted the cross-examination of a State’s witness, while the other undertook to raise objections to questions propounded by the State to that same witness. When the State’s attorney seemingly objected to the procedure, the trial judge directed that only one defense attorney could be involved in the cross-examination of any particular witness, and only he could interpose objections to the State’s questioning of that witness. The same limitation was imposed on counsel for the State.

This ruling, the defense complains, was a limitation upon his right to the effective assistance of counsel prohibited by the Sixth Amendment to the United States Constitution and the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Article 17 of the Code of Criminal Procedure recognizes that the trial judge has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly manner. His ruling was in keeping with this mandate and the better practice for orderly conduct of a trial. The effect of the ruling was not to deprive defendant of the effective assistance of counsel, but, on the contrary, was designed to permit counsel to be more effective.

There is no merit to this assignment.

III.

The defense assigns as error the fact that the trial judge refused to charge the jury on the penalty for armed robbery set forth in Article 64 for the Criminal Code. This charge, he contends, is required by Article 802 of the Code of Criminal Procedure.

Although the minutes of court disclose that the judge did deny some requested charges, the suggested charge relied on here is not in the record and the Court is not referred to a contemporaneous objection lodged by the defense to the judge’s failure to give the charge. Article 841 of the Code of Criminal Procedure requires such an objection.

State v. Blackwell, 298 So.2d 798 (La.1974), held that in those jurisdictions where the jury determines only guilt or innocence and the court imposes the penalty, as is the case in Louisiana, it is not error for the court to refuse to instruct the jury on possible penalties. The general view is that penalty is simply of no concern to the jury. An exception to this rule has been made in this Court in the case of an accused who pleads “not guilty” and “not guilty by reason of insanity”. State v. Babin, 319 So.2d 367 (La.1975).

This assignment has no merit.

IV.

In his closing argument the District Attorney made these remarks:

“Maybe on T.V. they always get the guns, but it didn’t happen in court. We have convicted him without it.”

and later,

“Only one man save the man with the gun in his hand, and as a prosecutor, I wish I had Judge Tanner in that dadgum Friendly Grocery and he could come and testify. I wish I had Father Hotard . . .."

After each remark defense counsel objected and the trial judge overruled his objection.

This assignment complains that these rulings constituted reversible error. The theory of the defense is that these remarks were “highly prejudicial”, and the remark, “we have convicted him without it”, is an impermissible comment, and an expression of personal opinion by the District Attorney contrary to Article 774 of the Code of Criminal Procedure and this Court’s decision in State v. Kaufman, 304 So.2d 300 (La.1974).

Considered in the context of the entire record and the principles of law relating to this issue, we find no error in the rulings.

Jerome Hart, the victim of the robbery, testified that defendant had a revolver in his hand when he approached Hart in the grocery store where he was employed and said, “This is a holdup, brother.” Thus, although the gun was not produced at the trial, evidence was produced that a gun was used by defendant in the robbery. Reference to the gun, therefore, was a permissible comment upon the evidence. Such a comment, though prejudicial, is proper and authorized by Articles 774 and 921 of the Code of Criminal Procedure and the jurisprudence of this State. State v. Lockett, 332 So.2d 443 (La.1976); State v. Curry, 262 La. 280, 263 So.2d 36 (1972); State v. Dennis, 250 La. 125, 194 So.2d 720 (1967).

The prosecutor’s remark, “we have convicted him without it,” is likewise authorized by Article 774 as a conclusion of fact that the State may draw from the evidence admitted (Hart’s testimony that a revolver was used) and to the lack of evidence (the failure to produce the revolver).

This latter remark is not an expression of the prosecutor’s personal opinion based upon his personal knowledge of facts outside the record. Rather, the remark should more appropriately be regarded as a conclusion of law he draws from the evidence.

This assignment is without merit.

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

TATE, J.,

with regard to Assignment # 3, I concur, although still of the opinion that State v. Blackwell, 298 So.2d 798 (La. 1974) should be overruled, at least prospectively.

DIXON, J.,

concurs, believing there is a “Blackwell” issue, but that it was not raised and is not before us.

CALOGERO, J.,

concurs. With respect to assignment # 3 and the discussion of State v. Blackwell, see my sentiments expressed in dissent in State v. Prater, La., 337 So.2d 1107, decided this date.

DENNIS, J., concurs for the reasons stated by TATE and DIXON, JJ.

PER CURIAM:

In defendant’s application for rehearing he complains that our opinion erroneously stated, in treating Assignment III, that his requested charge was not in the record. We were in error in this respect. The requested charge was in the record and the record did present the issue of whether the trial judge should instruct the jury on the penalty for armed robbery — the question decided in State v. Blackwell, 298 So.2d 798 (La.1974).

However, notwithstanding these errors in our opinion, we did consider the Blackwell issue and reaffirmed that holding. Therefore, the erroneous statements concerning the record did not deprive defendant of a reconsideration of the Blackwell issue.

Justices Dixon and Dennis concurred in the original opinion. In view of this correction, they now dissent from the original opinion, and dissent from the denial of rehearing.

      . La.Code Crim.Pro. art. 802:
      “The court shall charge the jury:
      (1) As to the law applicable to the case;
      (2) That the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and
      (3)That the jury alone shall determine the weight and credibility of the evidence.”

      . La.Code Crim.Pro. art. 774 provides:
      “The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
      “The argument shall not appeal to prejudice.
      “The state’s rebuttal shall be confined to answering the argument of the defendant.” La.Code Crim.Pro. art. 921 provides:
      “A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”


author: CALOGERO, Justice. TATE, J.,

text:
    STATE of Louisiana v. Jackie CHATMAN.
    No. 57764.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 15,1976.
    Charles C. Trascher, III, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

The state charged defendant, Jackie Chatman, by bill of information with two counts of aggravated battery. After trial, the jury found him guilty as charged on one count and guilty of simple battery on the other count. The judge sentenced him to ten years imprisonment at hard labor on the aggravated battery conviction and to six months in jail on the simple battery conviction, to run consecutively. Defendant does not appeal the simple battery conviction and sentence; on this appeal of the aggravated battery conviction and sentence, he relies upon two specifications of errors.

ASSIGNMENT OF ERROR NO. 2.

Defendant assigned as error the trial court’s acceptance of Mrs. Linda Armstrong as an expert to testify in the field of laboratory analysis of dried blood on physical objects. Mrs. Armstrong is a criminalist with the North Delta Crime Lab in West Monroe with a degree in Medical Technology from Northeast Louisiana University. She works in the department of analysis of controlled dangerous substances, blood alcohols, serology, etc., and has had college level courses in chemistry. She had worked for two years at Schumpert Memorial Hospital in Shreveport, Louisiana before being employed at the North Delta Crime Lab. She had been qualified as an expert in court approximately 50 times previously. While she had never before testified about dried blood samples, she often testified concerning blood alcohol levels. Most of her lab work consists of analysis of controlled dangerous substances, but when she worked for the hospital for two years most of her work was with blood samples, and she is certified by the American Society of Clinical Pathologists. When she trained for her present position she was taught to deal with blood samples and to determine blood groups, etc.

Defendant acknowledges the well established jurisprudential rule that the competency of an expert witness is a question for the trial judge and that he has wide discretion in the matter that will not be disturbed on appeal in the absence of a showing of abuse of that discretion. See, e. g., State v. Square, 257 La. 743, 244 So.2d 200 (1971). However, he argues that the trial judge in this case abused his discretion since the witness had never before testified as an expert concerning dried blood samples.

In light of the facts related herein-above concerning the witness’ education, training and work experience, she was sufficiently qualified to testify as an expert on the subject for which she was presented. There is no showing that the judge abused his discretion in accepting the witness as a qualified expert and allowing the opinion testimony which was presented.

The assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4.

Defendant assigns as error the trial court’s refusal to permit the defendant to read to the jury in closing argument the penalty provisions of the criminal statute under which he was charged.

The assignment of error is without merit. See State v. Blackwell, 298 So.2d 798 (La.1974).

Accordingly the convictions and sentences are affirmed.

TATE, J.,

with regard to assignment No. 4,1 concur, although I am still of the opinion that State v. Blackwell, 298 So.2d 798 (La.1974) should be overruled, at least prospectively.

DIXON and DENNIS, JJ., dissent.


author: MARCUS, Justice. TATE, Justice CALOGERO, Justice

text:
    STATE of Louisiana v. Milton PRATER.
    No. 57586.
    Supreme Court of Louisiana.
    Sept. 13, 1976.

      Lyall G. Shiell, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Milton Prater was charged by bill of information with the distribution of heroin, in violation of La.R.S. 40:966. After trial by jury, he was found guilty as charged and was thereafter sentenced to life imprisonment at hard labor. On appeal, he relies upon two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in refusing to charge the jury that, in the event defendant was found guilty of distribution of heroin, a mandatory life sentence would be imposed. Defendant argues that justice requires the jury be informed of this mandatory penalty so that they would give “more careful consideration to their verdict.”

There is no merit to this contention. Under our law, the jury in a criminal case is the judge of the law and facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the court. La.Code Crim.P. art. 802. Upon a verdict of guilty, the sentence is imposed by the court on the defendant. Id. art. 871.

Our jurisprudence is uniform in holding that the imposition of sentence or the fixing of the punishment for conviction is solely within the province of the judge and is not a function of the jury which is concerned only with the determination of guilt or innocence of the accused. State v. Blackwell, 298 So.2d 798 (La.1974); State v. Lewis, 296 So.2d 824 (La.1974); State v. Harris, 258 La. 720, 247 So.2d 847 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); State v. Green, 244 La. 80, 150 So.2d 571 (1963). Likewise, we have held that sentence regulations, such as those relating to mandatory terms, form no part of the applicable law for the judge’s charge to the jury. State v. Harris, supra; State v. Green, supra. In other jurisdictions where the jury determines only guilt or innocence and the court imposes the penalty as in Louisiana, it is not error for the court to refuse to instruct the jury on possible penalties. The general view is that penalty is simply of no concern to the jury. State v. Blackwell, supra, and authorities cited therein.

Accordingly, we do not find that the trial judge erred in refusing to instruct the jury on the penalty that would be imposed by the court on the defendant in the event of his conviction of the crime charged. This assignment of error is without substance.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in overruling his objection to the testimony of Detective Branham that he “observed between 12:35 and 2:50 numerous transactions take place” at the location where the officer had defendant under surveillance immediately prior to his arrest. Defendant argues that there had been no foundation for this testimony and that it was ambiguous. He further submits that the testimony was particularly prejudicial in view of the fact that there was no evidence of the sale or distribution of heroin by him other than the testimony of Edward Prevost, a well-known police character who had been promised immunity.

We find no substance to this contention. Detective Branham, a police officer for ten years, testified as to his surveillance of defendant. He described what he saw prior to, during and after the offense here charged. In our view, he had sufficient experience and knowledge of narcotics transactions to express an opinion that he observed “numerous transactions.”

As a general rule, a witness is ordinarily incompetent to give opinion testimony. La.R.S. 15:463 provides:

Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.

It is nonetheless well settled that, in exception to the rule of La.R.S. 15:463, a witness may state a natural inference from facts that he had observed. However, it is necessary that the witness state the basic facts upon which the inference was based. State v. Rogers, 324 So.2d 403 (La.1975); State v. Davalie, 313 So.2d 587 (La.1975); State v. Lewis, 288 So.2d 324 (La.1974).

Furthermore, the testimony of Edward Prevost was not the only testimony at trial of the commission of the offense. Deandrea Sutherland, a companion of Pre-vost, described how she and Prevost bought heroin from the accused at the time in question. Officer William Schultz likewise testified that he watched the sale of heroin to Prevost and Sutherland by the defendant.

In sum, we find no merit in this assignment of error.

DECREE

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

TATE, J., concurs and assigns reasons.

DENNIS and DIXON, JJ., dissent.

CALOGERO, J., dissents and assigns reasons.

TATE, Justice

(concurring).

Under State v. Blackwell, 298 So.2d 798 (La.1974), the trial court is entrusted with discretion as to whether to charge the jury as to the sentences applicable to the offense, and as to whether to permit the attorneys to argue penalties to the jury. The reason expressed for permitting this discretion is that, technically speaking, sentences and penalties are a function of the trial judge, not of the trial jury, so therefore the judge is not required to permit to hear charges and argument relating to penalties.

In Blackwell, three members of the court dissented from this construction of our statutory law. The dissenting judges noted that “the law” applicable to the charge tried includes the penalty. They also noted that it is unrealistic to hold that the jury has no function with regard to the penalty imposed when, in fact, the penalty results from the verdict chosen by the jury. We noted that, in factually borderline instances, the seriousness of the penalty (whether penitentiary or parish jail, for example) might be more indicative to the jury of the measure of the criminal conduct charged than the technical distinctions between the offenses, couched in legalisms often obscure to laymen.

I remain convinced that the dissenting view in Blackwell is correct. However, I am unwilling to reverse the present conviction, because it was tried in reliance upon the ruling of the majority in Blackwell-, and I cannot agree with the dissenting view that the mandatory-penalty feature of the present case presents a functionally significant distinguishing feature preventing application of the Blackwell rationale.

I do believe that Blackwell should be overruled at least prospectively: In order to perform their important functions in the administering of criminal justice, jurors should be fully informed of the consequences of their verdicts, including the penalties involved. No technicality of legal reasoning persuades me otherwise.

This view is reinforced by the recent decision of the United States Supreme Court, when it held unconstitutional the penalty provision in our first-degree murder statute in Roberts v. Louisiana,-U.S.-, 96 S.Ct. 3001, 49 L.Ed.2d-(1976). There, our high court emphasized the importance of jury consideration of the seriousness of the penalty, for meaningful jury evaluation of the consequences of criminal conduct.

The present case is illustrative of the difficulty involved in administering the Blackwell rule, which permits charge and argument as to penalty in the discretion (or not) of the trial court. The split decisions in two other decisions rendered this date, State v. Chatman, 337 So.2d 1106 (La.1976), and State v. Unzueta, 337 So.2d 1102 (La.1976), are likewise persuasive indications to the same effect.

It seems to me that, sooner or later, Blackwell will be overruled, in favor of requiring the trial court to charge the jury as to the penalties and to permit arguments as to same, if requested. When faced with the issue in the future, therefore, the trial courts of this state might well exercise their discretion in favor of giving charges and permitting arguments as to penalties, in view of the decisions of at least four justices of this court (see dissents to this majority opinion) who now agree that, despite Blackwell, arguments as to penalty should be allowed for jury consideration, at least in some instances.

While I do not believe that the present conviction should be reversed, since tried without prior indication of the erosion of the Blackwell rationale, in any case tried after the finality of the present decision I shall regard the bench and bar as on notice that, in the view of a majority of this court, a charge and argument may be required and permitted, despite Blackwell, when the statutory offense requires a mandatory legislative penalty, with no judicial discretion as to its imposition following verdict. Thus, to this extent at least, Blackwell may be regarded as overruled prospectively by the present opinion.

CALOGERO, Justice

(dissenting).

In its opinion the majority holds that a person on trial for the crime of distribution of heroin has no right to have the jury informed that upon a guilty verdict a mandatory sentence of life imprisonment will be imposed. I disagree with that holding, because I feel that this jury should have been told the automatic effect of its action in finding defendant Prater guilty. In State v. Blackwell, 298 So.2d 798 (La.1974), we held that the jury need not be told the range of penalties that could be imposed if the defendant were convicted of the crime of armed robbery. We made this decision because the penalty for armed robbery can vary from a minimum of five years to a maximum of ninety-nine years on the basis of whatever clemency or harshness the trial judge feels is appropriate in a particular case. We noted in that opinion, however, that the result would be different were the penalty made mandatory by the statute. We were thinking there specifically about a capital verdict.

I feel that the case now before us fits that situation which we distinguished in Blackwell because when the jury found this defendant guilty of distribution of heroin the penalty was mandatory: only life imprisonment could be imposed by the trial court. The judge had no discretion to impose a lesser penalty in proper circumstances; he simply had to impose the serious, mandatory penalty required by law.

Therefore, I dissent to the majority ruling, because I believe that in this case, where there is no sentencing discretion following a conviction for distribution of heroin, the jury should have been informed of the penalty.

      . Assignment of Error No. 3 was specifically abandoned in brief.

      . At the time of defendant Blackwell’s trial, a capital verdict could result only in a penalty of life imprisonment.