author: DIXON, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Alfred JOSEPH and Gilbert Hill.
    No. 59684.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for Gilbert Hill.
    Frederick T. Kolb, Sessions, Fishman, Ro-senson, Snellings & Boisfontaine, New Orleans, for Alfred Joseph.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John L. A. Lenfant, IV, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Alfred Joseph and Gilbert Hill were jointly indicted for possession of heroin with intent to distribute, in violation of R.S. 40:966. After separate jury trials, defendant Joseph was convicted of attempted possession of heroin with intent to distribute, found to be a habitual offender, and sentenced to serve twenty-five years at hard labor; defendant Hill was convicted of possession of heroin and sentenced to serve ten years at hard labor. Joseph relies on five assignments of error and Hill relies on nine assignments of error for reversal of their convictions and sentences. Finding reversible error in the first assignments of error of both defendants, we pretermit consideration of the other assignments.

Defendants contend that the trial court erred in denying their motions to suppress evidence seized. The basis of their motions was that the affidavit used to procure the search warrant was inadequate to establish probable cause for a search.

Pursuant to the search warrant, the following evidence was seized: fifteen tin foils of brown heroin, one hypodermic syringe and hypodermic needles with holders, over $100 in currency, numerous pieces of paper with writing and numbers allegedly of the type used by heroin sellers to record sales, and various other paraphernalia related to the use of heroin.

The reasons and facts for the request of a search warrant set out in the affidavit of Detective Frank Ben, upon which the warrant’s issuance was based, read as follows:

“1. On Thursday, October 24, 1975 at about 7:30AM Det. Frank T. Ben received information from Det. Albert Green at the Urban Sq. Office that heroin was being sold from 504 Forstall St.
2. At about 8:00AM on 10-24-75 Det. Ben, Green and Johnson went to the area of the 500 block of Forstall St. to conduct a mobile surviellance (sic) of the residence at 504 Forstall St. Det. Green at the time was in contact by telephone with a reliable confidential informant whose information had lead (sic) to arrest and convictions in the past. The C.I. stated that a telephone call would be placed to the officer as soon as he observed drug activity at 504 Forstall St. Meanwhile the officer continued their vehicle surviel-lance (sic) of the area. At about 9:45AM the officers were notified that the white car was in the 500 block of Forstall St. The officers immediately went to the area of the 500 block of Forstall St. and observed a NM walking from 504 Forstall St. and re-enter the white Pont’. The car then left the area. The officers followed the vehicle and subsequently stopped the car at the intersection of Caff in and N. Rampart St. the vehicle lie # was 432B306. As the officers alighted from the vehicle the male in the passenger front seat put several pieces of tin foil into his mouth, and became engaged in a struggle with Det. Ben. The suspect was able to swallow the tin foil. The persons in the vehicle were I.D. as Lehman Jackson NM heroin addict, Russell Lewis NM, who at the time of the interview admitted to swallowing marijuana as the officers stopped the vehicle and Brad Turner NM admitted addict, who admitted that he had swallowed heroin when the officers stopped the car. The trio (3) were released.
3. On 10-25-75 at about 8:00AM Det. F. Ben conducted a surviellance (sic) of the residence at 504 Forstall St. and observed the following:
A) At about 8:55AM the officer observed a white Buick (64) park in the 500 block of Forstall St. with four (4) person in the car.
B) At about 9:00AM Det. Ben observed a tan Chevy Station Wagon park in front of 502 Forstall with a small child and a NM driver and a NF passenger. The male was wearing a yellow shirt and a grey hat and DkGrey checked pants. As he exited the vehicle he motioned for the persons in the white vehicle to come to him. At the same time he took a radio from the car which had a paper bag in the back of it, and walked toward 504 Forstall St. The female and child then left the area in the chevy wagon. The NM opened the door to 504 Forstall St. and the two (2) passengers alighted from the Buick and approached him, but were motioned to the rear of the residence by walking to Douglass St. A short time later the NM re-appeared at the front door of 504, and the two (2) NMs walked from the Douglass side of the residence and back to the car nervously all the while holding one hand in a fist. The Buick then left the area.
C) At about 9:15AM a marked police vehicle passed the intersection of Chartres and Forstall St.
D) At about 9:25AM a Grey and black 71 Cadillac stopped in the intersection of Douglass and Forstall St. with three (3) persons in the car. At the same time the marked police car passed on the levy (sic) in a uptown direction, and the NM came to the door of 504 Forstall and called for them (Cadillac) to park the car and not worry. The passenger alighted from the front seat of the Cadillac and walked to 504 Forstall Street and met with the male from the residence who had exited to the front steps. The two (2) conversed about the police car on the levy (sic), and the passenger told the male that he had also seen a yellow police car down the street, which seemed to unnerve the male, and the two (2) then entered the residence.
A short time later the passenger exited the residence and was pick-up by the Cadillac which blew its horn. The male then exited the residence with a bag which he placed under the back of his shirt, and then entered the Cadillac in the front seat. The car then left the area in the lake direction on Forstall St.
4. With the information received and the surviellance (sic) conducted and the fact that addicts (heroin) were stopped immediately after they left the residence and admitted to have had heroin in their possession it is the belief of the affiant that there is presently being concealed at 504 Forstall St. narcotics.”

C.Cr.P. 162 provides in part:

“A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.”

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court set forth, in a “two-pronged” test, the criterion which a magistrate must follow in determining if an affidavit based upon hearsay has established probable cause for the issuance of a search warrant: (1) the affiant must articulate the basis for his belief that the informant is trustworthy, and (2) the affidavit must indicate the underlying circumstances from which the informant concluded that the narcotics were where he contended they would be. Later the court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), made the criterion more flexible by allowing an informer’s tip which is inadequate under Aguilar standards to be corroborated by independent sources.

This court, in State v. Paciera, 290 So.2d 681 (La.1974), enunciated the following rule, deduced from United States Supreme Court cases, to measure the sufficiency of a supporting affidavit which is based upon informant-supplied data:

“. . . The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the creditability of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information. See State v. Linkletter, 286 So.2d 321 (La.Sup.Ct.1973).” 290 So.2d at 685-86.

The facts set forth in the affidavit in the instant case, relative to the informant’s tip, fail to satisfy the Paciera test. Although the language of the affidavit is unclear, we infer that Detective Albert Green, a non-affiant police officer, obtained information from a confidential informant that heroin was being sold from 504 For-stall Street, which information was relayed to the affiant, Detective Ben. This kind of “double hearsay” may still be sufficient to supply the necessary information to establish probable cause. Paciera, supra. The affidavit does articulate the belief that the informant is trustworthy by making reference to “a reliable confidential informant whose information had led to arrest and convictions in the past.”

What is lacking from the affidavit are the underlying circumstances by which the informant obtained his information. The State argues that the affidavit indicates the confidential informant had person observation of drug activity at 504 Forstall. The State’s reading of the affidavit is inaccurate. The affidavit states that the confidential informant would place a phone call to Detective Green “as soon as he observed” drug activity at the address, and then states that “the officers were notified that the white car was in the 500 block of Forstall St.” This information does not indicate that the informant observed anything more than an automobile near the suspected residence; it does not establish that the informant had direct personal observation of the activity nor does it provide the factual detail necessary for a magistrate to evaluate the reliability of the information.

Although we have determined that the informant’s tip in and of itself would not be sufficient to support a finding of probable cause for issuance of the search warrant, our inquiry does not end there. Spinelli, supra, allows the magistrate to evaluate the independent factual information supplied by the police officers to determine if it corroborates the informant’s tip.

The police officers, in their surveillance of 504 Forstall Street, obtained the following information which Officer Ben included in the affidavit:

(1) On October 24,1975, a black man was seen walking from the vicinity of 504 For-stall and entered a vehicle containing two other black men. The officers followed and stopped the vehicle. Two of the men were identified as heroin addicts, one of whom admitted to swallowing heroin when the officers stopped the car. The other man admitted to having swallowed marijuana upon being stopped.

(2) On October 25, 1975, a black man left a car parked on the block, carrying a radio which had a paper bag in the back of it, began to enter 504 Forstall, motioned to two other black men who had left another car, and then entered by the front door. The two men then returned from the rear of the residence “nervously all the while holding one hand in a fist.”

(3) On October 25, 1975, a short time after the foregoing incident, a passenger alighted from a vehicle and met the man who had earlier entered the residence on the front steps of 504 Forstall. The two conversed about two marked police cars which had passed nearby “which seemed to unnerve” the man, and then entered the residence. Later the passenger returned to his vehicle, and the other man left with a bag he placed under the back of his shirt and joined the passenger in the vehicle.

We find that the stop of the vehicle in (1) above was illegal, having been made without probable cause. Therefore, we will not allow the information obtained from the stop to be considered in determining if the affidavit submitted presented a sufficient factual basis to establish probable cause for the search warrant.

In State v. Saia, 302 So.2d 869 (La.1974), we held that probable cause was needed to detain or “seize” an individual. When probable cause is not present, any information obtained as a result of the seizure is inadmissible into evidence. In the instant case the officers were notified of a certain car parked in the 500 block of Forstall, saw a black man walking from 504 Forstall (testimony at a hearing on the motion to suppress established that the officers did not actually see the man exiting the residence but merely saw him in the vicinity of the residence) and enter the vehicle, and then followed and stopped it. There was no mention of any suspicious behavior, and no direct connection with the suspected residence was made. Clearly, the officers lacked sufficient evidence to justify the stop. Even the criteria of C.Cr.P. 215.1 (that there must be a “reasonable suspicion” the suspects are committing, have committed, or are about to commit a crime) is absent.

The question of whether evidence secured by a judicially issued search warrant should be suppressed when a significant part of the showing of probable cause made in the affidavit contains evidence and statements illegally obtained from third persons, which would be inadmissible against the accused in a trial of his guilt or innocence, has previously been considered by this court. State v. Culotta, 343 So.2d 977 (La.1976). In Culotta it was determined that an arrest of some third persons was illegal. Certain evidence was obtained along with statements which were included in the affidavit submitted for issuance of the search warrant. Included in the affidavit was other information which in and of itself would have been sufficient to justify the issuance of a search warrant. The court held:

“We do not believe that the scope of the constitutional provision was necessarily intended to exclude from the trial evidence otherwise untainted, secured through a search warrant, because part of the showing made in the affidavit used to secure the warrant is based upon evidence illegally obtained from third persons and inadmissible, if objected to at trial, against either them or the accused. (If the sole basis of the affidavit was such illegally-secured evidence, our conclusion might well be different.)” 343 So.2d at 982. (Emphasis added).

The facts of Culotta are distinguishable from the instant situation. Although in our case the statements procured from the illegal stop did not form the “sole basis” of the affidavit, the other corroborating facts regarding the other two suspicious looking incidents in (2) and (3) above would be insufficient to bolster the inadequate informant’s tip in order to justify a finding of probable cause for issuance of the warrant. In Culotta the affidavit, absent the illegally obtained evidence and statements, could have supported a finding of probable cause.

We find it necessary, therefore, to disregard the affidavit’s reference to the stop and admissions made by the vehicle’s occupants. We are left with the following: (1) a tip from a confidential informant known to be reliable in the past, (2) no facts to show how the informant obtained his information, (3) police observation of four different people entering 504 Forstall, two of whom left from the rear holding one hand in a fist, another who left apparently holding nothing, and another man leaving with a paper bag he inserted under the back of his shirt. In addition, the officers heard two of the men expressing their apparent concern about the presence of police vehicles in the area.

The facts discovered through the police surveillance are insufficient corroboration for the informant’s tip to provide the basis for a finding of probable cause. There was not present a “continuous stream of highly unusual conduct” as existed in State v. Williams, 338 So.2d 1365, 1369 (La. 1976), which this court found “indicated criminal rather than innocent seeming conduct” and thus was held sufficient to support the issuance of a search warrant. In Williams, within a twenty minute period, eight different cars parked in front of defendant’s apartment; the occupants entered and stayed only three to five minutes before departing. In addition, many of those . frequenting the apartment were known drug addicts or known to have been involved in drug traffic. In the present case no contention is made that any of the four persons who entered the residence were known to be connected with drugs in any way, nor are clenched fists and a paper bag enough to raise the probability that drug trafficking was involved. Even a “common sense and realistic” reading of the affidavit (as is allowed by the rule of reason adopted in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)) would not cause the “suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli, supra, 393 U.S. at 418, 89 S.Ct. at 590.

Accordingly, we conclude that the affidavit failed to make a sufficient showing of probable cause; the search warrant was improperly issued. Hence, reversible error was committed by the trial court’s refusal to suppress the evidence seized.

For the reasons assigned, the convictions and sentences are reversed and the case is remanded for a new trial.

TATE, J., concurred in the result and filed opinion.

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

TATE, Justice,

concurring.

I concur with the majority holding that the affidavit for the search warrant did not meet constitutional standards. However, I do so for a different reason.

I do not believe that the affidavit shows probable cause for search of this residence, even if the issuing magistrate permissibly could consider evidence gained from the illegal stop. (That is, if the illegal stop of these third persons indirectly produced indi-cia of probable cause to search the home, I am not prepared to say that State v. Culotta, 343 So.2d 977 (La.1976) is authority to suppress this evidence. It was seized as the result of a search warrant, issued and executed as the result of an affidavit showing probable cause, in which merely part of the showing (even though crucial to tip suspicion into probable cause) was indirectly obtained as the result of an illegal stop.)

The affidavit shows, essentially:

An unidentified informant, of sufficient past reliability, informed the police that heroin was being sold from 504 Forstall St. (The factual basis for this faceless informer’s tip is not shown; under the jurisprudence it must be supplied elsewhere in the affidavit.)

As a result, the police officers conducted surveillance of these premises. The confidential informant also stated that he would telephone the officer as soon as he observed drug activity at the premises.

The informant telephoned the officer that “the” white car was in the 500 block— the officers then saw an individual leaving 504 Forstall Street and “re-enter” the vehicle. The police illegally (since without probable cause) stopped the vehicle, in which were: a heroin addict; another individual who admitted to swallowing marijuana; and a third individual who admitted he had swallowed heroin. No information shown by the affidavit indicates that these individuals had secured a drug from 504 Forstall Street.

Other incidents of the surveillance are recounted, none of which amount to more than suspicious activity. As the majority states, neither singularly nor in cumulation do these incidents amount to probable cause.

The chief probable cause relied upon is “the fact that addicts (heroin) were stopped immediately after they left the residence and admitted to have had heroin in their possession.”

The fact that a heroin addict visits a house does not constitute probable cause to search that home for heroin, unless in addition some reliable information indicates that the addict secured from that residence any heroin found in his possession. See State v. Kuhlman, 293 So.2d 159 (La.1974). For that reason, the affidavit does not show probable cause to search the home of the accuseds.

I should also note my present opinion that defendant Hill shows reversible error by Assignment of Error Nos. 6 and 7. There, in aid of its attempt to prove intent to distribute heroin, the state introduced papers with notations made by the co-defendant Joseph, who was tried separately. In my opinion, this evidence was hearsay as to Hill, since the writings were introduced to prove the truth of their content.

This hearsay evidence was prejudicial to Hill. I do not believe it to be admissible under any recognized exception to the hearsay rule. Further, Hill was denied his confrontation rights to cross-examine the author (Joseph) of the writing concerning these incriminating notations.

For these reasons, I respectfully concur in the reversal of the convictions.

      . Culotta held that the illegally obtained evidence itself is inadmissible in any criminal prosecution, either against the third persons or against the defendant. It noted, however, that the illegality may be considered too attenuated to affect adversely a defendant not himself ille-gaily searched, La.Const. Art. 1, Sec. 5 (1974). Therefore, no constitutional need exists to suppress other evidence seized by virtue of a search warrant based upon an affidavit showing probable cause founded partially upon information obtained by an illegal stop.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. James Barney HENSON.
    No. 59694.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Charles R. Moore, Moore & Walters, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boudreaux, Jr., Edward M. Leonard, Jr., Walter J. Sen-ette, Jr., Asst. Dist. Attys., for plaintiff-ap-pellee.
   MARCUS, Justice.

James Barney Henson was charged by bill of information with the crime of simple burglary in violation of La.R.S. 14:62. After trial by jury, he was found guilty as charged and was sentenced to serve six years at hard labor. Defendant designated six errors to be urged on appeal in his assignment of errors filed with the trial court. Since he has neither briefed nor argued Assignment of Error No. 4, we consider it to have been abandoned. Accordingly, only Assignments of Error Nos. 1, 2, 3, 5 and 6 remain for our consideration in this appeal. We find it more appropriate to review Assignments of Error Nos. 5 and 6 prior to our consideration of Assignments of Error Nos. 1, 2 and 3.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the trial judge erred in denying his motion for a mistrial based upon the reference of a state witness in his testimony on cross-examination to another crime allegedly committed by defendant.

At trial, the state called to the stand Larry Freeman whose camp was allegedly burglarized by defendant and another individual named L. J. Doiron. On cross-examination, Freeman related how he and a friend, Warren P. Hebert, confronted defendant and Doiron as they were leaving the camp. After a brief verbal encounter, defendant and his companion got into a boat and left the campsite. Freeman testified that he and Hebert then followed the men by boat. He related that during the pursuit, the third boat in which he saw defendant and Doiron riding was a black boat. The following colloquy then occurred:

Q. You said they had three different boats?
A. They had a boat in the river that night, another wooden boat — a jo-boat with a fifty horsepower on it, which was at Johnny Prejean’s camp which was broken into the same night, which Johnny came to the camp and run them out.

Immediately, defense counsel moved for a mistrial on the ground that the witness’ statement was prejudicial and unresponsive to the question. The trial judge denied the motion, but directed the witness to be more responsive to defense questioning. At defendant’s request, the trial judge admonished the jury to disregard the unresponsive portion of the witness’ statement.

A direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible; made within the hearing of the jury by the judge, district attorney or a court official, during trial or in argument, would require a mistrial on motion of defendant. La.Code Crim.P. art. 770(2). However, Larry Freeman was not a “court official,” and therefore article 770 does not apply. Rather, the applicable provision is La.Code Crim.P. art. 771. State v. Hutto, 349 So.2d 318 (La. 977); State v. Hardy, 344 So.2d 1018 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Lepkowski, 316 So.2d 727 (La.1975); State v. Clark, 288 So.2d 612 (La.1974).

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

In the following 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:
(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.

In the instant case, the response was not elicited by the state but was given on cross-examination by defense counsel. There is no indication that the statement was deliberately uttered by the witness to prejudice defendant. We are satisfied that the admonition by the trial judge to the jury was sufficient to dispel any prejudice which might have been created and to assure defendant a fair trial. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 5 lacks substance.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the trial judge erred in denying his motion for a mistrial which was based on a statement made by the prosecutor in his closing argument that a defense witness, L. J. Doiron, had also been charged in this particular matter. After the allegedly improper statement was made, defendant objected to the remark on the ground that it constituted improper impeachment of the witness since no evidence had been presented at trial that Doiron had also been charged with the crime. Defendant’s objection was sustained. Thereupon, defense counsel moved for a mistrial on the basis of the statement. The trial judge denied the motion but admonished the jury to disregard the remark of the prosecutor.

Both Freeman and Hebert testified at trial that Doiron was with defendant at Freeman’s camp on the day of the alleged burglary and was carrying a scabbard knife which belonged to Freeman when he and defendant were confronted as they exited the camp. Doiron testified at trial on behalf of defendant and admitted that he was with defendant on the day of the alleged burglary; however, he denied that they had burglarized Freeman’s camp. On cross-examination, the state questioned Doiron as to his prior convictions in an attempt to impeach him in accordance with La.R.S. 15:495. The state could have questioned the witness as to his arrest or indictment for the same offense for which defendant was being tried to show his bias or interest in the case pursuant to La.R.S. 15:492. State v. Robinson, 337 So.2d 1168 (La.1976); State v. Lewis, 236 La. 473, 108 So.2d 93 (1959). However, the state did not do so. Therefore, it was improper for the prosecutor to have referred to this fact in his closing argument. Nevertheless, we do not find that defendant suffered such prejudice from the- prosecutor’s remark as to warrant the granting of a mistrial. The prosecutor’s remark did not refer to defendant but rather was limited to an attack on the credibility of the witness. Moreover, the prompt admonition of the jury by the trial judge to disregard the prosecutor’s remark was sufficient to cure any prejudice against defendant which the remark might have created and to assure him a fair trial. La. Code Crim.P. art. 771. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 6 is without merit.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

In Assignment of Error No. 2, defendant contends the trial judge erred in denying his motion to appoint a sanity commission which motion was filed after conviction but prior to sentencing. Finding merit in this contention, we do not reach the merits of Assignments of Error Nos. 1 and 3 (denial of defendant’s motion for new trial and in arrest of judgment) for reasons hereinafter set forth.

Prior to argument at the hearing on defendant’s motions for a new trial and in arrest of judgment, defense counsel filed a motion to appoint a sanity commission. In support of the motion, he presented an affidavit of Dr. Curtis A. Steele, a psychiatrist who examined defendant on three occasions after his conviction and who expressed the opinion that defendant was not presently able to understand the proceedings against him or to assist counsel in his defense, and an order signed by another district judge a week prior to the present hearing ordering the appointment of a sanity commission to examine defendant with reference to his mental capacity to proceed with respect to other criminal charges pending against him. The trial judge denied the motion concluding that there was no reasonable ground to doubt defendant’s mental capacity to proceed based on his observation of defendant at trial and particularly during his testimony. However, it should be noted that the trial judge’s observation of defendant at trial was made approximately two months prior to the filing of defendant’s motion to appoint a sanity commission.

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La. Code Crim.P. art. 641. Pursuant to La.Code Crim.P. art. 642:

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

The issue of present insanity or mental incapacity to proceed may be raised at any stage of the proceedings, even after conviction. State v. Luquette, 275 So.2d 396 (La.1973); State v. Gunter, 208 La. 694, 23 So.2d 305 (1945); State v. Allen, 204 La. 513, 15 So.2d 870 (1943). When the issue is raised, the trial court is required to order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed. La.Code Crim.P. art. 643; State v. Keys, 346 So.2d 169 (La.1977); State v. Nix, 327 So.2d 301 (La.1975); State v. Luquette, supra. The appointment of a sanity commission to inquire into the mental condition of the accused is addressed to the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Nix, supra.

In the instant case, the affidavit of Dr. Steele which stated that defendant lacked the mental capacity to proceed was coupled with an order of another district judge ordering the appointment of a sanity commission to examine defendant’s mental capacity to proceed on other pending criminal charges. This order had been signed only a week before the denial of defendant’s motion for the appointment of a sanity commission in the present case. The affidavit of the psychiatrist and the court order clearly established reasonable ground to doubt defendant’s mental capacity to proceed and, hence, the trial judge abused his discretion in denying defendant’s motion. Accordingly, we must remand the case to the trial court for the appointment of a sanity commission to examine defendant with reference to his mental capacity to proceed.

Since we conclude that defendant was entitled to the appointment of a sanity commission, any further steps in the prosecution taken after the issue of defendant’s mental capacity to proceed was raised by the filing of his motion must be vacated and set aside. La.Code Crim.P. art. 642. These steps include the hearing on defendant’s motions for a new trial and in arrest of judgment, the denial of these motions, and the sentencing of defendant on the instant charge. Should the trial court determine in a contradictory hearing conducted after the examination of defendant by the sanity commission as required by La. Code Crim.P. art. 647 that defendant has the mental capacity to proceed, the criminal prosecution shall be resumed and the court may proceed to hear and consider the merits of defendant’s motions for a new trial and in arrest of judgment and to sentence him in the event that the motions are denied. La.Code Crim.P. art. 648. Defendant is reserved the right to appeal any adverse ruling of the trial court on the issue of his mental capacity to proceed and/or his motions for a new trial and in arrest of judgment as well as any reviewable error in his sentence.

DECREE

For the reasons assigned, the ruling of the trial judge denying defendant’s application for the appointment of a sanity commission is reversed and his rulings on the motions for a new trial and in arrest of judgment and the sentence imposed on defendant are vacated and set aside; the case is remanded to the district court with instructions to the trial judge to appoint a sanity commission to examine defendant with reference to his mental capacity to proceed and thereafter to proceed in accordance with the views herein expressed.

      . State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.R.S. 15:492 provides:
      When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.

      . In Assignment of Error No. 1, defendant contends that the trial judge erred in denying his motion for a new trial based on newly discovered evidence which purportedly would tend to prove that he was insane at the time of the commission of the offense. In Assignment of Error No. 3, he contends that the trial judge erred in denying his motion in arrest of judgment in which he alleged that the bill of information was substantially defective in that it did not comply with La.Code Crim.P. art. 465 and improperly charged him with the simple burglary of a building while the evidence revealed that the structure burglarized was a houseboat or floating camp.

      . La.Code Crim.P. art. 643 provides in pertinent part:
      The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed. (Emphasis added.)


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Robert L. ELZIE.
    No. 59708.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Joseph Cordill, Jr., Love, Rigby, Dehan & Love, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Robert Elzie was indicted for committing an attempted aggravated rape which occurred on May 10, 1976 in Shreveport, Louisiana. He was convicted by a jury and sentenced to thirty years imprisonment at hard labor subject to conditions provided by law. He now appeals that conviction and sentence on the basis of six errors which he alleges occurred during his trial. We affirm.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in allowing the admission of hearsay testimony, a repeating of what the rape victim said. The witness, a Mrs. Wright, testified that shortly after the incident the rape victim came to her home, frightened and crying hysterically. The witness said:

“And I kept asking her what was wrong. And she said, nothing, at first. And I just kept asking her. And she said: May I use your telephone? And I said: Well, what’s wrong, [name of victim]. And then she told me. She said: Robert raped me. And I said — and I said: Well, yeah use the phone. So, she called her husband and the police.” [emphasis added]

The statement of which defendant complains is certainly hearsay because it is the out of court, unsworn statement of a third person offered for the truth of its content. State v. Jacobs, 344 So.2d 659 (La.1976); McCormick, Law of Evidence § 225 at 449 (Hornbook ed. 1954). But we have long recognized an exception to the hearsay rule allowing admission of the early complaints of rape victims. State v. Brown, 302 So.2d 290 (La.1974); State v. Hills, 241 La. 345, 129 So.2d 12 (1961). When there is no unexplained lapse of time between the rape and the victim’s complaint, and when the utterance is spontaneous, the person to whom the complaint was made is allowed to repeat the complaint in court. McCormick, supra § 272 at 580; Weinstein’s Evidence, § 803(2)[01] at 803-79.

The rape victim here dressed and walked to her friend’s house to call her husband and the police because she had no phone of her own. The testimony establishes that she arrived at her neighbor’s house a very few minutes after the rape occurred, frightened and hysterical, and under her friend’s questioning she finally admitted, “Robert raped me.” Under these circumstances, the witness’ testimony as to this victim’s statement, which was made under the pressure of the rape and very soon after its occurrence, was properly admitted into evidence.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

Defendant contends in assignment number two that the trial court erred in allowing the state to inquire into facts regarding the true nature of a defense witness’ prior conviction. In assignment number four defendant complains of similar questions asked him about one of his prior convictions.

The witness Willie Elzie, defendant’s brother, was questioned about his prior conviction for simple battery. The questioning produced information, over defendant’s objections, that a woman had accused him of raping her but he was tried and convicted of simple battery in connection with the “rape” incident.

The defendant, Robert Elzie, took the stand and admitted on direct examination to three prior convictions. On cross-examination, he was questioned about an additional five convictions and admitted, over objection, that he was accused by a complainant of beating and raping her, although he was charged with simple battery ■and pled guilty to that charge.

Defendant complains that these questions served no purpose other than to prejudice the jury against his brother, and to paint him (defendant) as a “bad man,” a violation of State v. Prieur, 277 So.2d 126 (La.1973). This argument is without merit. The jurisprudence of this Court has held that the state, in impeaching a defense witness, may not only establish the witness’ prior convictions, but may also cross-examine the witness about the details of the prior incident out of which the conviction arose in order to show the “true nature” of the offenses. State v. Jackson, 307 So.2d 604 (La.1975), followed in State v. Elam, 312 So.2d 318'(La.1975); State v. Williams, 339 So.2d 728 (La.1976); and State v. Jackson, 339 So.2d 730 (La.1976). For this reason, the “true nature” of the offenses at issue were properly brought out on cross-examination. The assignments lack merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that two photographs taken of the victim were improperly admitted because no proper foundation had been laid for their introduction. The photographs showed a tatoo on the victim’s right thigh; they did not show her face.

The following facts are necessary for an understanding of the complaint. The defense in this case was consent, defendant Elzie testifying that he had slept with the victim about fifteen times, always in the daytime. On cross-examination he testified that he knew of no distinctive markings or tatoos on the victim’s body. He was shown the two photographs and told they were pictures of the victim, over defense counsel’s objection that the pictures did not show the woman’s face. Defendant admitted that he would not have known the victim from the photographs. Subsequently, the state offered the photographs into evidence, and defense counsel objected on the basis that the state had not established when or by whom the pictures were taken. Additionally it was argued that there had been no testimony identifying the person in the photographs as the victim. Although the photographs were admitted into evidence at that time, they were not shown to the jury until after the victim’s husband had testified that she had had the tatoo seven years and that he had been present at the sheriff’s office when the two photographs in question were taken. Only after this testimony were the photographs shown to the jury.

The law regarding admission of demonstrative evidence was stated in State v. Dotson, 260 La. 471, 511, 256 So.2d 594, 608-09 (1971), as follows:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case.
* * * * * *
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury.”

When a witness has identified a photograph as a true depiction of what it purports to represent, the photographer’s testimony is not. necessary for laying the foundation. State v. Anthony, 347 So.2d 483 (La.1977); State v. Browning, 290 So.2d 322 (La.1974).

The impact of the photographs upon the jurors did not take place until the jurors were allowed to view them. That viewing did not take place until after the victim’s common-law husband had identified the photographs as being of the victim. This identification constituted a proper foundation for admission of the evidence. Under these circumstances, the trial judge’s allowing the photographs into evidence before the foundation was laid did not constitute prejudicial error. C.Cr.P. art. 921. The assignment lacks merit.

ASSIGNMENT OP ERROR NO. 5

Defendant complains that the trial court erred in allowing a state witness to testify about alleged fraudulent practices. He asserts that the testimony was prejudicial and not relevant to a material issue in the case. The specific testimony of which defendant complains was that of the victim’s common-law husband who told of certain bribe offers made by defendant’s grandmother. The grandmother had testified in her grandson’s defense, and on cross-examination had denied attempting to bribe the victim into dropping charges by offering her money and promising to send defendant to California. On rebuttal, the victim’s husband testified over defense objection that defendant’s grandmother had indeed made such offers to him and his wife on two occasions.

The state introduced the testimony as to the bribe offers so as to impeach the witness’ credibility by showing her bias, interest or corruption in relation to the instant prosecution. R.S. 15:492. Since the state had cross-examined Mrs. Elzie about the alleged conversation and she had denied having had such a conversation with the victim or her husband, a proper foundation had been laid for the introduction of a particular fact showing bias, interest or corruption through the testimony of another witness. State v. Johnson, 322 So.2d 119 (La.1975); 21 Loy.L.Rev. 346 (1975). The assignment lacks merit.

ASSIGNMENT OF ERROR NO. 6

Defendant argues that the trial court erred in allowing into evidence a letter allegedly written by defendant to the victim. In the letter the writer apologized to the victim for “that little incident” and encouraged her to “show him a little sympathy” by not appearing in court. Defendant objected to the introduction of the letter on the basis that there was no positive evidence to support the state’s claim that defendant Elzie wrote the letter. The assignment lacks merit.

Although defendant Elzie denied writing the letter in question, he had earlier admitted on cross-examination that he had written a letter to the victim and indicated that he knew she had given that letter to the prosecutor. Additionally, a handwriting expert positively testified that the letter and defendant’s handwriting sample were penned by the same hand. The state, therefore, did provide a sufficient foundation for the introduction of the letter. R.S. 15:441; State v. Dotson, supra. The assignment lacks merit.

Accordingly, the conviction and sentence of defendant Robert Elzie are affirmed.

AFFIRMED

      . Three Justices of this Court (Justices Tate and Dennis, and the author) have expressed disagreement with this jurisprudential rule. See State v. Jackson, 339 So.2d 730 at 731; State v. Williams, 339 So.2d 728 at 730; State v. Jackson, 307 So.2d 604 at 609, 610. Nonetheless, because the majority of the Court persists in adhering to the rule set forth in Jackson, we follow it herein.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Charles LINDSEY.
    No. 59716.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-, nick, Dist. Atty., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

A grand jury indicted the defendant, Charles Lindsey, with distribution of heroin, a violation of LSA-R.S. 40:966. A unanimous jury found him guilty as charged. The court imposed a life sentence without benefit of parole, probation, or suspension of sentence.

The defendant appeals. He relies on five assignments of error for reversal of his conviction and sentence. As counsel failed to brief or argue Assignment of Error No. 6, we consider it abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

We adduce the following context facts:

During the fifteen month, narcotics investigation known as “Top Cat Operations,” the defendant sold an undercover agent, Officer Taplin, two bundles (fifty tin foil packets) of heroin for $350.

ASSIGNMENT OF ERROR NO. 1

Officer Reiher conducted a surveillance of the defendant and Officer Taplin’s pre-arranged meeting at Washington Avenue and Willow Street. (After this meeting, they drove to a different locale to make the sale.) In describing Officer Taplin’s approach, Officer Reiher stated:

“The officer looked as though he was going to park in that particular location, but then decided then — it appeared that he was going to park . . . ” [Tr. p. 21.]

Defense counsel objected as to testimony concerning what Officer Reiher “may or may not have decided or thought at the time.” The court overruled the objection.

Assuming, without deciding, that the court erred in overruling the defense objection, we find that he was not prejudiced thereby. A State photographic exhibit, S-10, depicted Officer Taplin’s car parked on Washington Avenue and Willow Street. Likewise, Officer Taplin testified that he parked his car at that intersection in order to meet the defendant. As the evidence went to the jury on two other occasions, we find no reversible error. See LSA-C.Cr.P. Art. 921; State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966).

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, AND 4

The defendant contends that the court’s ruling evidence concerning Henry Lee’s role in “Top Cat Operations” irrelevant curtailed his constitutional right to cross-examination. See La.Const. Art. 1, § 16 (1974).

Counsel attempted to question three undercover officers (Reiher, Driscoll, and Tap-lin) on Lee’s involvement in the fifteen month narcotics investigation. The State objected, contending that the only relevant inquiry would be into Lee’s involvement in the instant offense. The court sustained the objections, but gave counsel the opportunity to establish the evidence’s relevancy with the instant offense. In addition, the court rephrased questions posed to restrict

the scope of inquiry to Lee and the present heroin distribution. The witnesses answered these questions.

The relevancy of evidence must be determined by the purpose for which counsel offers it. LSA-R.S. 15:442. This relevancy determination lies within the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. State v. Winston, La., 343 So.2d 171 (1977); State v. Gallow, La., 338 So.2d 920 (1976).

Because the trial judge determines the relevancy of evidence by the purpose for which it is offered, it is crucial for counsel to state the purpose. This must be done contemporaneously with the offer of evidence so as to allow the judge to make an intelligent ruling. The concept of alerting the trial judge to the objections and reasons is also embodied in Louisiana Code of Criminal Procedure Article 841. See State v. Charles, La., 326 So.2d 335 (1976).

Here counsel neglected to state the ■purpose of this evidence when he offered it and when the judge ruled. In his brief, he alleges that the evidence was relevant to his entrapment defense.

In State v. Braggs, La., 334 So.2d 215-216 (1976), the defendant presented a similar issue. He argued that the court unduly restricted his cross-examination by sustaining the State’s objections. Therein we stated:

“The record reflects that the question to which the State objected was asked, in substantially the same form, twice by defense counsel and the objection to the question was sustained twice. On neither occasion did the defense inform the court of the relevance of the question. The court was not informed at the time of the objection that the defendant’s cross-examination was directed toward a defense of entrapment. Neither can we glean from the record that the objection was erroneously sustained nor that any prejudice was suffered by the defendant.” Since the trial court ruled without the

benefit of the defendant’s theory of relevancy, we conclude that the court did not abuse its discretion in disallowing the evidence.

Even if counsel had timely informed the court of the entrapment theory, we still find the ruling a legitimate exercise of the court’s discretion. Evidence of Lee’s general involvement with “Top Cat Operations” is irrelevant to the defense of entrapment presented in the present case, since Lee did not participate in this heroin sale. Entrapment exists in “those instances in which a defendant is induced or incited to commit a crime not originally intended or contemplated by him, for the purpose of arresting and prosecuting him.” [Emphasis supplied.] State v. Turner, 241 La. 94, 127 So.2d 512-514 (1961). See also State v. Harrington, La., 332 So.2d 764 (1976); State v. Kelly, 263 La. 545, 268 So.2d 650 (1972). Thus, the defense of entrapment is only relevant to the crime charged.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 5

The defendant avers that the trial court erred in holding defense Exhibit Nos. 3 and 5 irrelevant.

The record identifies D-3 as a bill of information in Case No. 195-245, and D-5 as four documents relating to Arrest No. 420829. The defense contends that “(s)aid exhibits were important to establish a character picture of Henry Lee which would provide weight to the defense of entrapment.” Presumably, the information and arrest concerned Lee.

For the same reasons set forth in the above assignments of error, we conclude that the defendant has failed to prove that the judge has clearly abused the discretion afforded him in determining the relevancy of this evidence.

This assignment of error is without merit.

We note, ex proprio motu, that the sentence imposed is illegal. See LSA-C. Cr.P. Art. 920(2). The district court sentenced the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. One guilty of distribution of heroin “shall be sentenced to life imprisonment at hard labor and, in addition, may be required to pay a fine of not more than Fifteen Thousand Dollars.” LSA-R.S. 40:966 B(1).

The statute does not bar parole. Hence, the sentence must be reduced to the statutory requirements. See State v. Jones, La., 341 So.2d 3 (1976); State v. Marks, La., 337 So.2d 1177 (1976).

For the reasons assigned, the conviction is affirmed. However, the sentence imposed is vacated and set aside, and the case is remanded to the district court for resen-tencing in accordance with law and the views herein expressed.

DIXON and CALOGERO, JJ., concur.

      . At the time of trial, Henry Lee was deceased.

      . Officers Reiher, Driscoll, and Taplin testified that Lee never aided the police or participated in this sale. Taplin explained that Lee was an “unwitting informer” who did not know he was an officer. Taplin associated with him on occasions in order to ingratiate himself into the drug ring.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Michael PENSON.
    No. 59717.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Michael J. Scurto, Terrebonne Parish Indigent Defender Program, Law Office of Gerald F. Lofaso, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant Michael Penson was charged by bill of information with the May 28,1976 simple burglary of a structure known as Heaven to Eleven at 1134 Barrow Street, Houma, Louisiana, belonging to Ethel Lae-our and being leased to Deborah Pullaro. La.Rev.Stat. 14:62. He pled guilty, waived trial by jury and was found guilty in a bench trial on January 4, 1977. He was thereafter billed as a multiple offender and sentenced to ten years at hard labor.

On the trial, at the conclusion of the State’s case, the defense moved for a judgment of acquittal, asserting that the only evidence connecting defendant to the offense were latent fingerprints at the scene of the alleged crime. The motion was denied, and without objection the defense proceeded with the presentation of its case. The alleged erroneous ruling of the court on this motion for judgment of acquittal is relied upon in this appeal for reversal of the conviction and sentence.

The State’s evidence reflects that shortly before 8 o’clock on the morning of May 28, 1976 Karen Yon Senden was at work in the Foxy Lady Beauty Salon in the 1100 block of Barrow Street in the city of Houma. A customer came in and told her that the display window in the Heaven to Eleven shop next door had been broken. She went out, viewed the window and then went to the rear of the building where she found the back door of the Heaven to Eleven shop ajar. A glance into the interior revealed that a rack of dresses were missing. She therefore called the police.

The officers of the Houma Police Department responded to the call of a possible break-in. Upon arrival at the scene they found the plate glass display window in the front of the shop had been broken leaving a hole large enough to permit entry by a burglar. On checking the rear of the building the officers also noted that the back door was ajar. On these findings they called the owner Debbie Pullaro who arrived shortly, at which time the officers entered the shop with her.

Inspection disclosed that a number of dresses valued at $300 were missing together with a T.V., adding machine, and calculators. The burglar alarm had also been tampered with. Pullaro further advised that the missing articles were there when she locked up the night before, the window was not broken, and the back door was closed at that time.

Detective Ralph Bergeron then began a search for latent fingerprints at the front display window where the entry had evidently been accomplished. Several fragments of the broken glass yielded latent prints which Detective Bergeron lifted. He also found a ball pen hammer lying against the wall at the site of the break-in. Because of the porous handle, the detective found it improbable that latent prints on that object could be lifted with his limited facilities and skill. He decided the same would be true of the knob to the back door. In his experience, door knobs did not carry latent prints because the grip required to turn them left only smudges or partial prints difficult to identify.

Detective Bergeron then submitted the fingerprints, the fragments of glass and the hammer to the Sheriffs office for further analysis and evaluation. There it was determined by Lieutenant Deroche, an expert in the field, that the several fingerprints taken from the broken glass matched those of the defendant Penson’s. The State also established that Penson did not have the authority or permission to enter this building and that the building was closed and locked at the time of the unlawful entry. Pullaro also testified that the exterior of the display window was washed once a week.

It is the defense position on this appeal that even if the State has established the other elements of simple burglary, the only evidence connecting the defendant to the evidence were the latent fingerprints found on the glass fragments at the point of entry. This evidence, the defense contends, is insufficient to sustain a conviction. To support this theory Article 778 is cited. It reads:

“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of the defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
“If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.”

In State v. Douglas, 278 So.2d 485 (La.1973) this Court construed Article 778 at a time when it permited a directed verdict in jury trials. It has since been amended to authorize judgements of acquittal only in bench trials. However, the salient unchanged provisions of the article invoked by the defense pertain to the situation where “the evidence is insufficient to sustain a conviction.” But this language cannot lend support to the defense contention. Reliance on the Douglas decision is inappropriate. The decision in Douglas was that “if the evidence is insufficient to sustain a conviction” refers to a situation in which the prosecution has “produced no evidence to prove a crime or an essential element.”

Thus it has been repeatedly stated that this Court will not, on review, overturn the finding of the trier of fact on a question of guilt or innocence unless there is no evidence at all of the crime or of an essential element thereof. The defense acknowledges this “well settled” proposition and cites these cases as authority to that effect. State v. Elzie, 343 So.2d 712 (La.1977); State v. Perkins, 337 So.2d 1145 (La.1976); State v. Pryor, 306 So.2d 675 (La.1975).

Reference to our summary of the evidence supports a finding of an unauthorized entering of a structure with intent to commit a theft therein. La.Rev.Stat. 14:62. Defendant’s connection with the unauthorized entry and resulting theft is demonstrated by the presence of his fingerprints on several fragments of glass found at the broken plate glass display window. This, together with the showing that the window was recently washed tended to place defendant at the point of entry recently. This highly probative, convincing, positive, and objective finding is “some” evidence connecting defendant as the perpetrator of the crime.

Therefore, a contention based upon the insufficiency of the evidence is not reviewable in this court. La.Code Crim.Pro. art. 858; State v. Plummer, 281 So.2d 716 (La.1973); State v. Williams, 262 La. 160, 262 So.2d 507 (1972); State v. Grey, 257 La. 1070, 245 So.2d 178 (1971).

It is noted also that no contemporaneous objection was raised to the denial of the motion for a judgment of acquittal; and the question raised on this appeal is therefore, not properly presented. La.Code Crim.Pro. art. 841.

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


author: SUMMERS, Justice. TATE, Justice.

text:
    COMMERCIAL UNION INSURANCE CO. v. ADVANCE COATING CO. et al.
    No. 59749.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Peter T. Dazzio, Minos D. Miller, III, Watson, Blanche, Wilson & Posner, Baton Rouge, for defendant-applicant.
    Dan Edward West and H. Evans Scobee, Durrett, Hardin, Hunter, Dameron & Frit-chie, Baton Rouge, for plaintiff-respondents.
   SUMMERS, Justice.

Barouco, Inc., leased to Advance Coating, Inc., an air compressor, a sandblasting machine, fifty feet of air hose and two hundred feet of sandblasting hose. By the terms of the lease Advance expressly agreed to indemnify Barouco, Commercial Union Insurance Company’s insured, for any and all loss or damage occurring to the leased equipment.

On or about August 16, 1974, while Advance was in possession of the leased equipment, a barge afloat on the Mississippi River on which the equipment had been placed sank adjacent or near to the Cargill Grain Elevator Dock. As a result the leased equipment was destroyed and Barouco sustained damage thereby to the extent of $12,515.

Commercial Union Insurance Company paid its insured, Barouco, the owner of the destroyed equipment, its full value. Commercial was, under the terms of its policy, subrogated to Barouco’s rights and claims against Advance and its liability insurers, Reliance Insurance Company and Hartford Accident and Indemnity Company, and against the owners of the barge, Baton Rouge Marine Contractors, Inc., and its insurer, for claims arising out of the alleged negligent destruction of the leased equipment. Accordingly, Commercial filed suit against Advance and its insurers and Baton Rouge Marine Contractors, Inc. and its insurer. Advance answered Commercial’s petition by general denial. Alternatively, Advance alleged that Reliance and Hartford were its liability insurers and made them third party defendants. Hartford denied coverage under its policy insuring Advance.

Reliance filed an exception to Commercial’s petition alleging that the loss occasioned by the alleged neglect of Advance occurred “while the property was waterborne” and such a loss was not covered under its policy because of the following exclusion clause:

“THIS POLICY DOES NOT INSURE AGAINST:
(h) Loss or damage while the property is water-borne except while being transported on any regular ferry:”

The trial court sustained the exception as to Reliance, and Commercial appealed to the First Circuit, where the judgment was vacated and set aside and the case was remanded for further proceedings. 343 So.2d 299, La.App. Certiorari was granted on Reliance’s application. 345 So.2d 906 La.

By consent of the parties the judgment under review is to be considered by this Court as a ruling on a motion for summary judgment.

On the basis of the record before us it may reasonably be inferred that the barge upon which the leased equipment was located was alongside a dock or wharf. Further, that the sandblasting equipment was placed aboard the barge in order that it could be used to sandblast vessels moored at that location. On this inference it is concluded that the barge was afloat, but was not then utilized in transporting the equipment.

Undoubtedly the barge and its burden were water-borne. The problem arises, however, when Commercial contends that the word “water-borne” has two meanings, one being “floated or floating upon the water; supported by water so as not to sink or to touch bottom,” and the other, “conveyed by water and esp. by boat (traffic).” Webster’s Third New International Unabridged Dictionary (1961). A word with double meanings is ambiguous, according to this contention. And if an insurance policy is so drawn as to be ambiguous and, for that reason, susceptible of two or more interpretations, either one being reasonable and sensible, the interpretation most favorable to the insured should be adopted.

Based on these propositions Commercial argues that the equipment was insured because the water-borne exclusion only applied to the equipment while it was being transported on water. Therefore, the equipment afloat alongside the dock, not being transported, was covered.

Commercial’s position is not well-taken. In our view the property was not insured under the policy while it was waterborne, whether it was afloat on a barge at a dock or was being transported on a vessel afloat.

Rules of construction require that words of a contract are to be understood, like those of a law, in their common and usual signification, without attending so much to grammatical rules, as to the general and popular use. La. Civil Code arts. 14 and 1946. After recognizing the general rule that in case of doubt as to its meaning, a contract will be construed against the party who framed it, this Court, in Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72 (1939), adopted the following explanation of the rule:

“But the rule is equally well settled that contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense. The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties, and embodying requirements, compliance with which is made the condition of liability thereon. Neither does the rule prevent the application of the principle that policies of insurance, like other contracts, must receive a reasonable interpretation consonant with the apparent object and plain intent of the parties “In the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability, and to impose whatever conditions they please upon their obligations not inconsistent with public policy; and the courts have no right to add anything to their contracts, or to take anything from them. . . .”

The policy involved here is a Contractor’s Equipment Floater. The brief represents that it covers the property only when it is within the 48 contiguous states of the United States, the District of Columbia and Canada. This limitation indicates, at least, that coverage does not extend to coastal and sea waters. The “water-borne” exclusion then must of necessity apply only to inland waters. The extent of the waterborne exclusion is further to be derived from the limited exception to be found within the exclusionary clause itself “except while being transported on any regular ferry.” The implication which flows from such an exception is that the insured equipment would be transported on land from place to place by its users. In view of the water-borne exclusion, it was necessary to provide this exception to allow transportation of the equipment by ferries encountered en route. Since this is the stated and only exception to the “water-borne” exclusion, no sound reasons appear to justify creating another exception to the broad and comprehensive import of the word “waterborne” — “floated or floating upon the water.”

Logic also supports a conclusion that the water-borne exclusion applies any time the equipment was floated or floating upon the water. It would not be considered waterborne on a stationary fixed drilling platform in a stream or lake or on a dock or wharf permanently affixed to the bottom of inland waters, just as it would not be if situated on land. It is apparent from this reasoning why the insurance policy contains the water-borne exclusion. There is a greater risk of loss to the equipment on water-borne vessels sinking as a result of collisions, storms, leaks and other causes than could be expected to result from its use on land, and this greater risk exists in varying degrees whether the water-borne equipment is tied to the dock or being transported.

Because a word has two meanings, one broad and one more restrictive included within the broader meaning, it does not follow that the narrower meaning was intended. This is especially true when the intention is apparent from the context in which the word is used and the circumstances surrounding the particular insurance contract. Why, then, should the Court adopt Commercial’s position which would deny application of the broader meaning of water-borne in preference to the limited meaning when there is no indication that the more limited meaning was intended? To the contrary, as this opinion attempts to explain, the context of the entire policy and the nature of the equipment insured, together with the clause limiting any exception to transportation on a ferry, present convincing support for a conclusion that the parties understood and intended that the equipment would not be insured when afloat, whether at dockside or while being conveyed by water from one place to another.

It is barely conceivable that the parties intended that the water-borne equipment would be insured while the barge was tied up to the dock, but not insured while it was being towed to another berth, where, upon arrival, it would again become insured when its mooring was accomplished.

All matters considered, we are of the opinion that the reasonable and common sense reading of the exclusionary clause requires a conclusion that the loss suffered here was not covered by the Reliance policy.

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside, and the judgment of the trial court is reinstated and made the judgment of this Court.

TATE, Justice.

I respectfully dissent. The Court of Appeal correctly decided the issue. 343 So.2d 299 (La.App. 1st Cir. 1977).

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

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


author: DIXON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Michael BETANCOURT.
    No. 59777.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rena M. Price, 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., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant Michael Betancourt was found guilty after trial by jury of simple burglary (La.R.S. 14:62) and simple burglary of a pharmacy (La.R.S. 14:62.1). He was sentenced to serve four years at hard labor on each count, the sentences to run concurrently-

On October 13, 1975 a dance studio and an adjoining pharmacy were burglarized. To gain entry, the burglar[s] pried open a metal door to the dance studio and then opened a two foot hole in the cement wall separating the studio and the pharmacy. The prescription department of the pharmacy was ransacked and its narcotic counter emptied; a stereo amplifier was taken from the dance studio. Police investigators lifted several latent fingerprints from two used hypodermic syringes and from a number of prescription bottles scattered on the floor of the pharmacy. The bottles had been stored in sealed boxes prior to the burglary.

Three days after the burglary, police executed a search warrant at the residence of Robert Scott. One of the officers, after entering the bedroom, observed the defendant in a closet counting and sorting pills, then putting them into bags and bottles with labels from the burglarized pharmacy. The amplifier taken from the dance studio was also found in the bedroom. Defendant’s fingerprints matched one of those found in the pharmacy.

A study of the record and defendant's assignments of error reveals no reversible error. Defendant’s conviction and sentence are therefore affirmed.

SUMMERS, J., concurs.

DENNIS, Justice,

dissenting.

The cross-examination of defendant about prior arrests had no relevance other than to improper and impermissible impeachment. R.S. 15:495.

      . Of the twenty-two assignments filed by the defendant, seven were briefed. Those assignments neither briefed nor argued are deemed abandoned. The assignments that were briefed present meritless issues concerning the need for expert testimony; the foundation requirements for the introduction of physical evidence; and cross-examination of defendant about prior arrests, to impeach his testimony on direct that he had never “been in any kind of trouble with the law” in his life.


author: SANDERS, Chief Justice. TATE and DENNIS, JJ.,

text:
    STATE of Louisiana v. Osby BRYANT, Jr.
    No. 59785.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Joe Cordill, Jr., Love, Rigby, Dehan & Love, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Albert S. Lutz, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

A grand jury indicted Osby Bryant, Jr., for the first degree murder of Michael Moo-neyham, a violation of LSA-R.S. 14:30. The State later amended the indictment to charge second degree murder, a violation of LSA-R.S. 14:30.1. The trial jury returned a guilty verdict. The court sentenced defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence for twenty years. He appeals his conviction and sentence, relying upon six assignments of error.

The context facts are that:

According to a pre-arranged plan, two women lured victim, Michael Mooneyham, into an abandoned building where defendant and another male lay in wait. Once the victim was inside, the two men armed with a gun robbed the victim of his wallet, watch, money bag, and keys. Thereafter, defendant shot and killed Mooneyham. The four conspirators fled the scene, leaving the victim’s wallet, thought to be empty, in the room where the shooting occurred and discarding the victim’s keys and money bag soon after leaving the abandoned building. The four then decided to “leave town” to avoid detection and stole a car from a parking lot to effect their escape. En route, they sold the victim’s watch for $10 to purchase gasoline. The Texas Highway Patrol, noticing the car parked on the wrong side of the highway, ran a computer check on the car. The officer, learning that the car had been stolen, arrested the four. After waiving extradition, the four returned to Louisiana where one of the women guided the police to the victim’s body.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

In Assignments of Error Nos. 1 and 2, defendant complains of the introduction of the victim’s money bag and keys into evidence. He contends that because the victim’s wife could not positively identify the items as belonging to her husband, they were improperly admitted into evidence.

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), this Court stated:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
“The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Coleman, 254 La. 264, 223 So.2d 402; State v. Martin, 250 La. 705, 198 So.2d 897; State v. Bertrand, 247 La. 232, 170 So.2d 386.
“The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury. State v. Wright, 254 La. 521, 225 So.2d 201; State v. Whitfield, 253 La. 679, 219 So.2d 493; State v. Progue, 243 La. 337, 144 So.2d 352; 2 Wharton’s Criminal Evidence (12th ed.), § 673, p. 617.”

Willie Marie Washington, an accomplice, testified that within moments after the robbery, defendant threw the victim’s keys away. She testified further that another accomplice, Billy George Payton, threw the victim’s bank bag in that general area after leaving the building. Captain James Hood testified that guided by Ms. Washington, the police located the victim’s body in a vacant building and found the victim’s keys and the green money bag nearby. The victim’s wife, after examining the evidence, testified that her husband carried a similar money bag and that she recognized one of the keys in the set introduced as their apartment key. When asked if the set of keys belonged to her husband, she stated that they were his.

Under the principles announced, we are convinced that the State’s evidence sufficiently identified the keys and money bag for their admission in evidence. Ultimately, the question of connexity was a matter for the jury.

ASSIGNMENT OF ERROR NO. 3

Here defendant complains of the introduction of a photograph depicting the scene of the robbery and murder. The defense argues that the probative value of the photograph is outweighed by its prejudicial effect.

The photograph depicts the scene of the crime. It basically illustrates the neglected nature of the abandoned building, corroborating the testimony of defendant’s accomplices and the officer who found the victim’s body. A very small portion of the photograph, the lower left corner, includes the victim’s leg. There is no wound or blood which might incite prejudice.

To be admissible, a photograph’s probative value must outweigh any possible prejudicial effect upon the jury, and it must be relevant to a material issue at trial. State v. Redwine, La., 337 So.2d 1041 (1976); State v. Cooper, La., 334 So.2d 211 (1976); State v. Smith, La., 327 So.2d 355 (1975).

We conclude that the photograph is relevant and that its highly probative value outweighs any possible prejudice. Therefore, the trial court properly admitted the photograph into evidence.

ASSIGNMENT OF ERROR NO. 4

In this assignment, defendant complains that at this murder trial, the court erroneously admitted evidence of another crime, defendant’s theft of an automobile. The defense argues that the evidence of his theft of the vehicle was only slightly relevant, if relevant at all. He argues that any relevance, however, was greatly outweighed by its prejudicial effect.

Recently, in State v. Davies, La., 350 So.2d 586 (1977), we stated:

“Evidence of flight, concealment, and attempt to avoid apprehension is relevant. It indicates consciousness of guilt and, therefore, is one of the circumstances from which the jury may infer guilt. This rule applies notwithstanding that the evidence may disclose another crime. State v. Brown, La., 322 So.2d 211 (1975); State v. Graves, La., 301 So.2d 864 (1974); State v. Nelson, 261 La. 153, 259 So.2d 46 (1972). See also State v. Lane, La., 292 So.2d 711 (1974); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966); State v. Goins, 232 La. 238, 94 So.2d 244 (1957); 29 Am.Jur.2d, Evidence, §§ 280 et seq., pp. 329 et seq. A court may admit a wide range of evidence to prove flight, concealment, and attempt to avoid apprehension. State v. Nelson, supra.”

As previously noted, after the robbery and murder, the defendant and his accomplices fled the scene. They stole an automobile from a parking lot to effect their escape. A Texas Highway Patrol officer, noticing the car parked on the side of the highway, ran a computer check on the vehicle. Learning that it was a stolen car, he arrested the defendant and his three cohorts.

We conclude that the evidence regarding defendant’s theft of the car is admissible.

ASSIGNMENT OF ERROR NO. 5

This assignment of error concerns the use of the word “murder” by Police Officer Jimmy Jeter when testifying as a State witness concerning the finding of the body. The exact question by the Assistant District Attorney and the answer of Officer Jeter was as follows: (Tr. 310)

“Q. Now, you had some other information. Did you then make any telephone calls?
“A. Yes, sir, I called Trooper Messick in Sierra Blanca, Texas. I advised him that we had a murder and that the weapon—”

Defense Counsel objected to the use of the word “murder” as prejudicial, but the trial judge overruled the objection.

Assuming that the characterization of the homicide by the officer was objectionable, we conclude that it does not constitute reversible error. First, it was not responsive to the State’s question. See State v. Jones, La., 332 So.2d 466 (1976). Second, in the light of the entire record, it did not prejudice the substantial rights of the defendant. LSA-C.Cr.P. Art. 921.

We conclude that the assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

In this assignment, defendant complains that the trial court erred in admitting a gun, a bullet, and three spent cartridges into evidence over his objection that the State failed to prove his ownership of the items or his positive relationship to the items. Thus, he argues that the State did not lay the proper foundation for the introduction of these exhibits.

The evidence discloses that:

During his inventory of the stolen vehicle, Texas Highway Patrol Officer Larry Meadors found a pistol. He noted the serial number and placed identifying marks on it. Another Texas police officer, Randall Mes-sick, testified that the defendant admitted the gun belonged to him. During the autopsy of the victim, Captain Huddleston saw a bullet removed from the body and took possession of it and later transferred it to the Northwest Crime Lab. An expert witness, Raymond Cooper, after conducting ballistic tests, testified that the bullet was fired from the pistol found by Officer Mea-dors in the stolen car in which defendant was traveling. That expert also testified that the three spent cartridges found at the scene by Captain Singleton were fired from that gun.

Moreover, defendant himself testified that, although he did not own the gun, he was in possession of the gun just prior to and after the victim was shot.

As we have stated, it is only necessary that the State show that it is more probable than not that the evidence is related to the case for its admission into evidence. Thereafter, connexity becomes a question for the jury. State v. Hunter, La., 343 So.2d 143 (1977); State v. Henderson, La., 337 So.2d 204 (1976); State v. Lisenby, La., 306 So.2d 692 (1975); State v. Roquemore, La., 292 So.2d 204 (1974).

Therefore, the trial court properly admitted the items into evidence.

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

TATE and DENNIS, JJ.,

concur, but with reservations as to the broad “flighty” language in the disposition of Assignment No. 4.


text:
    STATE of Louisiana v. Ronald SMITH.
    No. 59806.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

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

Ronald Smith was indicted by the grand jury for the Parish of Orleans for the crime of first degree murder in violation of La. R.S. 14:30. After trial by jury, he was found guilty as charged and was sentenced to death. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

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

After defendant was sentenced in this matter, the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), held unconstitutional Louisiana’s mandatory death sentence for first degree murder. In accordance with that decision, this court has vacated death sentences in first degree murder cases but, when no other reversible error has been found, we have remanded the cases to the trial court for resentencing of defendants to the most severe valid penalty established by the legislature for criminal homicide at the time of the offense. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Clark, 340 So.2d 208 (La.1976). In the instant case, the crime was committed on January 25, 1974. The most severe valid penalty for criminal homicide applicable on that date was the penalty for second degree murder, life imprisonment at hard labor without eligibility for parole, probation or suspension of sentence for a period of twenty years. Accordingly, even though we affirm the conviction, we vacate and set aside the imposition of the death penalty and remand the case to the trial court for resen-tencing.

DECREE

For the reasons assigned, defendant’s conviction is affirmed, but the death sentence imposed on him is annulled and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for .a period of twenty years.

      . Defendant has neither briefed nor argued Assignment of Error No. 2. Therefore, we consider this assignment of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Herman LEWIS.
    No. 59807.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Stephen R. Perez, Chalmette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. Andry, III, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On June 3, 1973 an armed robbery was committed at a Burger King restaurant in St. Bernard Parish. The defendant, Herman Lewis, was arrested and charged with the offense, La.R.S. 14:64. Following a trial by jury, the defendant was found guilty as charged and sentenced to serve twelve years at hard labor.

On appeal defendant relies upon ten assignments of error for reversal of his conviction and sentence. However, Assignments of Error Nos. 1, 3, 4, 5, 6, 7, 8, 9 and 10 have neither been briefed nor argued and are thus considered abandoned. State v. Phillips, 337 So.2d 1157 (La.1976).

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in ruling that Sergeant Steven Lidell, of the Louisiana State Police crime laboratory, was qualified to give expert testimony in the field of fingerprint identification and comparison. Defendant urges that the record is devoid of facts which would justify the ruling of the trial judge.

The testimony reflects that, at the time of trial, Sergeant Lidell had been employed as a state police officer for fourteen years. He had been assigned to the crime lab for approximately ten years. During the first seven years with the crime lab he was engaged primarily in identifying fingerprint cards under the supervision of two fingerprint experts. His last three years with the lab had been devoted exclusively to casework in the field of fingerprint identification, analysis and comparison. He attended several seminars at LSU dealing with scientific investigation techniques, and he testified that fingerprint identification was one of the subjects included in the curriculum. He had regularly consulted FBI publications on fingerprinting and had read several books on the subject. Additionally, he had been accepted as a qualified expert in the field of fingerprint identification and comparison by district courts in several other parishes.

La.R.S. 15:466 provides the test for qualification of an expert witness:

“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.”

The determination of the competency of an expert witness is a question of fact and the trial court’s ruling will not be disturbed on appeal in the absence of manifest error. State v. Self, No. 59,400 (La.1977); State v. Carter, 347 So.2d 236 (La.1977); State v. Roach, 338 So.2d 621 (La.1976); State v. Rogers, 324 So.2d 358 (La.1976); State v. Ledet, 298 So.2d 761 (La.1974).

The trial judge in this case found the evidence sufficient to satisfy him that Sergeant Lidell was an expert in the field of fingerprint identification. From our review of the record, we find that there was sufficient evidence to support the trial judge’s ruling and that he did not abuse his discretion in accepting the witness as an expert in this area.

Furthermore, we find no errors which are discoverable by a mere inspection of the pleadings and proceedings. La.C.Cr.P. art. 920.

The defendant’s conviction and sentence are, therefore affirmed.


author: PER CURIAM.

text:
    STATE of Louisiana v. Barry SONIAT.
    No. 59829.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Stephen R. Perez, Chalmette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. Andry, III, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Freddie Lee JONES.
    No. 59850.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Raymond L. Cannon, Asst. Indigent Defender, Parish of Madison, Tallulah, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John T. Seale, Dist. Atty., Thomas W. Bishop, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant Freddie Lee Jones was charged by bill of information with armed robbery in violation of Louisiana R.S. 14:64. After a jury trial on February 2, 1977, defendant was found guilty as charged. The trial court subsequently denied the defendant’s motion for a new trial and on March 18,1977, defendant was sentenced to forty years at hard labor without benefit of parole, probation, or suspension of sentence.

On appeal, defendant asserts six assignments of error, two of which present reversible error.

ASSIGNMENTS OF ERROR NOS. 1 and 6

Prior to the commencement of trial, on January 13, 1977, the trial court held a hearing on the defendant’s motion for a change of venue. Utilizing the procedure employed by the district court in State v. Bell, 315 So.2d 307 (La.1975), defense counsel conducted a “dry run voir dire” for the purpose of demonstrating prejudice in the community to such an extent that the accused would not.be able to obtain a fair and impartial trial in the parish where the prosecution was pending. Defendant’s counsel filed into the record copies of the Madison Parish Journal and the Monroe Morning World containing accounts of the armed robbery. The Madison Parish newspaper included a front-page photograph which depicted defendant in handcuffs, flanked by two sheriff’s deputies.

At the “dry run voir dire,” the trial judge initially limited defense counsel’s interrogation of the witnesses to the question of whether the prospective jurors believed that they would be able to give the defendant a fair trial. Defense counsel objected, noting that our decision in Bell allowed a wider range of questioning to determine whether community sentiment had become so prejudiced against the defendant that he would be unable to obtain a fair trial. At that point, defense counsel supplied the court with the citation to Bell and read at some length from the opinion.

While the trial judge may have altered her ruling to allow a wider range of questioning after her reading of Bell, it is impossible to ascertain this fact from the record before us. Of the five witnesses called by defense counsel at the hearing on the motion for change of venue, the testimony of only one is reproduced completely in the record. The testimony of the second witness is reproduced only in part, and the testimony of the last three witnesses is entirely missing due to a malfunction in the recording equipment used by the trial court.

Article 843 of the Louisiana Code of Criminal Procedure provides:

“In felony cases, and on motion of the court, the state, or the defendant in misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.”

The official revision comments to the article indicate that the legislative intent was to effectuate the constitutional guarantee of an appeal in felony cases based upon a review of the full record in the proceedings. Article I, § 19 of the Louisiana Constitution of 1974 provides:

“No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”

In State v. Ford, 338 So.2d 107 (La.1976), this Court considered the proper remedy to be applied in a case in which the appellate record is incomplete through no fault of defendant or his counsel. In that case, the court reporter failed to record the testimony of four state witnesses, the voir dire examination of prospective jurors, and the opening statement of the prosecution. This Court reversed the defendant’s conviction, stating:

“Our Court has at least twice reversed convictions because of infirmities in the record available to the Court for review. In State v. Bizette, 334 So.2d 392 (La.1976), we remanded a case for new trial when the recording equipment used at the trial malfunctioned, and we were unable to adequately review the trial court’s denial of defendant’s motion for acquittal. Likewise, in the case of State v. Rooney, 187 La. 256, 257, 174 So. 348 (1937), where both parties entered a joint motion to have the verdict annulled and the case remanded, we reversed defendant’s conviction because of an incomplete record, stating:
‘the transcript of the testimony taken in relation to the bills of exception reserved by the defendant is so defective and in such condition that it is impossible to present the case intelligently on appeal. Hence it appears to be in the interest of justice that the verdict and sentence should be set aside and the case remanded for a new trial.’
“In Louisiana, as in the federal courts, an appeal from a felony conviction is an absolute right. La.Const. art. VII, § 10 (1921); La.Const. art. V, § 5(D)(2) (1974); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Without a complete record from which a transcript for appeal may be prepared, a defendant’s right of appellate review is rendered meaningless. A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant’s conviction. But where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully-recorded trial.” (Footnote omitted). 338 So.2d at 109-110.

We do not believe that the missing portion of the hearing on the motion for change of venue may be properly described as an “inconsequential omission.” The motion for change of venue was strenuously urged by the defendant who argued that a fair trial could not be held in the aftermath of recent and substantial pretrial publicity in a small community. It is impossible for us to ascertain from the record before us whether the trial judge allowed a proper range of examination to determine the existence of any community prejudice or whether the evidence supports defendant’s contention that the motion for a change of venue was improperly denied.

The situation before us is somewhat analogous to the problem which confronted this Court in State v. Bell, supra. There, we reversed the defendants’ convictions because the trial court refused to allow sufficient inquiry by defense counsel into the question of community prejudice. In that case, it was impossible for this Court to determine the merits of the defendants’ motion for change of venue because of the very limited inquiry allowed at the hearing on the motion. In the instant case a substantial omission from the record caused by a malfunction of the trial court’s recording equipment makes it impossible for us to review the pertinent evidence to determine whether a change of venue should have been granted. Moreover, the judgment and sentence cannot stand because they subject the defendant to imprisonment without the right to judicial review based upon a complete record of all evidence upon which the judgment is based. La.Const. of 1974, art. I, § 19.

Accordingly, defendant’s conviction and sentence are reversed and the case is remanded to the district court for a new trial.

SUMMERS, J., concurs in result.