author: DIXON, Justice.

text:
    STATE of Louisiana v. Maurice Lee BENNETT.
    No. 58230.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      Vincent Wilkins, Jr., Director and Appellate Counsel, Office of Public Defender, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.

      . Even on the morning of trial, the proper procedure would have been for the defendant to subpoena the witness pursuant to C.Cr.P. 740 which provides:
      “A defendant who wishes to have a subpoena issued for the attendance of a witness who is not residing in the parish where the trial or hearing is held shall file a written application with a supporting affidavit stating the address and parish wherein the witness resides. The application shall state that the testimony of the witness is relevant, material, and not cumulative. The court shall make a private inquiry into the facts of the case to determine whether the witness is indispensable to the trial or hearing. If satisfied, the court may order the subpoena issued. If the court finds that the subpoena should not issue, it shall state its reasons in writing, which shall become a part of the record. Payment of the expenses of obtaining witnesses under the provisions of this article shall be governed by Article 738 and Article 739.”
      See State v. Larue, supra.

   DIXON, Justice.

Maurice Lee Bennett and Donald Ray Sheppard were indicted on a charge of first degree murder for the rape and death of an Louisiana State University co-ed. Defendant Bennett’s first trial ended in a mistrial. At his second trial Bennett was found guilty as charged by a unanimous jury of twelve and sentenced to death. The defendant assigned thirty-two errors for reversal of his conviction and sentence.

Assignments of Error Nos. 9, 13, 14, 25, 26, 28 and 29 were neither briefed nor argued and are thereby deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

The facts surrounding the commission of this crime are as follows: On September 13, 1974 the victim was living in the High Point Apartments in Baton Rouge with two roommates. That night she went out to eat and drink with some friends and was dropped off at her apartment building at approximately 2:00 o’clock on the morning of September 14. She had apparently forgotten her keys and knocked on the apartment door of Felix Vergara, another occupant of the building. Vergara answered the door and noticed that the victim was dazed (possibly intoxicated) and did not communicate well. There was an exchange of conversation, and, as she began walking away, she fell down. At this moment a man came walking past her at a rapid pace. The victim got up, said she was O.K. and Mr. Vergara returned to his apartment. Approximately one minute later Vergara opened his door again, saw the victim knocking on the door of another apartment and also saw the same man who had walked past her previously, approaching her. When the man saw Vergara, he ducked into a nearby laundry room. Vergara returned to his apartment but went outside again and began to look for the victim. He did not find her, but once again saw the same man on the first floor of the apartment building looking upstairs. The person Ver-gara saw these three times was identified as Donald Ray Sheppard, co-defendant. (The two co-defendants were tried separately; Donald Ray Sheppard’s ease is not now before this court).

At approximately 3:45 a.m. the victim presented herself at the apartment of a friend who lived a block away from her apartment. She remained there for fifteen minutes and at 4:00 a.m. she knocked on the door of Peter Meisner, who lived in Apartment 8 of the High Point Apartments. She informed him that she had locked herself out of her apartment. Mr. Meisner opened the door and the two of them stood in the open door talking. After talking for a minute or two, Sheppard and the defendant Bennett barged into the open door. One of the two intruders had a .38 revolver and began to beat Meisner over the head with it. Sheppard and Bennett then tied Meis-ner up. The victim was taken into the back bedroom by one of the two intruders and the other began to move furniture and other items toward the living room window. Some of these items were placed outside through the window. The two intruders eventually switched places and a shot was heard. The intruder who was in the front walked to the back and asked the other if he had killed her. There was no reply. Bennett then took a long kitchen knife and stabbed Meisner three or four times. The intruders then left the apartment through a window. Meisner staggered into the back room and found the victim nude from the waist down with a pillow over her head with a bullet hole through the pillow and her head. Meisner managed to walk to another apartment and the police were called. A vaginal smear was taken of the victim and it was found that she had had sexual relations.

Assignment of Error No. 1

The defendant contends that the trial court erred in denying a motion for a continuance which was based on the ground that the defendant had not been provided with a transcript of his first trial, which had ended in a mistrial. A transcript of those proceedings had never been prepared. (The trial judge held a contradictory hearing on this motion). Defense counsel, who had been appointed approximately forty days prior to the hearing on the motion for a continuance, had never asked for a transcript until he filed the motion for the continuance. In addition, defense counsel had spent several days listening to the tapes of the mistrial. C.Cr.P. 712 provides:

“A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.”

The granting of a motion for a continuance is a matter addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a clear showing of an abuse of discretion. State v. Weathers, 304 So.2d 662 (La.1974); State v. Navarre, 289 So.2d 101 (La.1974); cf. State v. Jarrow, 331 So.2d 1 (La.1976); State v. Brown, 322 So.2d 211 (La.1975). Under the circumstances of this case, including the time that defense counsel had to prepare and the fact that he did in fact listen to the tapes of the mistrial, no abuse of discretion has been demonstrated.

Assignment of Error No. 2

On October 14, 1975, the day trial was to begin, the defendant moved for a continuance based on the absence of a material witness. The trial judge denied the motion on the ground that defense counsel had failed to have a subpoena issued for the witness. C.Cr.P. 709 provides:

“A motion for a continuance based upon the absence of a witness must state:
(1) Pacts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.”

Generally, the “due diligence” requirement of article 709 is not satisfied when defense counsel fails to have the potential witness subpoenaed. State v. Larue, 324 So.2d 384 (La.1975); State v. Elias, 230 La. 498, 89 So.2d 51 (1956) and cases cited therein. In this case, the defendant argues that notwithstanding his failure to subpoena the witness, he had exercised due diligence in an effort to procure his attendance. Defense counsel testified that he had checked five different Baton Rouge addresses on the witness and that only on the night before trial did he discover a current address of the witness in Arnaudville, St. Landry Parish. At this point, however, defense counsel still failed to subpoena the witness. However, for the purpose of argument, even if it could be said that defense counsel did satisfy the due diligence requirement, neither the written motion for the continuance nor defense counsel’s oral statement at the hearing on the motion demonstrate “a probability that the witness will be available” if the trial is continued. C.Cr.P. 709(2); cf. State v. Cain, 307 So.2d 621 (La.1975); State v. Jackson, 258 La. 632, 247 So.2d 558 (1971). There was no abuse of discretion by the trial judge in denying the defendant’s motion for a continuance.

Assignments of Error Nos. 3 and 20

The defendant contends that the trial court erred in denying defendant’s motion for the disclosure of the identity of the policeman who interviewed Mr. Meisner immediately after the incident while Mr. Meis-ner was being transported to the hospital. As the State points out in its brief, the defense motion was not for the policeman’s identity but was a request for the discovery of the statements made by Mr. Meisner to the policeman. However, in arguing the motion, the defense counsel also requested the name of the police officer to whom the alleged statements were made. Defense counsel now argues that the identity of the police officer should have been revealed because it was evidence favorable to the accused and was material to the defendant’s guilt or innocence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This argument is based on the defendant’s assertion that the statements made by Meisner would show that the identification he made of the defendant was weak.

In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the United States Supreme Court noted that a constitutional violation of the prose-cutorial duty to disclose is not demonstrated unless the omission is of sufficient significance to amount to a denial of defendant’s right to a fair trial. “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” 427 U.S. 97, 109, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342, 353. Rather:

“ . . . The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. . . . ” 96 S.Ct. 2392, 2401-02.

In this ease the officer’s identity would be significant only to the extent that he could testify to statements made by Meis-ner which would reflect upon the correctness of his identification of the defendant. The State points out Meisner had already testified three times as to his identification of the defendant (once at the trial of defendant’s alleged accomplice, once at the preliminary hearing and once at the mistrial of defendant) and that the State had nothing else in its files which could add to Meisner’s testimony. Furthermore, Meis-ner testified that his statements given to this police officer were substantially the same as his testimony at trial and his testimony given on the three previous occasions. Mr. Meisner was extensively cross-examined at the trial and defense counsel brought out evidence that Meisner’s identification of defendant was initially weak. Thus, since defense counsel contends that the statements given to the police officer would only show that Meisner’s identification was weak, an aspect already brought out, it cannot fairly be said that the omitted evidence “creates a reasonable doubt that did not otherwise exist.” These assignments are without merit.

Assignment of Error No. 4

The defendant contends that he was twice put in jeopardy for the same offense because the mistrial in his first trial was illegally ordered. The defendant raised this error through a motion to quash. C.Cr.P. 591 provides:

“No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.”

During the State’s closing argument in the first trial, one of the jurors, Mrs. Elizabeth Krake, became visibly upset emotionally, whereupon the trial judge ordered a recess. The judge had the juror examined by Dr. F. A. Silva who then testified that she was unable to continue as a juror. The trial judge then declared a mistrial. (Apparently only twelve jurors had been chosen and there was no alternate available). C.Cr.P. 775 provides:

“A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the júry dismissed, when the state and the defendant jointly move for a mistrial.” (Emphasis added).

The inability of the juror to continue was a permissible ground for a mistrial pursuant to C.Cr.P. 775(5); State v. Roberson, 225 La. 74, 72 So.2d 265 (1954). Therefore, there was no error by the trial judge in denying the defendant’s motion to quash based on this ground. This assignment lacks merit.

Assignment of Error No. 5

The defendant contends that he was denied the equal protection of the law guaranteed by the Fourteenth Amendment of the United States Constitution and Art. 1, § 3, Louisiana Constitution of 1974, in that during voir dire, the State peremptorily challenged every prospective black juror who was not otherwise excused by the trial judge.

The United States Supreme Court, in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), has held that an accused is not denied the equal protection of the law when the State, through the use of its peremptory challenges, prevents blacks from serving on his jury unless he can prove systematic exclusion over a period of time. This court has adopted those views expressed in Swain and has refused to find a denial of equal protection unless this historical pattern of systematic exclusion is demonstrated. E. g., State v. Haynes, 339 So.2d 328 (La.1976); State v. Gray, 285 So.2d 199 (La.1973). The defendant has made no such showing in this case. Therefore, no equal protection violation has been demonstrated. This assignment lacks merit.

Assignment of Error No. 6

During the State’s opening statement the prosecutor, in describing the sequence of events leading up to the crime, said that the defendant and an accomplice forced their way into the apartment and then (pointing at the defendant) the prosecutor said: “One of them had a .38 caliber revolver and commenced to beat Peter Meisner over the head with it . . . ” Defense counsel immediately moved for a mistrial on the ground that the action of the prosecutor, in pointing at the defendant, implied that it was the defendant who did the whipping, and since the State could not in fact prove which intruder had hit Mr. Meisner, the defendant was unfairly prejudiced in the eyes of the jury.

Initially, it must be pointed out that the prosecutor used the language “one of them . ” and did not say that it was this defendant who hit Mr. Meisner. The scope of the State’s opening statement is delineated in C.Cr.P. 766 which provides:

“The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.”

The prosecutor, in mentioning the pistol-whipping, was merely describing the sequence of events that led up to the crime for which the defendant was on trial. From the time that the defendant and his accomplice entered Mr. Meisner’s apartment until the time they fled, they were involved in one continuous transaction. See State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970); State v. Schoonover, 252 La. 311, 211 So.2d 273 (1968). There was nothing improper in the prosecutor describing this incident. This assignment lacks merit.

Assignments of Error Nos. 7 and 8

The defendant contends that the trial court erred in allowing an unknown person to be brought into court to be identified by two of the State’s witnesses. The “unknown” person who was brought into the courtroom for identification was Donald Ray Sheppard, the defendant’s alleged accomplice. Sheppard was brought in so that Felix Vergara, a State witness, could identify him as the man he saw near the scene of the crime. Sheppard was also brought in while Peter Meisner was on the stand. In fact, however, Meisner was unable to identify Sheppard as one of the perpetrators. As defense counsel apparently admits, this lack of identification rather than helping the State’s case, could only have the opposite effect, that is to impeach that witness’ identification testimony. However, defendant asserts that his ability to cross-examine the witness was impaired because the identity of the person brought into the courtroom was not revealed. Notwithstanding this argument, prejudice to the defendant by this attempted identification is not apparent. This procedure for identification by witnesses has recently been approved by a majority of this court in State v. Kaufman, 331 So.2d 16, 22 (La.1976). These assignments lack merit.

Assignment of Error No. 10

In the process of cross-examining a State witness, Anthony Reed, defense counsel attempted to inquire into the details of the witness’ past conviction for burglary. The State objected to any inquiry into the details of this conviction and the trial judge sustained the objection.

Both the State and the defendant agree that it was error for the trial judge to sustain the objection. In State v. Jackson, 307 So.2d 604 (La.1975), this court held that it was proper to inquire into the details of past convictions of a witness (for the purpose of impeaching his credibility) so that the true nature of the offense can be established. See also State v. Elam, 312 So.2d 318 (La.1975). Therefore, Mr. Reed should have been permitted to testify concerning the conduct involved in the prior conviction. However, in the factual context before us, the failure of the trial judge to permit this line of questioning does not constitute reversible error.

Since we are unaware of the precise nature of the prior burglary (a matter of record presumably available to counsel), we are unable to say whether eliciting the details of that crime would have helped to impeach the credibility of the witness. In addition, it was brought out during this witness’ testimony that he had been indicted for perjury regarding his testimony in this case. It is doubtful that the effect of Reed’s prejudicial testimony would have been diminished to any substantial degree by laying before the jury details of the burglary he had previously committed. Therefore, although error was committed, it was not of such magnitude to warrant reversal.

Assignment of Error No. 11

Defense counsel objected to the introduction into evidence of a picture of a watch stolen during the commission of the crime. The picture was properly identified as representing the watch taken from Meis-ner at the scene of the crime. Defendant based his objection on R.S. 15:436, alleging that the watch was in the possession of the State and should be produced as the “best evidence.” This was defendant’s sole objection to this evidence. Even assuming that the best evidence rule should and does apply to real evidence, this assignment does not present reversible error. Defendant has simply not shown how the defense was impaired by the introduction of the picture of the watch as opposed to the watch itself. Absent a showing of some prejudice to the defendant, the “best evidence” rule will not be applied unreasonably. See State v. Fallon, 290 So.2d 273, 290 (La.1974).

Assignment of Error No. 12

Sometime after the commission of the crime, Mr. Meisner attended two lineups. In the first line-up he picked out two men neither of whom was the defendant. Apparently part of Mr. Meisner’s error in this line-up was due to his misconception that he was to pick out the two men who most closely resembled the defendant and his alleged accomplice. In this first line-up the defendant was in fact not present. At the second line-up the defendant was identified. State exhibits numbers 6 and 8 represented the results of the first and second line-ups respectively. However, exhibit number 8 was improperly marked “Line-up Number 1.” Defendant’s objection to the introduction of exhibit number 8 forms the basis for this assignment of error. He contends that he was prejudiced because it misled the jury about the true chronology of the line-ups.

The State contends that this improper marking was a “simple mistake.” However, from the testimony it appears that the district attorney knew or should have known that the label was erroneous. Thus, when defense counsel objected the prosecutor should have simply supplied the correct markings. His failure to do this was improper, but the error does not warrant reversal.

Defense counsel at least three times during cross-examination of Mr. Meisner brought out the fact that Mr. Meisner was mistaken in the first line-up and had correctly identified defendant in the second line-up. Thus, it does not appear that the jury was misled. However, even assuming that the jury may have been somewhat confused as to the actual chronology of the line-ups, this did not prejudice the accused. Defense counsel adequately established that at one of the two line-ups the State witness had picked out the wrong men. For this reason, this assignment does not present reversible error.

Assignments of Error Nos. 15, 16, 17, 18 and 19

During voir dire, both the trial judge and the State discussed the law of conspiracy and the State again referred to the law of conspiracy in its opening statement. Defense counsel objected on the ground that the defendant was not being tried for the inchoate offense of conspiracy. These objections form the basis of Assignments Nos. 15, 16 and 17. Defense counsel also objected when the State sought to elicit testimony relative to the fingerprint identification of Donald Ray Sheppard (the defendant’s alleged accomplice) and when the State sought to introduce an exhibit which dealt with Sheppard’s fingerprint identification. These objections form the basis of Assignments Nos. 18 and 19.

R.S. 14:26 defines the offense of conspiracy as follows:

“Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

When the facts of the case establish the existence of a conspiracy, the State is permitted to take advantage of the evidentiary rule found in R.S. 15:455 which provides:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”

Therefore, if the State did in fact establish a prima facie case of conspiracy, the various references to the law of conspiracy and the introduction of acts of the co-conspirator (Sheppard) were proper. State v. Carter, 326 So.2d 848 (La.1975).

In State v. Carter, supra, this court had to decide whether a prima facie case of conspiracy had been established. In reversing defendant Carter’s conviction on the ground that reference to the law of conspiracy and the acts and declarations of the alleged co-conspirator were improper because no prima facie case of conspiracy had been established, this court said the following:

“We hold that when the only showing of a conspiracy is that two people committed a crime, and there is no showing that defendant either committed or conspired to commit the criminal act, no prima fa-cie case of conspiracy has been established. We further hold that the fact, alone, that two or more have committed the crime charged is not sufficient to establish a prima facie case of conspiracy.” (Emphasis added). 326 So.2d 848, 854.

The facts in Carter are far different from the ones presented here. In Carter an armed robbery had been perpetrated at a grocery store by two men. The defendant was not identified as one of those who committed the robbery. He was identified as being in an automobile at about the time of the robbery, several miles from the scene, which was occupied by one person later identified as a robber and by another person subsequently arrested in the car, which had a gun in the glove compartment. The defendant was not even in the alleged “getaway car” at the time of his arrest. Under the circumstances of that case, this court held that a prima facie case of conspiracy had not been established.

In the case before us now there was abundant evidence that the defendant in fact committed the crime. Bennett was identified by Peter Meisner, one of the victims, as one of the two intruders who entered his apartment and committed the crime. Anthony Reed testified that the defendant came to his house on the morning of the crime and told him that he had shot a white girl. In addition, James O’Connor testified that one day after the murder the defendant told him that he (Bennett) and Sheppard had gone to High Point, killed a girl and burglarized the premises.

In addition, there was evidence that the defendant and Donald Ray Sheppard conspired to commit the crime. Felix Vergara testified that on three separate occasions on the night of the crime, within two hours of its commission, he saw Donald Ray Sheppard approaching the victim in the hallway of the apartment building and later looking up the stairs. Then, when Peter Meisner and the victim were talking in the hallway sometime later, two individuals barged into the apartment and committed the crime. A logical inference to be drawn from the observations of Mr. Vergara and Mr. Meisner is that Bennett’s accomplice was a “lookout,” trying to find an appropriate time and place to commit the crime. (This inference is bolstered by the fact that on the second occasion as Sheppard was viewed by Ver-gara in the hall, when Sheppard noticed Vergara’s presence, he ducked into a laundry room). In addition, the testimony of James O’Connor is evidence that there existed an “agreement or combination of two or more persons for the specific purpose of committing ... [a] crime.” R.S. 14:26. The testimony of Mr. O’Connor was as follows:

“Q. All right, and what did this defendant tell you on this occasion?
A. That he and Shep had went down to High Point and killed this chick and burglarized the place and they had to get out of town, they had really messed up.”

This testimony demonstrates that the defendant and his accomplice were working in combination in the perpetration of this crime.

Considering all the evidence it can fairly be said that the State did establish at least a prima facie case of conspiracy, and therefore there was no error in referring to the law of conspiracy or in using evidence of his co-conspirator’s acts against the defendant. R.S. 14:26, 15:455. These assignments lack merit.

Assignments of Error Nos. 21 and 22

Assignment of Error No. 21 relates to the court’s overruling defendant’s motion to quash the indictment on the grounds that it was allegedly illegally procured because the district attorney had a personal interest in the case, and because he and certain members of his staff were to be material witnesses at trial. Assignment of Error No. 22 relates to the overruling of defendant’s motion to have the district attorney recused from the case on the same grounds. The alleged interest in the case which is in conflict with a fair and impartial administration of justice allegedly results from the district attorney offering a reward for information in the case and the fact that when the defendant was arrested he was taken directly to the district attorney to be interviewed. As the State correctly points out, the defendant has not shown by these facts that the district attorney acted in any way other than in a manner consistent with his function as the prosecutorial force in the parish. This part of the assignment lacks merit.

Defendant relies upon State v. Donahue, 315 So.2d 329 (La.1975), in which the court granted a remedial writ and ordered the district attorney recused because he was the sole witness to the content of an oral confession and it was acknowledged that he would be a witness in the case. However, in the case at bar, the district attorney and one of his assistants were called by the defense and testified on rather minor points. Assistant district attorney Graphia merely testified that a gun used in the commission of the crime was in his possession. The district attorney testified that he had offered a reward for information in the case and he also read approximately four lines out of a newspaper. These facts do not show that the district attorney should be recused. These assignments lack merit.

Assignments of Error Nos. 23, 24 and 32

Assignment of Error No. 32 relates to the trial judge’s overruling of a motion to recuse the judge and Assignments of Error Nos. 23 and 24 relate to the judge’s overruling of defendant’s motion to “transfer.” The motion to recuse the judge alleged that recusal was necessary because (1) the judge has a personal interest and “said interest is the result of his prejudice; to such an extent that he would be unable to conduct a fair and impartial trial; ” (2) “because he performed a Judicial act in another case where co-defendant was convicted of the same charge in question; ” and (3) “because for other reasons, he would be unable to conduct a fair and impartial trial because he previously shown (sic) prejudice in the same case where a mistrial has been granted.” (The defendant drafted and filed this motion in proper person). The “motion to transfer” alleged as grounds therefor (1) the judge’s issuing of search warrants as to defendant; (2) the judge’s denial of the co-defendant’s application for a writ of habeas corpus; (3) the judge’s sitting in the co-defendant’s trial; and (4) the fact that the trial judge presided over defendant’s first trial which resulted in a mistrial. Although the Code of Criminal Procedure does not provide for a procedural vehicle such as a “motion to transfer,” we will treat the motion as a motion to recuse the judge.

The defendant argues in brief that these motions were improperly ruled on by the judge to whose recusal the motions were directed. C.Cr.P. 674 provides that “if a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc . . ” (Emphasis added). Therefore, the judge to whom the motion relates must answer the threshold question of whether the motion states valid grounds and need not refer the motion to another judge if the motion presents mere conclusions of the defendant. State v. Collins, 288 So.2d 602 (La.1974).

The first and third grounds in the motion to recuse are mere conclusions and are not substantiated by any facts. As such the judge did not err in denying the motion on these grounds. State v. Maduell, 326 So.2d 820 (La.1976); State v. Laborde, 214 La. 644, 38 So.2d 371 (1948). The remaining contentions are based on C.Cr.P. 671(5) which provides: “Has performed a judicial act in the case in another court.” (Emphasis added). Insofar as the allegations are based on the judge’s participation in the co-defendant’s trial, this does not constitute a valid ground because this was another case and in any event the actions were not made in another court. Insofar as the allegations are based on the judge’s participation in defendant’s mistrial or pretrial of the instant case, all of these were done in the same court. Thus, these grounds do not show that the judge performed any judicial acts in the same case in an inferior or superior court and the motions were properly denied.

These assignments lack merit.

Assignments of Error Nos. SO and SI

In these assignments the defendant contends that the trial judge erred in refusing to grant his motion for a change of venue. A hearing on the motion for a change of venue was held in accordance with State v. Bell, 315 So.2d 307 (La.1975). At that time the defendant was permitted to introduce evidence concerning publicity given the case, prejudice in the public mind, and other evidence tending to show why an impartial trial could not be obtained in East Baton Rouge Parish. At the conclusion of the three day hearing on this motion the trial judge denied the motion for a change of venue. C.Cr.P. 622 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.”

As this court pointed out in State v. Bell, supra, although jurors might be selected who individually would not be subject to challenge for cause, other factors might still necessitate a change of venue:

. . The defendants were entitled to a change of venue if they could show, even though it would be possible to select a jury whose members were not subject to a challenge for cause, that there were influences in the community which would affect the answers of jurors on the voir dire, or the testimony of witnesses at the trial, or that, for any other reason, a fair and impartial trial could not be obtained in the parish. . . 315 So.2d 307, 313.

See also C.Cr.P. 622, Official Revision Comment (b).

Essentially, the trial judge must determine whether or not a fair and impartial trial can be obtained in the parish. If such a trial is unavailable, for whatever reason, a change of venue should be granted. In analyzing the change of venue question, the following factors should be considered:

“. . . (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 or 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.” 315 So.2d 307, 311.

Considering these factors individually, the following evidence was adduced:

Nature and Degree of Pretrial Publicity

The defense offered the testimony of several newspaper reporters, nineteen newspaper stories on the crime, and the transcripts of several television accounts of the crime. While there was extensive coverage of this incident, there was no showing that the media reports were other than “objective coverage.” State v. Stewart, 325 So.2d 819 (La.1976). In addition, one newspaper reporter testified that this murder generated no more publicity than any other. See State v. Foy, 278 So.2d 38 (La.1973).

Connection of Government Officials With Release of Publicity

The district attorney did hold a news conference after the arrests were made in this case. However, it appears that such announcements are often made after arrests in criminal cases. In addition, there was no showing that any of the information released by the district attorney was other than factual.

Length of Interval Between Publicity and Trial

Most of the publicity occurred immediately after the crime had been committed (September, 1974) and the hearing on the first motion for a change of venue was held almost eight months later. While it would be impossible to specifically delineate how much time must pass to assure sufficient protection from publicity (see State v. Butler, 322 So.2d 189 (La.1975); State v. Poland, 255 La. 746, 232 So.2d 499 (1970)), there was no showing that the delay here was insufficient. A motion for speedy trial was filed by defendant on May 11, 1975. On May 23, 1975, a mistrial was ordered. Another motion for change of venue was filed September 9, 1975, tried and denied October 7, 1975. This trial commenced October 14, 1975.

Other Events Occurring in the Community Which Affect or Reflect the Attitude of the Community or Individual Jurors Toward the Defendant

An ordinance was passed by the City Council shortly after the murder which authorized the building of a ten foot fence around the High Point Apartments. However, Councilman Watts testified that the ordinance was not passed as a result of this murder, but rather the major impetus for its passage was vandalism of the apartment property.

A Rape Crisis Intervention Center was initiated in Baton Rouge, but the center was not operational at the time of the trial. In addition, the defendant cites the distribution of a certain bumper sticker which had the first name of the victim followed by the phrase, “Pick a Flower for Me.” The sticker included no reference to the defendant and testimony revealed that the stickers were circulated only on the L.S.U. campus and that the distributors experienced difficulty in disposing of them.

In a motion for a change of venue the defendant has the burden of showing that he cannot obtain a fair trial in the jurisdiction in which he is being prosecuted. State v. Stewart, supra; State v. Dillard, 320 So.2d 116 (La.1975); State v. Bell, supra. The granting or denial of the motion is within the sound discretion of the trial judge and will not be disturbed unless it is demonstrated that the evidence adduced affirmatively shows that the ruling was erroneous and an abuse of discretion. State v. Stewart, supra; State v. Dillard, supra; State v. Richmond, 284 So.2d 317 (La.1973). The defendant has failed to carry his burden in this case. There was no abuse of discretion by the trial judge in denying the motion for a change of venue.

Assignment of Error No. 27

In this final assignment the defendant contends that the trial court erred in failing to sustain his motion to quash the indictment on the ground that the death penalty for the crime of first degree murder constituted cruel and unusual punishment. The death penalty imposed on the defendant in this case may not be carried out due to the decision of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). However, since there is no other reversible error, the conviction of the defendant is affirmed. State v. Smith, 339 So.2d 829 (La.1976); State v. Jenkins, 340 So.2d 157 (La.1976). Pursuant to these cases the procedure to use in sentencing is to impose the most severe penalty established by the legislature for criminal homicide at the time of the offense.

Accordingly, the defendant’s conviction is affirmed, but the death sentence imposed is annulled and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence the defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. See R.S. 14:30.1, as added by Acts 1973, No. Ill, § 1.

      . However, note the concurring opinion of Justice Dennis in State v. Haynes, supra. In discussing the frequency of this identical claim in cases tried in East Baton Rouge Parish, Justice Dennis said the following:
      “Because these cases represent only a small number of those tried in East Baton Rouge Parish, I cannot say that this record alone indicates an historical system of discriminatory exclusion. However, these cases may trace the outlines of a pattern of exclusion, and if it can be demonstrated in a future case that the practice complained of has not been restricted to isolated instances, then the State should be required to establish that the exclusion of blacks is rooted in some other cause than racial discrimination. For, to exercise peremptory challenges solely on the basis of race without regard to legitimate trial-related objectives is to pervert the purpose of and abuse the broad discretion inherent in that procedure. See, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).” 339 So.2d 328, 335.


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Mathew JOSEPH and Bruce Fluker.
    No. 58211.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      Lawrence Blake Jones, New Orleans, Loyola Law School Clinic, John M. Stan-dridge, Student Practitioners, William J. O’Hara, III, Supervising Atty., 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.
   SUMMERS, Justice.

Mathew Joseph, Bruce Fluker and Samuel Kelly were indicted by the grand jury of Orleans Parish for distribution of heroin. La.Rev.Stat. 40:966. Joseph and Fluker were jointly tried, but Kelly was severed, having waived his right to trial by jury. After trial by jury, Joseph was found guilty as charged and sentenced to life imprisonment. Fluker was found guilty of attempted possession with intent to distribute and was sentenced to imprisonment for twenty years. They prosecute a joint appeal to this Court.

Shortly after noon on June 17, 1975 Officers Reiher, Taplin, Titus and Ben of the New Orleans Police Department were engaged in an undercover narcotics operation at the corner of Jackson Avenue and South Prieur Street in the city of New Orleans. They were joined by special agent Driscoll of the Federal Narcotics Bureau. The operation was part of a larger joint effort of State and Federal authorities code-named “Topcat”, aimed at gathering information relating to narcotic offenders and subverting illicit drug traffic. In accordance with prearranged plans whereby undercover Officer Taplin was to make a narcotic purchase about 12:30 that afternoon, a site for surveillance from a van with a camera was chosen approximately 150 feet from the corner of Jackson Avenue and South Prieur Street. Another observation point was selected a like distance from the locale of the planned rendezvous.

At approximately 12:26 p. m. Officer Rei-her observed Joseph, Fluker and Kelly nearby in front of a church on Jackson Avenue. Kelly left the group and walked toward the Club DeVille across South Pri-eur Street. He had what appeared to be a cigar box under his arm. Joseph and Fluker followed. At this time undercover Officer Taplin arrived in his car and drove into the parking lot on the side of the Club DeVille. As Taplin came to a stop, Kelly approached the car, followed by Joseph and Fluker. An exchange of heroin was made between Kelly and Taplin at 12:46 p. m. Three months later, on September 19, 1975, Joseph and Fluker were arrested and charged with distribution of heroin.

I

Joseph and Fluker contend that the trial judge made improper, prejudicial comments concerning a state witness in the presence of the jury. Officer Ben had testified for the State and was being cross-examined by defense counsel in an effort to determine where Ben was when he photographed the narcotic transaction on June 17, 1975. Ben had been asked to designate his position on a sketch of the area drawn by Officer Reiher. Ben requested, instead, that he be permitted to make his own sketch for the purpose, to which defense counsel agreed, commenting in response to the trial judge’s query, “[D]o you think that would help?”:

“Well, sir, he could tell you this but I’m a little confused about where he was, and I see him shooting pictures through a fence in one location, and if he’s parked I don’t see how he shoots through a fence one time and doesn’t another time. That’s — I’m just trying to ask him where he was.”;

whereupon, the Judge remarked, “If you want to take on this man as a witness under cross-examination you get Mohammed Ali and Foreman together and they got a better shot.” Defense counsel objected to the judge’s “comment on the quality of this witness.” The trial judge then admonished the jury:

“Members of the jury, disregard my observations about this officer, and you make your own observations about him. And, later on, when I charge the jury I will tell you what the law is and how to test or evaluate the veracity of a witness and the quality of a witness, so you make that decision when that time comes. But, disabuse your mind from anything that I said about this witness.”

Ostensibly satisfied with this admonition, defense counsel proceeded with the cross-examination of Officer Ben. After a somewhat lengthy cross-examination the State, without objection by the defense, offered into evidence the narcotics involved and the photographs of the crime. When a recess was called, however, defense counsel moved, out of the presence of the jury, for a mistrial based upon the judge’s remarks. He then asserted that the previous admonition of the judge was not sufficient.

Initially the State contends that the motion for mistrial came too late because Article 841 of the Code of Criminal Procedure requires “that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take.” Since no defense motion for a mistrial was made contemporaneously with the judge’s remarks, only an objection to the judge’s comment on the quality of the witness, and because the judge promptly admonished the jury to disregard his remarks, the State’s contention on this issue appears to be meritorious.

However, we prefer to base this decision upon the merits of the motion for a mistrial. The remarks of the judge do not fall within that class of prohibited remarks or comments which mandate a mistrial as contemplated by Article 770 of the Code of Criminal Procedure. And, since defense counsel did not request that only an admonition be given, the judge’s remark is, instead, the kind which is contemplated by Article 771. In view of the fact that the judge did admonish the jury to disregard his irrelevant remark as directed by Article 771, the issue is whether his refusal to grant a mistrial is an abuse of discretion.

Considering the permissive authority this article confers, and because of the ambiguous character of the remarks and the prompt admonition, the effect upon the jury, if any, was most probably confusion, not prejudice. No abuse of discretion is shown warranting the drastic remedy of mistrial. La.Code Crim.Pro. art. 775; State v. Nicholas, 312 So.2d 856 (La.1975).

This assignment has no merit.

II

Several trial rulings on admissibility of evidence are said to be erroneous, and each is relied upon as a basis for reversing the convictions.

a

On direct examination by the State, Officer Reiher was asked to relate his particular responsibility at the time of the offense in June 1975. In response he explained in general terms the operation called “Top-cat”. He explained that the objective of the operation was to gather information concerning illicit drug traffic in New Orleans. Finally, he said, the narcotic operation was funded by a Federal grant.

It is the defense contention that this account of the operation was not “relevant to the material issue” as required by Section 435 of Title 15 of the Revised Statutes.

Further, the defense contends that leading questions were employed by the State in this part of the examination:

“Q. What type of surveillance would this be?
A. This would be ... I don’t know what you would call it.
Q. Whether—whether it was stationary or mobile?
A. This would be stationary.”

To this, defense counsel objected that the questioning was irrelevant, and leading contrary to Section 277 of Title 15 of the Revised Statutes. The Section provides:

“A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one’s own witness, unless such witness be unwilling or hostile.”

Insofar as the relevancy issue is concerned, because the surveillance of the defendants was part of operation “Topcat”, the testimony was relevant to explain the facts surrounding the commission of the offense. Further, because defense counsel had made repeated reference to operation “Topcat” during voir dire examination of the prospective jurors, the State was entitled to explain and develop an area of inquiry which the defense had introduced. La.Rev.Stat. 15:441.

The Court is of the opinion that the alleged leading questions could more plausibly be regarded as the interrogator’s effort to elicit an explanation from the witness of the type of surveillance involved in this offense. The question propounded submitted a choice to the witness and did not improperly suggest the answer. While conceding that response to the alleged leading questions caused only minimal harm, the defense asserts that this error, combined with others, demonstrates that the trial was replete with prejudicial errors. Considered alone, or in combination with the rulings complained of hereafter, there is no merit to the contention that the ruling on the leading questions was prejudicial error.

In overruling the objection, the trial judge did not abuse the discretion the law vests in his office. State v. Sneed, 328 So.2d 126, 134 (La.1976); State v. Washington, 294 So.2d 794 (La.1974); State v. Fallon, 290 So.2d 273, 291 (La.1974).

b

Officer Reiher testified that he had conducted a field test for heroin and that the test “gave a reaction to the presence of heroin.” The defense contends that it was error to permit this opinion testimony because Officer Reiher had not been qualified as an expert.

The field test involved a simple chemical color examination which Officer Reiher had performed before on numerous occasions. He testified that such a test, though not conclusive, did indicate heroin in this instance. The State simply introduced this evidence to show why the police maintained special custody of the substance purchased by Officer Taplin from the accused, and as a part of the predicate establishing the chain of custody.

In order to prove that the powder in question was in fact heroin, the State relied on the testimony of Walter Strata, Jr., a criminalist employed by the New Orleans Police Department Crime Laboratory, to whose expert qualifications in the classification and identification of heroin defense counsel stipulated.

Considering Officer Reiher’s extensive experience in the area, and the limited purpose for which his testimony was used, there was no error in permitting him to express his opinion on the field test. “On questions involving a knowledge obtained only by means of special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.” La.Rev.Stat. 15:464. See also La.Rev.Stat. 15:466. In addition, the subsequent testimony of a witness — conceded by the defense to be an expert — classified the substance as heroin, thus rendering Officer Reiher’s testimony harmless. La.Code Crim.Pro. art. 921.

c

Samuel Kelly was one of the participants in the June 1975 narcotic transaction upon which this prosecution is based. He was not tried with these defendants, but was severed because he waived a jury trial and elected to be tried by the judge.

Kelly was called as a defense witness, although the jury had already learned of his role in the narcotics transaction through the testimony of several state witnesses, officers who participated in the surveillance. After being sworn, when questioned by defense counsel, Kelly refused to answer on the grounds that the answers might incriminate him. He was asked who his attorney was, whether his refusal to answer was upon advice of counsel or a personal decision and whether he could identify Officer Taplin as the person to whom he sold heroin on June 17, 1975. Except for identifying his attorney, he refused to answer any of these questions.

On cross-examination, Kelly was asked by the State’s attorney if he had been charged with Fluker and Joseph and brought into court with them in connection with proceedings involving charges for distribution of heroin. He refused to answer these questions, again claiming the privilege against self-incrimination. The same was true of a final question on cross-examination in which the State’s attorney asked whether he had waived trial by jury.

In argument the defense claims that the cross-examination was improper and was in reality an effort on the part of the State to impart to the jury the fact that Kelly had been arrested with Fluker and Joseph and charged with the same offense. This contention has no merit, as the facts outlined above indicate. This was not an action initiated by the State to have the witness claim the privilege against self-incrimination as defendants contend, relying upon the proposition expressed in State v. Berry, 324 So.2d 822 (La.1975), to the effect that it is improper to knowingly call a witness who will claim a privilege for the sole purpose of impressing the jury with the fact that the witness claims the privilege. In the instant case the defense called Kelly and, being aware that he had been charged, should have foreseen that he would claim the privilege. Cross-examination by the State was within proper bounds and tended to explain why Kelly was not being prosecuted with these defendants.

d

Sergeant Paul Titus testified for the State, outlining the procedure followed in developing and preserving the film used to photograph the narcotics transaction in his case. On cross-examination he testified that the transaction at the corner of Jackson and Prieur Streets involved two or three minutes of the fifty minutes length of exposed film on the two rolls he had in court at the time. He was then asked if other shots had been taken with these two rolls of film and if those pictures were exhibited to the jury. When he answered that they were not, he was asked to explain to the jury why they were not. He answered, “It involved other defendant [sic], possibly this same defendant, in a different case. It was not involving this date, the 17th of June or. any, transactions or anything which occurred that date.”

Defense counsel moved for a mistrial, arguing that this statement was a reference to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible, as set forth in Article 770 of the Code of Criminal Procedure. See footnote 1, supra. This article is not applicable because the statement was not made by the judge, district attorney or a court official. Nor was the defense entitled to have the judge admonish the jury that this statement could not be considered by them because no request to admonish the jury was made as Article 771 requires.

Moreover, the witness Titus was responding to defense counsel’s probing questions, attempting thereby to explain his answer as requested by defense counsel. In these circumstances, the State cannot be held responsible for statements which may be harmful to the defense when they are made in response to questions propounded by defense counsel.

e

In closing argument defense counsel, after explaining the difference between direct and circumstantial evidence, sought to further illustrate the difference by a hypothesis. At this point the State’s attorney objected that neither the proposed illustration nor the definition of circumstantial evidence properly falls within the scope of closing argument.

Generally a wide latitude is allowed counsel in closing argument, and any undue restriction which limits argument to the prejudice of the defense is error. Where the prejudice is substantial reversal is warranted. Cf. State v. George, 312 So.2d 860 (La.1975).

Since defense counsel did have the opportunity to define and explain the difference between direct and circumstantial evidence, denying him the right to illustrate the meaning of circumstantial evidence by a hypothesis did not constitute such a restriction which unduly prejudiced the defense. This conclusion takes into consideration the fact that the defense has not set forth the bearing which circumstantial evidence would have upon the facts of this case. This disparity is emphasized by a review of the State’s evidence which, on all salient points, is direct and often positive.

■ Argument must be confined to evidence admitted, to the lack of evidence, to conclusions of fact to be drawn therefrom, and to the law applicable to the case. La. Code Crim.Pro. art. 774.

f

Officer Taplin was questioned by the State about the conversation he had with Kelly at ten o’clock on the morning of June 17, 1975. In this conversation at the Club DeVille on the corner of Jackson Avenue and South Prieur Street the parties agreed to the price and quantity of the heroin buy which was to take place between twelve and one o’clock that afternoon.

Objection was made by the defense that what Kelly told Taplin was hearsay, and the objection was overruled upon the State’s assertion that Kelly’s statements were an exception to the hearsay rule for they were part of the res gestae.

Because these preliminary negotiations between Taplin, Kelly and defendants were integral parts of the entire transaction culminating in the actual sale and delivery of the heroin approximately two hours later, Kelly’s utterances at that time fall within the res gestae rule as “necessary incidents of the criminal act.” La.Rev.Stat. 15:448. It is fundamental that what occurs at the time and place of the commission of the crime is admissible in evidence as res ges-tae. State v. Henry, 309 So.2d 132 (La.1975); State v. Batiste, 318 So.2d 27 (La.1975); State v. Williams, 263 La. 755, 269 So.2d 232 (1972).

For the reasons assigned, the convictions and sentences are affirmed.

      . La.Code Crim.Pro. art. 770:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

      . La.Code Crim.Pro. art. 771:
      “In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”


text:
    STATE of Louisiana v. Bobbie L. McSPADDIN and Milton J. Gautreaux, Sr.
    No. 58282.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      Charles R. Chesnutt, III, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Bobbie L. MeSpaddin and Milton J. Gau-treaux, Sr., were charged with armed robbery, La.Rev.Stat. 14:64, convicted and each was sentenced to hard labor for twelve years. They appeal relying on seven assignments of error.

At approximately 1:15 p. m. on October 11,1975, Sergio Hernandez was in his store, the Hennessey Food Store, on the corner of South Hennessey and Ulloa Streets in the city of New Orleans. A man came in, walked around the store, and then confronted Hernandez with a gun partially hidden in a paper bag, demanding, “Give me the money.” Hernandez complied by handing the man $350 from the cash register. As the robber left, Hernandez saw him enter the passenger side of a waiting automobile and observed the car speed off.

On the basis of a description of the car furnished by Hernandez to the police, and the tip of a confidential informer, defendants were arrested two days later. At a photographic and physical lineup Hernandez identified MeSpaddin as the man who robbed him.

Assignment 1

Prior to trial defendants moved the court to “sever the indictments herein and order two separate trials, rather than one trial for both defendants.” Although the trial judge ordered the district attorney to show cause on January 29, 1976 why defendants should not be given separate trials, apparently defendants did not press for a hearing, for none was held on the motion. Aside from the fact that there are no factual allegations in the motion, no evidence was presented in support of the motion. However, prior to commencement of trial on February 5,1976, the trial judge denied the motion to sever, finding that defendant would not be prejudiced by a joint trial. Whereupon defense counsel informed the court that the State had confessions for each defendant, each confession implicating the other defendant. In response the trial judge stated, “I don’t know about the confessions, but if they’re what you say they are and the State uses them, I will have to declare a mistrial.”

Later, during the trial, the State did introduce the confessions, and defendants moved for a mistrial which was denied.

The McSpaddin confession included the following statement:

“Me and Milton Gautreaux were riding around and we were broke and we didn’t have any money and we was talking and we just got it in our mind to pull an armed robbery. We went back to Milton’s house at 3321 Lafite Street and we got Milton gun and snuck it out the house so the old lady couldn’t see it. . I got out the car and walked in the store and pulled the gun and told the man give me your money ... I put the money in my pocket and left the store, and got into the car with Milton and we went back to Milton house.”

The confession of Milton Gautreaux included the following: “Me and Bobby McSpaddin were driving a white 1971 Plymouth . . . Bobby said let’s pull a robbery . . . Bobby said let’s go home and get the gun ... I parked on the side of the store while Bobby McSpaddin went in with the gun.”

It is the defense contention that the trial judge erred in failing to grant separate trials to defendants because the admission of their confessions, each implicating the other, denied each defendant the right of confrontation. The defense brief sets forth that there is “no substantial conflict in the fact situation as outlined in each confession;” and the record shows that neither defendant chose to take the stand.

As authority for the defense position, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) is cited. That case stands for the proposition that where, in a joint trial, a codefendant’s confession implicating a defendant is introduced and the codefendant does not take the stand and subject himself to cross-examination, defendant’s right of cross-examination secured by the confrontation clause of the sixth amendment is violated. Instructions to the jury that the confession is only evidence against its author do not suffice to cure the error.

Initially it should be noted that the factual and legal basis for a motion to sever should be established prior to trial. Matters which arise at the trial which were unknown to the judge at the time of his ruling on the motion to sever cannot be relied upon as a ground for error.

At the time of his ruling on the motion to sever, the trial judge had no evidence before him to establish that the two confessions amounted to antagonistic defenses as the defense now contends. Under these circumstances, the judge did not commit error in overruling the motion for a severance. State v. Birbiglia, 149 La. 4, 30, 88 So. 533, 543 (1921). However, in view of the fact that the trial judge informed defense counsel that he would grant a mistrial if the confessions were introduced at trial and proved to present antagonist defenses, this decision will not be based solely on the lack of evidence to support the severance motion.

In the Court’s view the facts of this case are distinguishable from the facts in the Bruton case, upon which the defense relies. In the confessions at bar each defendant recounted the essential and material facts of the criminal offense in substantially identical manner. Each confession implicated the confessor and his codefendant. In Bruton the codefendant who confessed implicated defendant and, by not taking the stand, gave him no opportunity to cross-examine.

Because of these factual distinctions, this case more properly falls within the rule that the admission of the confession of a codefendant does not vitiate a defendant’s conviction where the defendant’s own confession was also introduced into evidence and it “interlocked” or was “substantially identical” with the confession of his code-fendant. See United States ex rel. Oritz v. Fritz, 476 F.2d 37 (2d Cir. 1973), cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973); State v. Stubbs, 239 So.2d 241 (Fla.1970); State v. Hopper, 253 La. 439, 218 So.2d 551 (1969), cert. denied, 396 U.S. 1012, 90 S.Ct. 545, 24 L.Ed.2d 504 (1970).

In State v. Hopper, id., this Court held:

“Here, however, in the context of the circumstances presented, we have the co-defendants’ admissions standing side by side with each confessor acknowledging in his own confession the same criminal conduct ascribed to him by the other. The hearsay statements are corroborated by each codefendant’s extrajudicial statement or vice versa. Under such a situation, it is wholly unnecessary to speculate whether the cautionary instructions of the judge may not have effectively prevented the jury from disassociating each confessor’s inculpation of his codefendant in determining the latter’s guilt. For, as we see it, the hearsay caused no injury and did not deprive either defendant of a substantial constitutional right because, if each defendant had taken the stand, it is difficult to perceive what benefit either could have gained by cross-examining the other anent the same criminal conduct to which each had already voluntarily confessed extrajudicially.”

In light of the denials of certiorari in State v. Hopper and United States ex rel. Ortiz v. Fritz, supra, the confessions here, because they are interlocking or substantially identical, so minimize the risk of “prejudicial spillover” incrimination that the lack of ability to cross-examine is reduced to an insignificant level. Thus a joint trial is permissible and results in no harm. La.Code Crim.Pro. art. 921.

This assignment is without merit.

Assignment 2

A lineup with six color photographs of Caucasians was held shortly after the arrests of defendants on October 13, 1975. Two blonds and four individuals with dark hair were represented in these photographs. The photographs included one of each defendant. McSpaddin was a blond and Gau-treaux had dark hair. When these photographs were presented to the victim he readily identified McSpaddin.

At a motion to suppress this identification, the victim testified that the police did not suggest whom he should select nor was he encouraged in any way to choose any particular photograph. Defendants argue that because McSpaddin was a blond and Hernandez could only choose a blond as the robber (Gautreaux having waited outside in the getaway car) McSpaddin was the only one the victim could possibly select. Hence the lineup was impermissibly suggestive. We are asked to view the photographs to determine whether a substantial possibility of misidentification occurred.

A study of the photographs discloses no striking characteristic of McSpaddin which would unduly suggest to the victim that he was the robber. Natural differences were of course apparent, but there were type similarities which support the State’s position that there was no intention to create undue suggestion.

Later at a live lineup on October 21, 1975 in which McSpaddin and Gautreaux were included, the victim again identified McSpaddin as the man who held him up and robbed him. At the time of the lineup defense counsel was present. Again the defense argues that McSpaddin, who was the only one of the two defendants the victim could identify, was one of only two blonds out of seven individuals in the lineup. These two blonds were dissimilar in that McSpaddin was short and fat, while the other was tall and slim. These physical characteristics, it is argued, were Unduly suggestive. A photograph of the lineup does not support the contention. Although the subjects are not identical, there is a general similarity which does not unduly emphasize their differences.

Defense counsel also complains that he was not permitted to enter the viewing room where the victim was at the time he identified McSpaddin. Although the record is not clear on this contention, it suffices to say that defendants were not entitled to the presence of counsel at this pre-indictment lineup. State v. Rudolph, 332 So.2d 806 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Nero, 319 So.2d 303 (La.1975).

Except where a confession is involved, on the trial of a motion to suppress the burden of proof is on the defendant to prove the grounds for his motion. La.Code Crim.Pro. art. 703(C). Defendant has not discharged this burden and this assignment is without merit.

Assignment 3

Against a contention that defendants were under duress and were subject to police brutality, it is contended that, by refusing to suppress the defendant’s confession, the trial court erred in finding that these confessions were free and voluntary. La.Rev.Stat. 15:451-52. The burden of proof is upon the State to prove that the confessions were free and voluntary. La. Code Crim.Pro. art. 703(C). Although the State’s evidence contradicts the defense evidence, the trial judge accepted the testimony of five police officers who participated in the arrest of the defendants.

The arrest was made at 2:15 p. m. Defendants were transferred to police headquarters almost immediately thereafter. At headquarters, the standard warning printed on the rights of arrestee form was read to the defendants for the second time, they having been advised of their rights immediately after the arrest. Both defendants signed the form, indicating that they understood their rights and that the signing occurred at 3:00 p. m. and 3:05 p. m.

Officers who subsequently recorded and transcribed the statements made by defendants testified that they did not beat defendants and no beatings were inflicted upon them in their presence, or otherwise, to the best of their knowledge. Two days after his arrest McSpaddin was examined by a physician in the parish prison. The doctor found no evidence of physical abuse, although he did find pre-existing ailments which may have accounted for the discomfort defendant complained of.

On the other hand, several witnesses testified for the defense. They were for the most part relatives or close friends. Their testimony dealt chiefly with matters which occurred at the time of the arrest and almost a month thereafter, matters entirely unrelated in time to the taking of the confessions.

As always in factual determinations of this nature where the evidence is contradictory, the credibility question falls especially within the discretion of the trial judge. His factual determinations are entitled to great weight and will not be disturbed on review unless clearly contrary to the evidence. State v. White, 329 So.2d 738 (La.1976); State v. Alexander, 328 So.2d 144 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. White, 321 So.2d 491 (La.1975).

This assignment is without merit.

Assignment 4

While this assignment of error appears as number 6 in the record, it is designated as number 4 in defense brief. Other like renumbering occurs in the defense brief. Accordingly, designations used in defense brief are adopted in this opinion.

At the hearing on the motion to suppress the confessions, the defense attempted to qualify Dr. Richard Strobock as an expert in the field of psychiatry. The purpose of his testimony was to bring out defendant McSpaddin’s mental condition one month after ‘the arrest. By this testimony the' defense expected to demonstrate the effect on McSpaddin of long term and repeated harassment by the police.

By questioning Dr. Strobock, it was ascertained that he had been admitted to the practice of medicine in Louisiana but had not completed his residency requirement in psychiatry. He was then in training at Charity Hospital.

He needed another year of residency to become board qualified, after which he would become eligible to take the examination prescribed by the American Board of Psychiatrists and Neurologists. When this examination was successfully completed, he would become fully eligible as a psychiatrist.

For these reasons, the trial judge explained in his per curiam, the doctor was not allowed to testify as an expert in the field of psychiatry, but he was allowed to testify as an expert in the field of general medicine. Thereafter the doctor did testify as an expert in this field, and he did state that McSpaddin had an intense suicidal desire because of fear of police brutality.

Aside from the tenuous relevancy of this testimony to the voluntary nature of the confession obtained almost a month before, the doctor testified that McSpaddin had an intense suicidal tendency which he attributed to police mistreatment. It was the effect of the alleged mistreatment which defendants sought to establish by the doctor’s expert testimony. La.Rev.Stat. 15:467.

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.” La.Rev. Stat. 15:466.

While Dr. Strobock’s qualifications as a resident and instructor in psychiatry at Tulane University Medical School are impressive, because of the circumstances outlined above no error is presented which would warrant reversal. La.Code Crim.Pro. art. 921. Cf. La.Rev.Stat. 37:1284; State v. Williams, 309 So.2d 303 (La.1975).

Assignment 5

The defense called Anita Spell as a witness to testify to the circumstances surrounding the arrests of defendants. She testified that Gautreaux was her boy friend and stayed at her apartment. On Cross-examination the prosecutor asked her these questions:

“Q. Did you spend the night with Mr. Gautreaux?
A. He stayed there.
Q. Do you know Mr. Gautreaux’s married to someone else?
A. Yes, I knew.
Q. Was Mrs. Gautreaux there at the apartment that night?”

At this time defense counsel objected, stating that the line of questioning was irrelevant. The trial judge sustained the objection, and denied the prosecutor the right to argue the point. Then, at the request of defense counsel, the trial judge instructed the jury to disregard argument of counsel, as only evidence from the witness was competent.

The defense argues that the trial judge erred in failing to prevent unduly prejudicial testimony from this witness.

When the purpose is to show that in the special case on trial the witness is biased, as the State contends in brief, it is competent to question her as to any particular fact showing or tending to show bias. La.Rev.Stat. 15:492.

In this instance, the testimony elicited from the witness did no more than indicate that an intimate relationship existed between the witness Spell and the defendant Gautreaux. By establishing this fact, the State was attempting to show bias on the part of the witness in that she had a particular interest in giving, and a tendency to give, testimony favorable to the defendant. The testimony was therefore admissible under Section 492.

This assignment has no merit.

Assignment 6

In brief for the first time the defense assigns as error the fact that the trial judge erred in failing to permit the defense to impeach its own witness. This assignment is not contained in the record with the other assignments of error. Accordingly, the trial judge has not had an opportunity to prepare a per curiam, and the prosecutor has not answered the assignment in its brief.

Article 844 of the Code of Criminal procedure requires that “[t]he party appealing shall designate, in writing, those errors which are to be urged on appeal,” and to file them within the time specified by the trial judge. This enables the judge to submit a per curiam if he desires to do so, and the prosecution and this Court are thereby informed of the issues on appeal.

In the case at bar, because of this belated assignment of error, no opinion will be written on this assignment. A study of the argument and the record shows it is without merit.

Assignment 7

Defendants filed a motion for a new trial in which it is alleged that a new witness was available to testify to the involuntary character of the confessions obtained from defendants; the witness was not available at the time of the hearing on the motion to suppress the confession despite due diligence on the part of the defense; and this witness’ favorable testimony was and would likely lead to a different conclusion on the motion to suppress.

Defense counsel pointed out at the hearing on this motion that the newly discovered witness did not testify at the motion to suppress the confessions. His testimony was favorable to the defendants showing police mistreatment in obtaining the confession. The trial judge denied the new trial, saying that he heard the testimony of the witness at the trial, and if the samé testimony had been presented in connection with the motion to suppress it would not have changed the result.

Although defense counsel objected to this ruling, he did not assign the ruling as error. For this reason, although the trial judge filed a per curiam to all errors which were properly assigned, he was unable to file a per curiam to this defense contention urged as error for the first time in brief on this appeal. La.Code Crim.Pro. art. 844. For errors to be included in the assignment of errors reviewable on appeal, the requisite procedures must have been followed. Code Crim.Pro. art. 844; See Comment (b), La. Code Crim.Pro. art. 920.

There is no merit in this contention.

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

DENNIS, J., concurs.

CALOGERO, J., dissents.


text:
    STATE of Louisiana v. Dwight Edgar SIMMS.
    No. 58287.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      Thomas J. Ford, Jr., 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., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

A bill of information charged that defendant Dwight Simms robbed Lawrence Stone of $75 on February 22,1975. La.Rev. Stat. 14:65. Simms was found guilty in a bench trial and sentenced as a habitual offender to serve twenty years at hard labor. La.Rev.Stat. 15:529.1.

The victim of the robbery, Lawrence Stone, testified that about 6:30 p.m. on February 22, 1975 he was accosted by the defendant while he was buying a carnation from the Vogue Flower Shop on Magazine Street in the city of New Orleans. Just prior to the actual robbery he observed defendant walking behind him. Stone’s suspicions were not aroused because, although he did not know defendant, he had encountered him twice before in the same neighborhood. Once the defendant tried to borrow cigarettes, and on another occasion defendant made sexual advances.

As he stood on the walk in front of the flower shop, Stone was approached from behind by defendant who quickly thrust his hands into Stone’s pockets and grabbed $75 and Stone’s identification card. A short struggle ensued and defendant fled, pursued by Stone and a taxi driver. Defendant soon eluded his pursuers in the gathering darkness.

Police officers were summoned and Stone described his assailant as a Negro male, 5'9", of slim build, wearing a black hat, black and brown leather coat and dark pants. He particularly informed them that the culprit’s lower teeth were noticeably malformed and decayed. He was conscious of this characteristic, he later said, because he was meticulous about the condition and care of his own teeth.

The police and Stone then proceeded to the police station. There, with the help of the description furnished by Stone, the police withdrew five photographs from their files, including one of defendant. These were handed to Stone in random order to ascertain whether he could identify defendant. Without suggestion of any kind from the police, Stone identified defendant from his photograph. The next day the police recognized defendant at a street comer in the neighborhood and arrested him.

Defendant testified at the trial. Other than to deny categorically that he had ever seen the victim and to admit prior offenses, defendant gave no testimony relevant to the issues presented.

Two errors in rulings of the trial judge are assigned on this appeal; one deals with the admission of the photographs used in a photographic identification, and the other pertains to an alleged impermissible in-court identification procedure.

In the first assignment of error the defense argues that, based upon the victim’s vague description, the police chose “mugshots” which were unduly suggestive for the photographic lineup at the station. The undue suggestion arose from the fact, it is argued, that defendant’s photograph was the only one depicting a person with malformed and decayed teeth, a physical feature of the robber most outstanding in the mind of the victim. Another and less prejudicial identification procedure should have been employed by the police, the defense submits.

As already noted, no impermissible, suggestive procedures were involved. The police chose the photographs with the help of the previous description supplied by the victim shortly after the robbery. All five photographs depicted persons of similar age and physical characteristics. A review of the photographs convincingly demonstrates that they are nonsuggestive. Defendant’s mouth is closed and exhibits no abnormality. From these the victim made an independent choice, free of assistance or suggestion. Aside from the fact that defendant’s bad teeth impressed him, the victim had ample opportunity to observe defendant at the time of the robbery and on two previous occasions when he was approached by this defendant.

The totality of the circumstances belie the contention that any impermissible suggestion occurred here. State v. Mitchell, 278 So.2d 48 (La.1973); State v. Junius, 257 La. 331, 242 So.2d 533 (1971).

The second defense complaint arose from an incident which occurred during the trial. While the victim Stone was testifying, he was asked if the person he identified from the photographs at the police station was the defendant present in court at the time. He was- asked to point him out and did so. Asked if he was sure, he said he would be if he saw the defendant’s teeth. Whereupon, at the prosecutor’s request, and over defense objection, the court ordered defendant to open his mouth. Stone then positively identified the defendant.

As the defense argument is understood, compelling the defendant to open his mouth and expose his bad teeth amounted to impermissible suggestion, tainting the identification with illegality.

Standing alone, the act of compelling the defendant to open his mouth to display his bad teeth is permissible. Requiring a defendant to be observed is demonstrative evidence, and the practice has been approved by this Court. State v. Collins, 328 So.2d 674 (La.1976); State v. Brown, 326 So.2d 839 (La.1976). Nor does the procedure in the case at bar render the in-court identification unduly suggestive.

Even before the court ordered defendant to open his mouth the victim Stone had readily identified him. Further, he had identified him from photographs at the police station and had ample opportunity in his three encounters with defendant to establish an independent source of identification. There is, therefore, no merit to this contention.

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


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Lionel DELPIT.
    No. 58554.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      Edward Albert Armstrong, Jr., Metairie, 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.
   MARCUS, Justice.

Lionel Delpit was charged by bill of information with the crime of armed robbery in violation of La.R.S. 14:64. A plea of not guilty was entered at arraignment on May 1, 1975. When the matter was called for trial on November 6, 1975, Delpit sought to withdraw the plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity,” relying on documents which were received in evidence. The trial judge denied defendant the right to change his plea, and the matter proceeded to trial by jury. Defendant was found guilty as charged and sentenced to serve fifteen years at hard labor. While defendant designated two errors to be urged on appeal in his assignment of errors filed in the trial court, he specifically abandons one of these errors in his brief to this court and relies on the other assigned error for reversal of his conviction and sentence.

Defendant contends that the trial judge erred in denying his request to withdraw his plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity” on the morning of trial. Defendant argues that the documents received in evidence at this time showed “good cause”; therefore, the trial judge abused his discretion in not allowing such a change of plea under article 561 of the Code of Criminal Procedure.

The context facts are as follows. Lionel Delpit (defendant herein) and one Michael Dolliole were charged jointly in the same information with the crime of armed robbery. Both defendants pleaded not guilty at arraignment. Each was represented by separate defense counsel. On the morning of trial but before selection of the jury, Delpit sought permission to change his former plea of not guilty to a combined plea of not guilty and not guilty for reason of insanity. In support of this motion, Delpit filed the following documents in evidence: a report from the Orleans Clinics of Psychology which states that defendant (age seventeen) is functioning in the lower end of the borderline mental retardation range of intelligence with an IQ of 74; a letter from the director of the Urban League of Greater New Orleans (Street Academy) in which it is stated that, based upon psychological tests and personal observations, Del-pit is considered to be mentally retarded; it further provides that Delpit’s low mentality limits his ability to make rational everyday decisions and to determine “right or wrong” in certain situations; a report of a former teacher of Delpit recites that Delpit was classified as “Educable Mentally Retarded”; a letter from a former probation officer states that Delpit had a “limited intellectual capacity”; an affidavit of Delpit’s mother sets out that her son has been a problem since he was a small child; it further provides that he was “declared incompetent” by the school board, does not seem “to know basically right from wrong,” had to be evaluated by the school board before he could enter school, was rejected by the Armed Forces, and attended the psychiatric clinic at' Charity Hospital when he was a small child.

Counsel for Delpit also informed the court that defendant was presently undergoing psychiatric treatment at DePaul and that he had written for a report which had not yet been received. At this point, the trial judge proceeded to consider a motion for continuance by counsel for the co-defendant (Dolliole) who informed the court that two days earlier he had been advised by the district attorney that the case would not be tried on the day set; as a consequence, he was “totally unprepared” for trial. Delpit then joined in the request for a continuance in order to give him additional time to secure the psychiatric report from DePaul. He stated that three weeks should give him sufficient time to obtain the report. The district attorney admitted that he had advised counsel for Dolliole two days earlier that the state could not proceed at trial on the date scheduled (November 6); however, the following day the posture of the case changed so that it could be tried. Accordingly, he notified the offices of counsel for both defendants (both attorneys were out of town) to be prepared for trial on the next day. The trial judge first stated:

In order to convenience counsel, but also in order to have them comply with the law on the merits of the motion, I feel that I will grant the motion for a continuance on the totality of the circumstances, particularly do I want to give the defendant, Delpit, an opportunity to establish, if he can, that I should permit the plea of not guilty by reason of insanity to be filed. But that’s not the sole basis of it. The other basis is that I cannot lose sight of the fact categorically that two days ago the counsel was informed by the State, categorically, the case would not go to trial today. And I suppose that action should be taken accordingly. I feel that the motion for a continuance is justified, but should be in writing as the code says. I’ll require both counsel before the close of the day to put down in a thorough, plenary motion the reasons that you have orally stated.

Witnesses were then called and counsel approached the bench. Counsel for the co-defendant stated that, while he had previously moved for a continuance, he agreed with the court that he had no legal grounds for requesting same. However, counsel stated: “If they should make a motion for a continuance, I ‘would join in that continuance.” The prosecutor then stated that some of the state witnesses who were not previously present had now arrived and another was on her way. The state and counsel for co-defendant (Dolliole) then announced ready for trial. When counsel for Delpit was asked as to his position, he stated: “I stand on my original motion, Your Honor, for reasons stated.” The court then denied the motion for a continuance and ordered the trial to proceed. The state moved to sever Dolliole and to proceed to trial with Delpit only. Delpit reiterated his request to change his plea. The trial judge overruled the motion and ordered the case to proceed to trial. It is interesting to note that the record reflects that on November 10, 1975 (four days later) the bill of information was nolle pressed as to Michael Dol-liole.

La.Code Crim.P. art. 561 provides:

The defendant may withdraw a plea of ‘not guilty’ and enter a plea of ‘not guilty and not guilty by reason of insanity,’ within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial.

In State v. Taylor, 254 La. 1051, 229 So.2d 95 (1970), we reversed a conviction on the finding that the trial judge abused his discretion in refusing to allow defendant on the day of trial to change a plea of “not guilty” to a combined plea of “not guilty and not guilty by reason of insanity.” We concluded that the coroner’s testimony that defendant was a schizophrenic supported by the factual testimony of the sheriff taken at a previous hearing on a motion for appointment of a sanity commission to determine defendant’s mental capacity to proceed and defense counsel’s offer to produce the testimony of an inmate confined in jail with defendant to the same effect was a sufficient showing of “good cause” under article 561 to have required the trial judge to allow such a change of plea on the day of trial, we made this finding despite the fact that the trial judge had previously ruled that defendant was sane and mentally capable of assisting in his defense based upon a report of the sanity commission (consisting of three psychiatrists) to the same effect. In State v. George, 262 La. 409, 263 So.2d 339 (1972), defendant did not seek to change his plea from “not guilty” to a combined plea of “not guilty and not guilty by reason of insanity” until after the jury was selected and sworn and both the state and defense had made their opening statements. We held that the trial had already commenced; therefore, the motion was not timely made under La.Code Crim.P. art. 561. We pointed out that in Taylor, the motion to change the plea was filed before the commencement of the trial. Hence, we did not pass upon the merits of whether defendant could have shown good cause for the court to permit the change of plea.

In the instant case, defendant sought to change his plea prior to commencement of trial. We are also satisfied that the documents filed in evidence, together with defense counsel’s assertion that defendant was presently undergoing psychiatric treatment at DePaul and that he had written for a report which he had not yet received, constituted a sufficient showing of “good cause” under article 561 of the Code of Criminal Procedure to have required the trial judge to permit defendant to withdraw his former plea of “not guilty” and enter a combined plea of “not guilty and not guilty by reason of insanity.” Moreover, there is no indication that defendant sought the change of plea as a dilatory tactic. We are also impressed by the fact that the trial judge at first seemed prepared to grant Delpit additional time to establish good cause to change his plea and then under circumstances and for reasons unrelated to the merits of Delpit’s request, refused to permit him to change his plea and ordered the trial to proceed immediately.

Under the facts and circumstances here presented, we consider that the trial judge was in error and clearly abused his discretion in not permitting defendant to change his plea. As a consequence, defendant was denied the right to present evidence of insanity or mental defect at the time of the offense. La.Code Crim.P. art. 651. Accordingly, a new trial must be granted.

DECREE

For the reasons assigned, the conviction and sentence are annulled and the case is remanded to the district court for a new trial.

      . United States Supreme Court vacated the judgment insofar as it left undisturbed the death penalty imposed and remanded to this court for further proceedings. 411 U.S. 902, 93 S.Ct. 1532, 36 L.Ed.2d 192 (1973). On remand, the death sentence was annulled and the case was remanded for resentencing. 277 So.2d 633 (La.1973).