author: BOARDMAN, Chief Judge.

text:
    Joyce MAINE, Plaintiff, v. Jerry Wayne HYDE, and Manchester Insurance Company, Defendants.
    No. 77-956.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1977.
    Rehearing Denied Nov. 14, 1977.

      Ronald H. Schnell of Carr & Schnell, St. Petersburg, for plaintiff.
    E. Robert Miller, Jr. of Miller and McKendree, Tampa, for defendants.
   BOARDMAN, Chief Judge.

The Sixth Judicial Circuit has certified a question to this court pursuant to Fla.App. Rule 4.6(a) pertaining to stacking of automobile liability coverage. The question submitted is:

When the contract of liability insurance insures two separate automobiles, a separate premium for the bodily injury liability is charged for each automobile, [and] one of the two automobiles is involved in a collision while being operated negligently by the named insured in the policy causing bodily injury to one person, . . . is the amount of coverage provided by said policy available to Plaintiff herein for bodily injury the [limits applicable to the automobile involved in the collision, a 1966 Ford Galaxy] . . . or is the coverage [applicable to both automobiles] stacked?

Under the terms of the insurance policy issued to defendant, Jerry Wayne Hyde, by the Manchester Insurance & Indemnity Company, the carrier agreed to

pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of the bodily injury, sickness, or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.

The declaration sheet which listed the 1966 Ford Galaxy involved in the accident stated that:

The insurance afforded is only with respect to such and so many of the following coverages as are indicated by specific premium charge or charges. The limit of the company’s liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto. .

The limits were shown as $10,000 each person and $20,000 each accident. An amendment to the declaration sheet provided additional charge for a second automobile described as a 1964 Ford 2-door owned by Hyde “for the amount of insurance designated below” which was $10,000 each person and $20,000 each accident.

The policy contained a typical separability clause:

When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each. .

Plaintiff argues that the separability clause is void and that the maximum coverage afforded by the policy is the total of the limits of the bodily injury liability applicable to both described automobiles. The cases relied on by plaintiff permit stacking of uninsured motorist protection based on the payment of a separate premium for each coverage stacked and the peculiar nature of an uninsured motorist. See, e. g., Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1974). We think the unambiguous language of the separability clause clearly limits the insurance carrier’s liability to $10,000 for each person injured and $20,000 for each accident. Moreover, we are not persuaded that the rationale for allowing stacking of uninsured motorist coverage should be applied to liability coverage. Unlike liability coverage, uninsured motorist coverage attaches to the person insured under the policy without consideration of the automobile involved in the accident driven by the insured.

We agree with the view expressed by the Third District Court of Appeal, which previously addressed this issue in Gibbons v. Shockley, 341 So.2d 260 (Fla. 3d DCA 1977). There the court said that it could find no case or legal reasoning to support the plaintiffs’ contention that they should be allowed to stack the tortfeasor’s liability coverage. The court relied upon Greer v. Associated Indemnity Corp., 371 F.2d 29 (5th Cir. 1967), which originated in the Middle District of Florida and involved the same legal issue. Several other jurisdictions have answered the question certified to this court, and the clear trend of the law is to disallow stacking of a tortfeasor named insured’s liability insurance coverage for the benefit of an injured third party. See Annot., 37 A.L. R.3d 1263 (1971, Supp.1976).

We agree with the reasoning of the above-mentioned opinions and therefore answer the certified question as follows: When an insurance contract insures two automobiles, with a separate premium for bodily injury liability being charged for each, and the operator of one of the automobiles is at fault in an accident, the injured third party cannot stack the liability coverage.

Therefore, Manchester Insurance Company’s personal injury liability is limited to $10,000.

GRIMES and SCHEB, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Warren HARRIS Jr.
    No. 60664.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   PER CURIAM.

Writ recalled. We cannot conclude at this stage that the trial judge erred in determining that severance is not required to assure a fair determination of defendant’s guilt or innocence of each offense.

TATE and DENNIS, JJ., dissent.


author: DIXON, J., CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Autry Lee JONES v. The Hon. Judge Luther F. COLE, 19th Judicial District Court.
    No. 60192.
    Supreme Court of Louisiana.
    Sept. 28, 1977.
    In re: Autry Lee Jones applying for Writ of Mandamus
    Writ denied. Plaintiff’s request for a trial date is premature in view of the fact that he has not complied with the pretrial procedure contained in Rule VII of the Rules of the 19th Judicial District Court.
   DIXON, J.,

is of the opinion the writ should be granted and a trial date ordered fixed. A rule which requires a pre-trial conference before a case can be fixed for trial may be contrary to the intent and purpose of C.C.P. 1551 & 1571.

CALOGERO, J.,

is of the opinion writ should be granted.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Jimmy B. TROSCLAIR.
    No. 59315.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      Rhett M. Powers, Livingston & Powers, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Director, Research and Appeals Div., for plaintiff-appellee.
   SANDERS, Chief Justice.

A grand jury indicted Jimmy Trosclair with armed robbery, a violation of LSA-R.S. 14:64. A jury found defendant guilty as charged. The court sentenced him to twenty years at hard labor. In appealing his conviction and sentence, defendant relies upon five assignments of error.

The context facts are that:

On November 19, 1974, Trosclair, armed with a shotgun, robbed Emmett Copeland of $18, in the presence of Copeland’s girl friend, Maxine Clouatre.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the trial judge erred in failing to grant a mistrial when the prosecutor made the following comment upon witness, Maxine Clouatre’s, testimony:

“Your Honor, at this time both of the witnesses, this witness was under the gun and anything — ” (Tr. p. 81.)

In support, defendant urges LSA-C.Cr.P. Art. 770(1) and 771(1) alternatively.

Maxine Clouatre, who was present during the robbery of Copeland, testified:

“I really didn’t see it [the shotgun] until he approached right to the car and he raised the shotgun and I sort of suspected something was going on. I told Emmett, I said, ‘Something is going on.’ I says, ‘I got a bad bad feeling.’ I said, ‘I’m never wrong when I get these feelings.’ I said, ‘You got a pencil, write down the license number.’ Or something. He says, ‘Well, I ain’t got no pencil.’ ” (Tr. p. 79.)

Defense counsel objected to her testifying to what Emmett Copeland said on the basis of hearsay. Thereafter, the prosecutor, arguing res gestae, stated that Mrs. Clouatre was “under the gun” at the time Copeland made the statement to her. Defense counsel then objected to the prosecutor’s statement. The trial judge immediately admonished the jury to disregard the statement.

Any prejudice which resulted from the prosecutor’s statement that Mrs. Clouatre was under the gun at the time Copeland made his statement to her was corrected. Following his admonition, the judge asked the witness:

“Was the defendant present when these things were being said, was Mr. Trosclair there, was he present?”

Mrs. Clouatre replied:

“No, he wasn’t there. He was out [outside of the car in which she and Copeland were sitting]. He was coming to the car. He was approaching us.”

Therefore, the State properly argued that Copeland’s statement to her was not subject to defendant’s hearsay objection as it formed part of the res gestae of the robbery. His argument that Mrs. Clouatre was “under the gun” was not improper since it described the situation at the scene of the robbery.

Regardless, the prosecutor’s statement does not fall within the purview of LSA-C. Cr.P. Art. 770(1), requiring a mistrial, as it did not refer to “[r]ace, religion, color or national origin.”

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Herein defendant argues that the trial judge erred in admitting a shotgun into evidence, as it was not properly identified as the one used in the robbery.

Before introducing the shotgun into evidence, the State asked Mrs. Clouatre, an eyewitness to the robbery, “Is that the gun?” She replied, “Yes, that’s the gun.” (Tr. p. 88.)

Mrs. Clouatre unqualifiedly identified the gun as the one used in the armed robbery. Once a witness identified the object sought to be introduced, it is properly admitted. Thereafter, connexity is to be determined by the jury. 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).

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Herein defendant alleges that the trial judge erroneously commented on the testimony of witnesses Anthony Ditcharo and Maxine Clouatre. LSA-C.Cr.P. Art. 772. Defendant argues that the comments prevented the witnesses from testifying properly.

Through the testimony of its witness, Anthony Ditcharo, defense counsel attempted to impeach Mrs. Clouatre’s general reputation in the community. The State objected to Ditcharo’s testimony regarding particular acts, vices, or courses of conduct, as prohibited by LSA-R.S. 15:491. After sustaining the State’s objection, the court instructed the defense that the requisite foundation would have to be laid before the witness could testify to Mrs. Clouatre’s general reputation in the community. In attempting to lay the foundation, defense counsel elicited the following testimony:

“Q. Did you know other people in the community where she lived that knew her?
“A. In the community? Well, where we was staying at, I never knew nobody there hardly.
“Q. I mean places you frequented, the community means any place she hung out, worked in or where you stayed.
“A. The only place I ever went with her was bars, you know.”
“Q. Did [the] manager of any of these places know her?
“A. Yes, sir.
“Q. What was their opinion of her, what did they think of her?”
“THE STATE:
I object at this time, there’s been no foundation laid to these people, no matter who they were, they haven’t been established who they are or that they knew her generally in the community at the time. Counsel has laid a foundation regarding a specific isolated instance.
“THE COURT:
I agree. He testified or, you heard his testimony, I don’t want to repeat anything. I don’t think you’ve laid the proper foundation at this time. Objection is sustained.
“Q. Do you know any specific manager of any, like the Silver Dollar or any other lounges you mentioned that knew this Mrs. Maxine Clouatre?
“A. Yeah, Jack Gassenberger, he owns the Silver Dollar.
“THE COURT:
It’s not specific people that knew her, it’s generally, that’s the point.
“Q. Well, generally speaking, the people that you knew that knew her, what was their opinion of her?
“THE COURT:
Just a minute.
“THE STATE:
Your Honor, I’ll voice my same objection. We haven’t established the people that he knew who knew her.
“THE DEFENSE:
He just named one.
“THE STATE:
One, we’re talking about a community, we’re talking about a general reputation in the community.
“THE DEFENSE:
“Q. Can you name some other people who knew her?
“A. Ralph Gros.
“Q. Where does Ralph Gros work?
“A. Well, he don’t work. He was living with her sister.
“Q. Un-huh. All right, anybody else can you think of?
“A. Henry, Henry Duffourc, and let me see, Cuccia, Wilma Trosclair.
“Q. And to your knowledge what did these people think of Maxine Cloua-tre?
“THE STATE:
Your Honor there’s been no foundation that these people have ever even relayed the opinion of this witness of what they knew of Maxine Clouatre. He’s asking him now to draw a conclusion from something that is not even in evidence. There’s no predicate laid that ever told him anything about her.
“THE DEFENSE:
I withdraw my question and ask another one.
“THE DEFENSE:
“Q. Have you ever discussed Maxine Clouatre with these people?
“A. Why one or two of them, one of them, she bet—
“THE COURT:
Don’t say, just answer the question he asked.
“THE WITNESS:
Yeah.
“THE DEFENSE:
“Q. And what they state to you?
“A. Well—
“THE STATE:
Your Honor, I object again the same objection.
“THE COURT:
One or two people is not enough to establish a general reputation in the community. Court maintains the objection.” (Tr. pp. 188-191.)

In State v. Corbin, La., 285 So.2d 234 (1973), we discussed impeachment of a witness premised upon his reputation in a specific, limited group. Therein we stated:

“This is not permissible. Credibility of a witness may be attacked generally, by showing that his general reputation for truth or moral character is bad. La.R.S. 15:490. The inquiry, however, must be limited to general reputation, and cannot go into particular acts, vices or courses of conduct. La.R.S. 15:491. What is called for in such cases is the opinion of the community, and not the witness. It is elementary that the individual opinion of the impeaching witness is not admissible, either as a basis for his estimate of the truth and veracity of the witness sought to be discredited, or as proof of the general reputation of the witness whose credibility is attacked. State v. Foster, 153 La. 154, 95 So. 536 (1923). As the trial judge observed, ‘reputation is not established by an inquiry as to a person’s standing within a certain segment or circle of the population but can be established only by reputation in the community at large.’ ”

The trial court judge properly interrupted the direct examination of the witness during the defendant’s attempt to lay a foundation for introduction of evidence regarding Mrs. Clouatre’s reputation and instructing the witness not to answer a question to which the prosecutor had objections. Evidence of Mrs. Clouatre’s reputation among a small group, bar owners, is not admissible. State v. Corbin, supra.

Moreover, the trial judge is given wide discretion in controlling the examination of witnesses. LSA-R.S. 15:275. Unless an abuse of this discretion is shown, a conviction will not be reversed. State v. Kaufman, La., 331 So.2d 16 (1976); State v. Peters, La., 302 So.2d 888 (1974).

Defendant also objected to the judge’s instruction to prosecution witness, Maxine Clouatre, not to answer a question propounded by defense counsel concerning her possible violation of the sequestration rule. The trial court judge interrupted the witness to ask all counsel whether they desired to have the matter discussed in the presence of the jury. Defense counsel preferred to have the jury removed. Defendant cannot now be heard to complain of the judge’s interruption in light of his agreement to remove the jury.

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In Assignments of Error Nos. 4 and 5, defendant contends that the trial judge erred in refusing to order a mistrial, grant a new trial or admonish the jury to disregard a reference to another crime made by the prosecution witness, Mrs. Clouatre. The objectionable reference to another crime occurred as follows:

“DEFENSE COUNSEL:
“Q. Were you robbed that day, Mrs.
Clouatre?
“A. No, I wasn’t. I was raped.
“Q. You were raped?
“A. Correct.
“Q. That’s a—”

At this point, defense counsel requested a conference; the trial judge and all counsel removed to chambers. Defendant argues that Mrs. Clouatre’s reference to the rape was so prejudicial that he could not receive a fair trial.

Defense counsel complains that the witness’s answer was unresponsive to his question. We, however, discredit his argument because immediately thereafter defense counsel specifically asked the witness if she was raped.

Moreover, this Court has previously allowed the admission in armed robbery prosecutions of testimony regarding a rape committed during the course of the robbery. State v. Curry, La., 325 S.o.2d 598 (1976); State v. O’Conner, La., 320 So.2d 188 (1975); State v. Hatch, La., 305 So.2d 497 (1974).

It is especially significant here that the witness never testified who raped her. She testified that Wayne Clark was directly involved in the robbery. Clark, a passenger in the witness’s automobile, directed her to follow a car driven by defendant Trosclair into a vacant lot and park behind Trosclair’s car. Trosclair and Clark then pulled guns and robbed Emmett Copeland.

Moreover, contrary to defendant’s contention that no admonition was given, the trial judge’s Per Curiam indicates that an admonition was given. Defendant’s motion for a new trial refers to an admonition being given. Although the trial transcript does not reflect an admonition, we accept the recital of the Per Curiam, since it is supported by the defense pleadings.

Finding no abuse of discretion in the trial court judge’s refusal to grant a mistrial or a new trial, we dismiss defendant’s fourth and fifth assignments as having no merit.

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

CALOGERO and DENNIS, JJ., concur.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Robert Earl YATES.
    No. 59350.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      John A. Files, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., William L. Goode, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

On June 8, 1976 the grand jury of Caddo Parish indicted Robert Earl Yates for the crime of aggravated rape. La.Rev.Stat. 14:42. The charge was later amended to attempted aggravated rape. A jury of twelve unanimously found Yates guilty as charged, and he was sentenced to serve twenty years at hard labor. On this appeal he assigns thirteen errors for reversal of his conviction and sentence.

Assignment 1

Voir dire examination of the prospective jurors began at approximately eleven o’clock on the first day of trial and continued until noon. Court was then recessed for lunch until two o’clock. When Court reconvened after lunch, before the jury returned, defense counsel moved for a mistrial. He asserted that defendant wore prison clothes during the voir dire examination and these clothes were visible to all members of the jury. Relying upon the decision in Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), cert. denied, 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971), counsel urged that defendant’s appearance in prison garb was a violation of due process which destroyed the presumption of innocence to which defendant was entitled.

It was then pointed out by the prosecutor that during the voir dire examination that morning no objection was made that defendant was attired in prison garb. It was also noted that no recess was requested to change into civilian garb, and that defendant had, since the noon recess, changed into civilian clothes, precluding any subsequent cause for complaint.

In addition, photographs taken on a previous occasion were introduced depicting defendant in the same clothes worn by him during the morning court session. These photographs disclosed that there were no markings on his clothes which appeared to be an ordinary denim shirt and trousers not unlike the civilian clothes he then wore.

Notwithstanding this showing, defense counsel persisted, claiming that during the voir dire examination defendant’s shoes were stamped with the large letters: “C.C. I.”, identifying them as prison issue. Although he had not noticed these markings on defendant’s shoes, the shoes having been changed during the noon recess, the trial judge was of the opinion that it would have been extremely difficult for any jurymen to see the markings. Defendant was in the dock, or seated virtually the whole time, and the jury was not in a position to see his shoes.

It was also noted by the trial judge that as a matter of policy the sheriff and officers at the prison allow defendants to appear at trial in the attire of their choice. Furthermore, the jail uniform was orange in contrast to the blue denim clothes worn by defendant.

In Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), cert. denied, 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971), no issue was raised concerning the nature of the defendant’s attire at the trial. He was tried in his prison garb, described as a white T-shirt with “Harris County Jail” stamped on the front and dungarees with the same inscription on front and back.

In the instant case the record preponderates to the effect that defendant’s clothes were not recognizable by the judge or jury as prison garb. The cases are therefore distinguishable on the facts. The trial judge properly denied defendant’s motion for a mistrial based upon this Court’s decision in State v. Thomas, 325 So.2d 593 (La.1976), where in a similar situation the Court recognized that an accused may insist that he be brought into court with the appearance, dignity and self-respect of a free and innocent man. However, one asserting the deprivation of such right must establish a deprivation by clear and convincing evidence. State v. Kinchen, 290 So.2d 860 (La.1974) and State v. Tennant, 262 La. 941, 265 So.2d 230 (1972). That burden has not been discharged here.

This assignment is without merit.

Assignment 2

Testimony at the trial disclosed that defendant joined the victim and her boy friend, Tommy Coker, in the early morning hours of September 6, 1975 at the Cotton Bowl Market in Shreveport. They set out together in Coker’s car to a bar to buy beer. Finding the bar closed, defendant asked them for a ride home and directed Coker into the driveway of a deserted house in a sparsely settled residential neighborhood.

When Coker stopped the car, defendant reached across the victim, who was seated in the front seat between them, and struck Coker in the eye, thereafter pulling the victim from the car. A fight then ensued in which defendant overcame Coker and forced him away. Defendant then dragged the victim into a nearby wooded area and there forcefully attempted to rape her.

In the meantime Coker had summoned the police, and the first police car to arrive spotted defendant leading the victim down the road. As the patrol car approached, defendant fled. He was apprehended in Georgia nine months later.

After defendant was apprehended in Georgia, where he was first notified of his Miranda rights, he was returned to Shreveport, where he was again advised of his rights and interrogated by Detective Bill Strange on May 7, 1976. He gave a voluntary statement which was recorded and later transcribed and signed by him. In that statement he outlined his version of the meeting and an attempt by Coker and the victim to rob him. He said he paid Coker two dollars for a ride home, but Coker drove him to the driveway of the deserted house and, with the victim’s help, attempted to rob him. According to the defendant he fought them in self-defense and fled. The interrogation continued:

“DET.: Ok. Ah, ROBERT, you ah stated these people attempted to rob you ah can you tell me why you didn’t report this to the police?
ROBERT: Don’t do me no good to report nothing to the police.
DET.: You want to explain that, ROBERT?
ROBERT: Well, it just don’t do me no good. I got a pretty bad record down here and they don’t believe nothing I say.
DET.: Ok. Where did you ah after you had gone home, how long did you stay in the city?
ROBERT: Up until I found out the police was looking for me for rape charge on the night that I tried to get robbed.
DET.: What did you do then?
ROBERT: Well that’s when I hauled out.
DET.: Ok. Where did you go, ROBERT?
ROBERT: Well I went back to ah GEORGIA. I always, everytime they start looking for me I take off.
DET.: Ok and you were arrested in GEORGIA?
ROBERT: Right.

On voir dire examination of prospective jurors defense counsel repeatedly asked wether a previous conviction of a person on trial would influence their determination of guilt or innocence in the case at hand. At least fifteen questions touched upon this subject. In some instances a specific reference was made to whether a previous conviction of the defendant before the bar would influence the prospective juror’s determination of guilt or innocence.

Later, during the trial, after laying the predicate to establish the free and voluntary character of the quoted statement, the State offered the recording and the transcribed version into evidence. At that time defendant took the stand in rebuttal and denied his signature to the notice and waiver of the Miranda rights forms which were executed in Georgia and upon arrival at the Shreveport police station. He acknowledged on cross-examination, however, that when he gave the statement he understood and waived his rights.

Although defendant contends that the statement was wholly exculpatory with the exception of the inadmissible evidence of his bad character, the contention is without merit. Obviously defendant intended to exculpate himself; however, by his own statement he was in the victim’s company at the scene of the crime with a rather implausible account of the incident. Coker was twenty years old and his young female companion was fifteen. Coker was 5 feet, 10 inches tall and weighed 135 pounds. He was sickly and asthmatic. The girl was 5 feet, 3 inches tall and weighed 100 pounds. They could not be considered formidable opponents of defendant, who was 26 years of age, six feet tall and weighed 180 pounds. It is highly unlikely that they ran him off into the night as he stated. The conclusion, then, is that the statement must be regarded as an inculpatory statement governed by the rules relating to the admissibility of confessions. It is the content of the statement which is at issue, not its voluntary character.

Admission of the statement was objected to because the language was inflammatory and prejudicial in that it tended to show defendant’s bad character, and he claimed it contained prohibited evidence of his arrest.

In considering the objection the trial judge observed, “Of course, the jury has been voir dired about the fact that the man has a previous conviction. They obviously know that by now.” Defense counsel agreed: “They know of a previous conviction, yes, but they don’t know about the other language.”

Defense counsel’s objections were aimed at certain utterances in the recorded statement, utterances relating to the circumstances surrounding defendant’s claim that Coker and the young girl attempted to rob him. These are:

“That’s when he tried to hit me with the co cola bottle and that’s when I knocked him on his ass.”
“I knocked him down and then she hit me in the back with a pipe and I slapped her in some kind of ditch or something another.”
“Well, I hauled my butt then.”
When asked by the Detective, “Okay, Robert, you stated these people attempted to rob you. Can you tell me why you didn’t report this to the police?”, defendant replied: “Don’t do me no good to report nothing to the police.”
Detective: “You want to explain that, Robert?”
Defendant: “Well, it just don’t do me no good. I got a pretty bad record down here and they don’t believe nothing I say.”
Detective: “Okay . . . how long did you stay in the city?”
Defendant: “Up until I found out the police were looking for me for rape charge on the night that I tried to get robbed.”
Detective: “Okay. Where did you go, Robert?”
Defendant: “Well, I went back to Georgia. I always, everytime they start looking for me I take off.”
Detective: “Okay. And you were arrested in Georgia?”
Defendant: “Right.”

In brief to this Court defendant’s objections are based upon the propositions that 1) evidence which has no tendency to prove some material connection with the offense charged, but merely tends to show that the defendant is a criminal, generally should be excluded, La.Rev.Stat. 15:481; and 2) the credibility of a witness may not be impeached by asking whether he has been arrested. La.Rev.Stat. 15:495.

While the language relating to the affray between defendant, Coker, and the victim is crude, it is not such that it would unduly inflame or prejudice today’s jury.

References to the fact that the police were “looking” for him and that he “went back to Georgia” and that he was “arrested” in Georgia are all self-evident facts, necessary incidents of the case itself as they would be in any other case. Just as the law does not prohibit the State from showing that the defendant on trial was arrested or where he was arrested, it does not offend legality to prove that the police were looking for this defendant after the date of this offense. There is, moreover, nothing in defendant’s statement which would lead the jury to conclude that the arrest mentioned was other than the arrest involved in the instant case.

Insofar as the reference to defendant’s “bad record” is concerned, defense counsel, by repeated mention of prior convictions and his concession that the jury knew of a previous conviction, establishes that defendant did in fact have a “bad record” as a result of that conviction. To introduce defendant’s own statement to the same effect neither offends the law nor adds to the prejudice already established by the jury’s knowledge of defendant’s previous conviction.

Assignments 3 and 4

These assignments were neither briefed nor argued and are considered abandoned.

Assignments 5 through 12

A violation of the defendant’s due process right is claimed because of the State’s refusal to order production of the criminal record of the victim and her father and mother. In addition defendant moved to discover “any criminal records” of witnesses; a list of all state witnesses and their addresses; statements of defendant; photographs, drawings or charts made and to be used by the State; results of scientific tests; papers, objects or real evidence in the possession of the police or District Attorney; and the defendant’s own criminal records.

At the time of this trial in 1976 only limited discovery was permitted in this State. Defendant’s statement was furnished to defense counsel in advance of trial; he could not require the State to produce the other information and evidence sought to be discovered.

“ ‘As a general proposition the State is not required to produce the physical evidence it intends to use at the trial. Exceptions to this rule have recognized the right of a defendant to view and copy his written confession in the possession of the prosecutor, State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); to obtain production of a taped confession, State v. Hall, 253 La. 425, 218 So.2d 320 (1969); or some of the confiscated narcotic evidence in a narcotic prosecution, State v. Migliore, 261 La. 722, 260 So.2d 682 (1970). When proper allegations support a finding that the defendant acted in self-defense and specifies that the weapon sought was used by the alleged victim against the defendant, supporting a claim of self-defense, we have required production of the weapon by the State. State v. Woodruff, 281 So.2d 95 (La.1973).’ State v. Collins, 308 So.2d 263 (La.1975).” State v. Brumfield, 329 So.2d 181, 185 (1976).
These assignments are without merit.

Assignment IS

According to the defendant, the trial judge erred in receiving prejudicial hearsay testimony as res gestae. The testimony at issue is alleged to be that of the officers near the scene of the crime. Defendant asserts that they testified to statements made by the victim. These statements, it is contended, were prejudicial hearsay testimony improperly admitted as res gestae.

Although no reference to the page of the transcript is furnished in the assignment of error as the rules of this court require (La. Sup.Ct. Rules 1, § 6(d); 7, § 6), a search of the record discloses that a patrolman who questioned the victim shortly after the crime was asked by the prosecutor, “What did she say?” Defense counsel objected that the question called for hearsay. Despite the prosecutor’s argument that the victim’s declarations were part of the res gestae, the court sustained the objection. Thereafter no objection was made to questions propounded by the prosecutor.

This assignment has no merit.

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

CALOGERO, J., concurs.

      . La.Rev.Stat. 15:481:
      “The state is permitted to introduce testimony of the bad character of the accused only in rebuttal of the evidence introduced by him to show good character.”

      . La.Rev.Stat. 15:495:
      “Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”


text:
    STATE of Louisiana v. Donald G. BROOKS.
    No. 59442.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      Truly W. McDaniel, New Orleans, 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.
   SANDERS, Chief Justice.

The grand jury indicted the defendant, Donald G. Brooks, with the second degree murder and armed robbery of Rosario Bro-cato, violations of LSA-R.S. 14:30.1 and 14:64. A unanimous jury found him guilty as charged. The court sentenced him to life imprisonment without benefit of parole, probation or suspension of sentence for forty years on the second degree murder conviction and ten years at hard labor on the armed robbery conviction, running consecutively.

The defendant appeals. He relies on three assignments of error for reversal of his convictions and sentences.

We adduce the following context facts:
Rosario Broeato, the seventy-eight year old victim, was a street produce vendor. While he was making his rounds one morning, the defendant and an accomplice grabbed Mr. Broeato by the arms. When he struggled, they shot him in the face. After he fell to the ground, the defendant emptied his pockets and stole his money. Later that evening, Mr. Broeato died.

ASSIGNMENT OF ERROR NO. 1

The defense contends that the court erroneously denied his motion to quash in which he attacked the constitutionality of our second degree murder statute, LSA-R.S. 14:30.1. He argues that the mandatory imposition of a life sentence precludes consideration of all particular and mitigating factors, and, therefore, violates Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and his state constitutional guarantee against cruel and unusual punishment, Louisiana Constitution Article 1, § 20 (1974).

In State v. Cook, La., 345 So.2d 29 (1977), this Court rejected the identical argument. Therein we stated:

“In Roberts v. State, supra, the United States Supreme Court, without disturbing Roberts’ conviction, ruled unconstitutional the mandatory death penalty provision of Louisiana’s first degree murder statute. However, in a companion case to Roberts, Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the Court made it clear that its rulings with respect to mandatory death penalty statutes rested squarely on the predicate that the death penalty is qualitatively different from a sentence of imprisonment, however long, thereby requiring a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. With respect to statutes not requiring capital punishment, the Court indicated that mandatory sentencing provisions are not constitutionally prohibited. We find no merit in defendant’s contention that the mandatory penalty prescribed by La.R.S. 14:30.1 violates the federal constitution. Nor are we persuaded that defendant’s due process rights under our state constitution have been infringed. Furthermore, we note that this court has specifically upheld the penalty mandated in our second degree murder statute as not constituting cruel and unusual punishment. State v. Anderson, 315 So.2d 266 (La.1975).”
This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

The defense filed a motion to suppress identifications made of himself and of a shirt he wore during the commission of the crimes which the trial judge denied. He advances two arguments to support his contention that the ruling was improper.

Initially, he alleges that the photographic lineup was impermissibly suggestive in that “. . . every other member of the photographic lineup [had] extensive growths of facial hair on various parts of the face.” Whereas, the defendant “. . . was the only one in the group that appeared [with] a youthful, clean-shaven face.”

In reviewing an identification procedure, we must determine whether such procedure was so unnecessarily suggestive and conducive to an irreparable mistaken identification that the defendant was denied due process of law. State v. Williams, La., 341 So.2d 370 (1976); State v. Hargrove, La., 330 So.2d 895 (1976). A trial judge’s determination on the admissibility of a photographic identification is given great weight and will not be disturbed unless a preponderance of the evidence clearly so mandates. State v. Griffin, La., 336 So.2d 791 (1976); State v. Chaney, La., 273 So.2d 259 (1973).

The detectives selected six photographs of subjects fitting the general description of the defendant. (One was of the defendant’s accomplice. However, he was not identified.) They presented these six along with a photograph of the defendant to two eye-witnesses. Although one witness made an immediate and positive identification of the defendant, the other was unable to identify him.

The seven photographs depict the following: the defendant wore a slight moustache (P.E. S-1D); one subject had a slender moustache (P.E. S-1A); another had no facial hair (P.E. S-1B); another had sparce sideburns (P.E. S-1C); another had a mous-tache, sideburns, and a goatee (P.E. S-1E); and the remaining two were not recently shaven and had distinctive moustaches (P.E. S-l, S-1F).

The trial judge found this collection of photographs to be a “fair cross-section” and “decently represented.”

We agree with the trial judge. This compilation contained photographs of men similar in appearance: they were of the same race, height, and possessed similar physical characteristics. Our inspection discloses no hint of suggestion, much less impermissive suggestion, resulting from the subjects’ facial hair. We hold that the trial judge properly denied the motion to suppress the identification of the defendant.

Further, the motion to suppress attacks Richard Lemons, an eyewitness’s, identification of the shirt the defendant wore during the commission of the offenses. He argues that the identification of the shirt was essentially a suggestive one-on-one shirt identification, and therefore, the officers should have conducted a lineup of similar shirts.

Our law is well settled as to the type of identification needed for the admission of demonstrative evidence:

“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.” State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

See State v. Forbes, La., 348 So.2d 983 (1977); State v. Collins, La., 328 So.2d 674 (1976).

Immediately after the crime, Mr. Lemons described one perpetrator as wearing a blue, long-sleeved shirt with white flowers. When the defendant was arrested he wore a shirt fitting that description. The officers obtained a search warrant and seized the shirt from the defendant’s person. An officer then placed it in a plastic bag and took it to Mr. Lemons. Mr. Lemons identified it as either the shirt worn by the offender or one similar to it. At trial, he again identified it as resembling the one the perpetrator wore. He testified that he could not conclusively identify it as the exact one worn since many of those shirts were manufactured.

We conclude that, under the well-settled Louisiana law relating to the identification of demonstrative evidence, the shirt was properly identified. Thus, the trial court correctly denied the motion to suppress the shirt.

This assignment of error is without merit,

ASSIGNMENT OF ERROR NO. 3

The defense complains of the trial court’s refusal to give his special requested jury charges. He requested instructions stating that a participant in crime cannot form the criminal intent necessary for conviction if he acts under threats, duress, or coercion.

A trial judge may refuse to give a special requested charge “ . . . if it is included in the general charge or in another special charge to be given.” LSA-C.Cr.P. Art. 807.

As requested by the State, the court’s instructions included a reading of LSA-R.S. 14:18(6), which provides:

“The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
H * * *
“(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed;”

The trial judge also read our statutes defining specific and general criminal intent. See LSA-R.S. 14:10.

A review of the instructions given satisfies us that the defense’s proposed jury charges were included in those given. Therefore, the court properly denied the defendant’s requests for special instructions.

This assignment of error is without merit.

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

      . The defendant failed to brief or argue the other ground asserted in the motion. Hence, we consider it abandoned. State v. Taylor, La., 347 So.2d 172 (1977).

      . Another ground urged in the motion, having been neither briefed nor argued, is considered abandoned. State v. Taylor, La., 347 So.2d 172 (1977).


text:
    STATE of Louisiana v. Willie SMITH, Jr.
    No. 59595.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Richard V. Burnes, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, Dist. Atty., William E. Tilley, First Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State indicted Willie Smith, Jr., for the possession of heroin with the intent to distribute, a violation of LSA-R.S. 40:966. After trial, the jury returned a responsive verdict of guilty of possession of heroin. The court sentenced defendant to nine years imprisonment. Defendant appeals his conviction and sentence, relying upon nine assignments of error. However, finding reversible error in his first assignment, we pretermit the remaining eight.

The context facts are that:

On November 16, 1974, a search warrant was issued, authorizing the search of Willie Smith’s person, car, and motel room. In executing the warrant, police stopped defendant in his car and informed him of the search warrant. The police then searched defendant’s clothing and found a matchbox containing eight packets of heroin. Within one or two minutes, Officer Parker arrived on the scene with the warrant and presented it to the defendant. After being given the matchbox containing the heroin found by his fellow officers, Parker arrested defendant and searched his person a second time. This second search produced a ninth packet of heroin. Subsequent searches of the car and the motel room yielded no additional contraband.

In his motion to suppress, defendant contends that the search warrant is invalid because the affidavit on which it issued did not contain sufficient facts warranting probable cause. The affidavit reads as follows:

“T/C Vernon Parker of the La. State Police narcotic section has on several occasions received information that Willie Smith was selling heroin in the Leesville area.
“On November 15th T/C Parker received information from a confidential reliable informant that Willie Smith departed Leesville in route to Beaumont, Texas for the purpose of obtaining a quantity of heroin and returning to Lees-ville and selling it.
“On this date T/C Parker was again contacted by this reliable informant who, stated that, Willie Smith returned to Leesville at 8:00 A.M. this date and to his knowledge had sold three hits of heroin within an hour. The reliable informant states that Smith will be holding additional heroin at this time.
“The confidential reliable informant has been reliable to T/C Parker for approximately six years and has led to the arrest and conviction of several narcotics users and sellers. The informant is also paid by T/C Parker to obtain this type of information.” (Emphasis added.)

Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonable trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Sierra, La., 338 So.2d 609 (1976); State v. Hightower, La., 272 So.2d 363 (1973). The magistrate must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Sierra, supra; State v. Holmes, 254 La. 501, 225 So.2d 1 (1969).

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court held that when a search warrant is based solely on hearsay, the affidavit must indicate some of the underlying circumstances on which the informant bases his conclusions and some of the circumstances supporting the informant’s credibility. Then, in State v. Paciera, La., 290 So.2d 681 (1974), we outlined the requisites in an affidavit, as follows:

“If we can deduce a rule from these cases, it is this: 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.1978).”

The affidavit in the present case sets forth that the informant had given prior accurate reports which led to several arrests and convictions. These facts are sufficient to establish the reliability of the unidentified informant. State v. Sierra, supra; State v. Roach, La., 322 So.2d 222 (1975); State v. Humble, La., 309 So.2d 138 (1975); State v. Paciera, supra.

In addition, the affidavit must demonstrate the reliability of the information provided by the informant. The information’s reliability may be established by (1) the informant’s personal observation, State v. Harris, La., 343 So.2d 145 (1977); State v. Culotta, La., 343 So.2d 977 (1976); State v. Paciera, supra, or (2) the recitation of the facts upon which the informant based his conclusion, State v. Sierra, supra; State v. Vince, La., 305 So.2d 916 (1974).

The supporting affidavit recites that the confidential informant told Officer Parker that Smith went to Beaumont, Texas, to purchase heroin in order to return to Leesville and sell it, and that Smith returned at 8:00 that morning and “to his knowledge” had made three heroin sales within an hour.

The affidavit does not set forth that the informant personally observed the various events reported or had direct personal knowledge of the factual allegations recited. The informant could well have been relying upon hearsay information or could have reached his own conclusion from circumstantial evidence. The affidavit does not disclose how the information was acquired. Hence, the affidavit failed to demonstrate the reliability of the information.

In State v. Humble, supra, we held that when the affidavit merely contained unsubstantiated rumors and conclusory statements, it provided no adequate basis for a magistrate’s finding of probable cause.

When questioned regarding the information given by his paid informant, the affi-ant officer was asked whether he asked the informant how he obtained the information. He replied that he did not.

“Q. Do you know, Trooper Parker, how this informant knew that Willie Smith had gone to Beaumont?
“A. No — I don’t. (Record p. 80.)
ti * * *
“Q. Did you ask this informant how he got that information (that Smith had sold the heroin after returning from Beaumont)?
“A. No — I didn’t.” (Record p. 82.)

The search warrant is fatally defective. Consequently, all evidence obtained as a result of the execution of the warrant, the nine packets of heroin found on defendant’s person, must be suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

For the reasons assigned, the conviction and sentence are reversed. The case is remanded for a new trial consistent with law and the views herein expressed.


author: MARCUS, Justice. TATE, Justice

text:
    STATE of Louisiana v. Sabrina PROGUE.
    No. 59618.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Frank E. Brown, Jr., Piper & Brown, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Sabrina Progue was charged by bill of information with the crime of attempted second degree murder. La.R.S. 14:27; La. R.S. 14:30.1. After trial by jury, defendant was found guilty of attempted manslaughter and was sentenced to serve ten years at hard labor. On appeal, defendant relies on three assignments of error for reversal of her conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in refusing to give four requested special charges to the jury and in refusing to charge the jury on the law of justification as expressed in La.R.S. 14:18(6). She further argues that the trial judge erred in his general charge to the jury by failing to instruct the jury that, in order to find defendant guilty of attempted second degree murder, the jury must conclude that the defendant had the specific intent to kill.

Defendant’s contention that the trial judge’s general charge to the jury was defective in its failure to instruct the jury with respect to the specific intent needed for attempted second degree murder is without merit. Defendant made no objection to the general charge. This court has consistently held that, absent a contemporaneous objection, a defendant may not on appeal complain of the trial judge’s charge to the jury. La.Code Crim.P. art. 841; State v. Roche, 341 So.2d 348 (La.1976); State v. Smith, 339 So.2d 829 (La.1976); State v. Charles, 326 So.2d 335 (La.1976); State v. Mitchell, 319 So.2d 357 (La.1975). Moreover, under La.Code Crim.P. art. 920, a defect in the general charge is not an error “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” State v. Mitchell, supra.

The record does not reflect that defendant requested that the trial judge charge the jury on the law of justification as expressed in La.R.S. 14:18(6). Consequently, her contention that the trial judge erred in refusing to so instruct the jury is of no merit. Moreover, defendant made no objection to the general charge.

The first of the four special charges for the jury submitted by defendant to the court provided: “That it is conceivable, that a deadly weapon may be used with a specific intent to seriously injure or frighten, rather than to attempt to murder.” As written, the special charge requires explanation that a specific intent to kill is an essential element of the crime of attempted murder. Under La.Code Crim.P. art. 807, a requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. Since the special charge required explanation, the trial judge properly refused to give it.

The second charge submitted by defendant to the court provided:

That intent need not be proved as a fact but may be inferred from the circumstances of the transaction, if the defendant is engaged in the perpetration of certain enumerated offenses, no specific intent need be established, R.S. 14:30.1, there is however, no allegation of any other offense in the bill of information filed in this case.

The trial judge’s general charge to the jury included an instruction that intent, although a question of fact, need not be proved as a fact but may be inferred from the circumstances of the transaction. Hence, the first part of the requested special charge was included in the general charge. Defendant was charged under the specific indictment form for attempted second degree murder listed in La.Code Crim.P. art. 465; therefore, it was unnecessary to set forth the various ways in which the crime could be committed under the statute. The general charge properly included the full text of the crime of second degree murder as set forth in La.R.S. 14:30.1. Hence, this portion of the requested special charge required further explanation. In sum, since the requested special charge was partly included in the general charge and partly required further explanation, it was properly refused by the trial judge. La.Code Crim.P. art. 807.

The third and fourth requested special charges provided:

That a person will not be held criminally responsible if he or she acts in self-defense from real and honest convictions as to the character of the danger, induced by reasonable evidence, though he or she may be mistaken as to the extent of the actual danger.
That in an attempted second degree murder case, the plea of justification does not place upon the accused the burden of proving it, nor change the duty of the State to prove the accused’s guilt beyond a reasonable doubt by demonstrating that the attempted second degree murder was not justifiable.

At trial, Joseph Giglio, Jr., the 68-year-old victim of the crime, testified that on the afternoon of September 14, 1976, defendant came to the grocery store which was owned and operated by him and his wife to buy some fruit and stamps. At the time, Giglio was in the store by himself; his wife was attending a meeting. About ten minutes later, defendant returned to the grocery store and purchased a candy bar and some cigarettes. Giglio denied that he touched defendant or spoke with her. Approximately fifteen minutes later, after Giglio’s wife had returned to the store from her meeting, defendant re-entered the grocery with a .22 caliber pistol in her hands. She pointed the gun with both hands at Giglio, told him and his wife that it was a “stick up” and fired one shot at close range at Giglio’s face. He was hit in the face and the bullet exited behind his ear. After the shooting, defendant turned and ran out of the store. The testimony of Mrs. Giglio corroborated that of her husband.

Defendant took the stand in her own defense and testified that on her second visit to the store, Giglio propositioned her and touched her on her “posterior.” After rejecting his advances, defendant turned to leave the store, at which time Giglio grabbed her by the shoulder tearing her dress and vowed that he would get her no matter what. Defendant ran from the store to her home and removed a .22 caliber pistol from her mother’s purse. She returned to the store where she found Giglio and his wife, pointed the gun at Giglio and shot him in the face as he reached for a jar of water. Defendant testified that, although she intended to shoot Giglio, she did not intend to kill him. She stated that, while she was really mad at Giglio, she did not shoot him for that reason, but rather because she considered that she had no choice since he had stated that he was going to get her no matter what. After the shooting, defendant ran home and returned the gun to her mother’s purse. She was arrested later that day and was questioned by Detectives Sherrill Smith and Michael Sullivan, who testified that defendant freely confessed that she shot the victim.

The third requested special charge covers the law of self-defense; the fourth requested special charge deals with the state’s burden of proof where justification is asserted as a defense.

It is well settled that, where a defendant makes a request for special instructions to the jury, they must be such as are correct under the statement of facts as disclosed by the evidence. State v. Selman, 300 So.2d 467 (La.1974), vacated in part, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976); State v. Rone, 222 La. 99, 62 So.2d 114 (1952); State v. Capaci, 179 La. 462, 154 So. 419 (1934); State v. Burch, 170 La. 812, 129 So. 212 (1930). Under La.Code Crim.P. art. 807, a special charge should be given by the court if it does not require qualification, limitation, or explanation and if it is wholly correct and pertinent.

In the instant case, no evidence existed that defendant acted in self-defense in shooting the victim. Defendant returned to the grocery store after Giglio had allegedly propositioned her earlier in the day and deliberately shot him in the face. Defendant testified that she shot him because he had stated to her on her prior visit to the store that he was going to get her no matter what. No pretense was made in her testimony or any other evidence adduced at trial that she shot defendant in self-defense. The single reference to Giglio’s reaching for a jar of water was made in her description of Giglio’s actions after she appeared in the grocery store and pointed the gun at him. Accordingly, since the third and fourth requested special charges were not correct and pertinent, the trial judge properly refused to give them. La.Code Crim.P. art. 807.

In sum, Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in denying her motion for a new trial on the grounds previously considered in Assignment of Error No. 1. For the reasons assigned therein, Assignment of Error No. 2 lacks merit..

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the sentence imposed in this case, imprisonment for ten years at hard labor, inflicts cruel, excessive, or unusual punishment in violation of La.Const. art. 1, § 20. Objection to the sentence on the ground of excessiveness was raised by defendant when the sentence was imposed.

La.Const. art. 1, § 20 provides in pertinent part:

. No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. . (Emphasis added.)

Some of the members of this court, including the author of this opinion, are of the view that this constitutional provision only gives to this court the judicial power to declare as unconstitutional laws which provide for excessive sentences rather than extending the judicial power to appellate review of sentences imposed in individual cases. Other members of the court interpret the provision as conferring upon this court constitutional authority to review sentences imposed in individual cases. However, we need not resolve this issue in the present case for, under either interpretation of the constitutional provision, the sentence imposed here is not excessive. In view of the fact that, by her own admission, defendant deliberately shot the victim in the face, the sentence of imprisonment at hard labor for ten years imposed on defendant is not excessive.

Assignment of Error No. 3 is without merit.

DECREE

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

TATE, J., concurs in part and dissents in part, and assigns reasons.

TATE, Justice

(concurring in part, dissenting in part).

The writer concurs in the conviction. He respectfully dissents from our affirmance of the imposition of the maximum sentence for the offense, which on its face appears to be excessive, under the circumstances, and was rendered without benefit of a pre-sen-tence investigation.

The defendant is undoubtedly guilty of the crime charged, attempted manslaughter, La.R.S. 14:27, 31. The maximum sentence for this crime is IOV2 years. The defendant was sentenced to ten years at hard labor.

The defendant is a 17-year-old girl, having completed her junior year at high school. She has no previous juvenile or criminal record. Her version of the incident, apparently accepted by the trial jury, is that, a few minutes earlier, the grocery store owner had sexually handled her and ripped her dress and had threatened her because she did not engage in sexual relations with him. She immediately went home and got a .22 pistol and came back and shot the store owner (a much heavier and older man) in the side of his face.

This version, of course, does not mitigate her guilt of the crime for which convicted. However, insofar as the jury verdict indicates its veracity, it might indicate — assuming no other criminal tendencies or acts— that the trial court’s sentencing discretion should have been exercised in favor of imposing less than the maximum sentence.

When the motion for a new trial was denied on January 17, defense counsel requested that the court secure a pre-sentence investigation. This involves inquiry into such sentencing factors as, La.C.Cr.P. art. 875 A: “the circumstances attending the commission of the offense, the defendant’s history of delinquency or criminality, his family situation and background, economic and employment status, education, personal habits, and other matters deemed relevant by the officer, or ordered investigated by the court.”

This request was denied. Four days later, the sentence of ten years was imposed. The defendant’s counsel objected that the sentence was “grossly disproportionate to the situation that was involved and we feel it is cruel and unusual punishment; excessive punishment.”

The conscientious trial judge apparently felt that the pre-sentence factors were not considerations for sentencing; only the crime of which convicted, was deemed relevant. In the writer’s opinion, our trial brother, although dispassionate and sincere in his belief, may not thereby have exercised the discretion in sentencing intended by the legislature.

In my view, Art. 1, Section 20, of our state constitution of 1974, imposes upon this court the duty of reviewing whether a sentence imposed by law subjects a person to excessive punishment, when (as here) the objection to excessiveness is properly raised. State v. Williams, 340 So.2d 1382, 1384 (concurring opinion) (1976).

Apparently, because the face wound might have resulted in death if the accused had aimed to kill, the trial court felt the most severe penalty was required. However, all attempted manslaughter convictions involve a jury finding that, in hot blood, the offender attempted to kill the victim. La.R.S. 14:31. Yet the legislature has entrusted to the trial court a discretion to sentence between one day and IOV2 years, or to suspend any sentence imposed.

In my opinion, therefore, at least on the face of this record, the accused has made out a prima facie case that the trial court imposed the (near) maximum sentence based upon the crime alone, without taking into consideration any mitigating or individualized circumstances. The legislature contemplated that these factors are to be considered by a trial court in the exercise of its broad discretion (0 to IOV2 years) in sentencing for this crime.

The writer is therefore of the opinion that the sentence should be set aside, and the case remanded for re-sentencing by the trial court, to be imposed after pre-sentence investigation affords the trial court information as to pertinent factors properly to be taken into consideration.

Due to the seriousness of the crime and of the injury and the possible fatal consequences of the accused’s act, imprisonment rather than probation or a suspended sentence might reasonably be indicated. However, practically all other factors relating to the accused or to her participation in the crime, as viewed by the jury verdict and possibly to be corroborated by a pre-sen-tence investigation, indicate a sentence substantially less than the maximum.

Accordingly, I respectfully dissent from our affirmance of the sentence imposed, although I concur in the affirmance of the conviction.

      . At the request of the state and defense counsel, the trial judge included in his general charge to the jury an instruction as to when the use of force or violence upon the person of another is justified as set forth in La.R.S. 14:19. Hence, the third requested special charge was essentially included in the general charge.

      . In convicting her of attempted manslaughter (an attempted killing in hot blood, immediately caused by provocation, La.R.S. 14:31), a responsive verdict to the attempted second degree murder charged, the jury apparently rejected the complaining witness’s version. He testified that the accused entered the store with a gun, told him “this is a stick-up,” and without more ado then shot him. She lived a block and a half from the store and was a regular customer.
      The investigating police officers testified as to her consistent reiteration of this version, and her willing cooperation with the investigation. After the shooting, the accused went to her nearby home and waited for the police to arrive.

      . Her torn dress was introduced in evidence in corroboration of her version, as is her mother’s testimony of how she came home sobbing and then immediately left again for the store.

      . By Act 635 of 1977, the legislature enacted La.C.Cr.P. art. 894.1, providing sentencing guidelines. Imprisonment is indicated if “A lesser sentence will deprecate the seriousness of the defendant’s crime.” 894.1 A(3).

      . In according suspension or probation, the trial court should give weight to whether the defendant’s criminal conduct caused or threatened serious harm. 894.1 B(l).

      . See mitigating factors legislatively suggested by La.C.Cr.P. art. 894.1 B(3)-(ll) (1977):
      “(3) The defendant acted under strong provocation;
      “(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      “(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      “(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      “(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      “(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      “(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      “(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      “(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.”


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Carl MAENZA, Appellant.
    No. 59641.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      Alan James Boudreaux, Staff Appeals Counsel, Indigent Defender Board, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Me-tairie, for appellee.
   TATE, Justice.

The defendant Maenza was convicted of simple burglary, La. R.S. 14:62, and sentenced as a multiple offender, La. R.S. 15:529.1, to 15 years at hard labor. Upon his appeal, he relies upon one assignment of error.

The assignment relates to the introduction as rebuttal testimony of evidence as to a prior out-of-court statement of Maenza’s co-defendant at the trial, Mrs. Younkins. The chief basis of the assignment is that this inculpatory statement was improper rebuttal.

(1)

Maenza and Mrs. Younkins were jointly charged and tried with burglary of a residence. The state made out a strong circumstantial case:

Immediately prior to discovery of the burglary, Mrs. Younkins was found parked in a car in the driveway of the residence. Shortly afterwards, Maenza was detained while leaving the rear of the premises.

Upon immediate investigation, a back window was found to have been broken, through which entry had apparently been made. The bedroom had been ransacked, and clothes were piled at the head of the stairs, as if for preparation to be removed. A button matching those on Maenza’s coat was found in the back of the premises, while analysis of glass shards found on Maenza’s boot soles and clothes were found to match the glass of the broken window.

Upon proper proof of voluntariness outside of the jury’s presence, the state also introduced evidence as to exculpatory written statements made by the co-defendants to the police after the crime. The statements were to the effect that they were ringing doorbells and knocking on doors in an attempt to locate an acquaintance who might afford employment to Maenza.

(2)

Also, outside the presence of the jury, the state attempted to lay a foundation to introduce an additional oral statement made by Mrs. Younkins, the co-defendant, which was inculpatory in nature as to both defendants.

The trial court sustained the defendants’ objection to admission of this inculpatory statement as part of the state’s case in chief. The defense objection was based upon the denial of Maenza’s confrontation (cross-examination) rights by the admission into evidence of his co-defendant’s out-of-court unsworn statement adverse to him. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); State v. Monroe, 305 So.2d 902, 915 (La.1974).

At this time, in response to a state request for an anticipatory ruling, the trial court noted that, if Mrs. Younkins did take the stand, then the statement would be admissible in rebuttal. (Then, since cross-examination was available as to Mrs. Youn-kins’ sworn trial testimony, the court noted that Maenza’s constitutional rights would not be violated.)

After the state rested, Mrs. Younkins did testify in her defense and that of her co-defendant. She repeated in substance the content of her prior written statement given to the police, namely, that she and Maen-za were in the neighborhood ringing doorbells and knocking on doors in an attempt to locate an acquaintance who allegedly lived nearby.

On cross-examination, she replied affirmatively to the question of whether she had given the written statement to which the police officer had testified. She was then asked if he had given that identified officer “any other statement” or “any oral statement or oral information other than what’s contained in those statements.” She replied in the negative to these questions.

Over objection, the state was permitted to call the police officer in rebuttal. He testified that Mrs. Younkins had orally furnished him certain incriminating information, but that she did not wish to include this in her written statement since she was in love with Maenza.

After the state’s rebuttal testimony, the trial court reopened the defense case to permit Mrs. Younkins to testify. She positively denied having made the oral inculpa-tory statement.

(3)

The sole basis of the objection to the evidence as to the prior out-of-court statement was that it constituted improper rebuttal and that, if introduced as a prior inconsistent statement, Mrs. Younkins was not first asked as to the substance of the earlier statement, a predicate to its independent admission as impeaching testimony. See La. R.S. 15:493.

Under the circumstances shown, this objection is without merit.

The testimony rebutted Mrs. Younkins’ testimony that she had given the other statement. It was not improper rebuttal:

The state did not unfairly attempt to prejudice the defendant by reserving an important part of its case-in-chief to rebuttal-—on the contrary, it tried unsuccessfully to introduce the evidence earlier, with full notice to the defense of its intent to introduce it in rebuttal should it become, admissible through Mrs. Younkins subjecting herself to cross-examination through testifying. By reopening the case to permit the defense to counter the rebuttal testimony, the trial court cured any prejudice occasioned defendants, where new evidence offered in rebuttal may not ordinarily be explained or denied by the accused, La. R.S. 15:282. See State v. Turner, 337 So.2d 455, 458 (La.1976).

We likewise find no merit to the technical objection as to the alleged lack of pre-requisite foundation for introduction of a prior inconsistent statement for impeachment purposes, La. R.S. 15:493.

The statement was introduced as an admission of a co-defendant. It rebutted her trial testimony of an innocent explanation for the presence on the scene of herself and her co-defendant.

The statement was introduced in proof of the defendant’s guilt, not simply to impeach her trial credibility. “Regardless of the precise theory of admissibility, it is clear today that admissions of a party come in as substantive evidence of the facts admitted, and that no foundation or predicate, by examining the party himself, such as may be required for impeaching evidence, is prerequisite for proof of admission.” McCormick on Evidence, Section 262 at pp. 629-630 (2d ed. 1972).

Decree

Since we find no merit to the assignment urged, we affirm the conviction and sentence.

AFFIRMED.

      . Mrs. Younkins’ oral statement to the police officer was to the effect that, prior to the offense, Maenza had told her to drive into the driveway of the burglarized premises and to get out and ring the doorbell. When no one answered, Maenza walked into the fenced yard of the premises and went to the back of the house subsequently found to have been entered through a broken back window and ransacked.

      . Of course, admissions of a defendant involving a criminal intent must, like confessions, be first affirmatively shown to have been free and voluntary. La. R.S. 15:451, 454. No contention is here made that such predicate was not well established in the present case.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Donald R. SIMS and Tyler Lee Sims.
    No. 59874.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Jerry Kircus, Shreveport, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Sonia D. Peters, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

Defendants Donald R. and Tyler Lee Sims were convicted of possession of marijuana in violation of R.S. 40:966(C) and sentenced to pay a fine of $300 and costs, plus four months in jail. The prison sentence was suspended and defendants were placed on probation for eighteen months. Defendants applied for writs contending that the trial court erred in admitting into evidence marijuana recovered from defendants’ car and in allowing a prosecution witness to read and testify from notes he had prepared earlier. Because we find merit in the first contention warranting reversal, we pretermit discussion of the second.

In the evening of November 22, 1975 Officers Mike Bums, Jack Miller and Tom Ostendorf of the Shreveport Police Department executed a search warrant at the residence of Danny G. Mingo. During the search the officers were told by Mingo’s father that Danny was attending a narcotics party at a nearby motel. The officers proceeded to the motel and, upon arriving, noticed a black Cadillac occupied by three black males. Officer Miller had learned from a confidential informant earlier that day that a black male, Luther “Hawk” Christopher, had a quantity of heroin in his car, and that he was driving a black Cadillac. At trial, Miller, when asked whether he could identify the occupants of the car at that time, stated: “I — when I first saw it it was dark and they were backing out of a parking spot on the back side of the motel, there was not very much light there and to me I thought that the driver was Luther Christopher. He resembles him very much.” Officer Miller was the only officer present who knew Christopher by sight. The officers then sounded their siren in order to stop the defendants as they were driving toward the parking lot exit. The defendants did not stop immediately after the first siren blast, but rather continued seven-eight car lengths to the parking lot exit at the street before being blocked by street traffic. The officers, with guns drawn, approached the car, pulled the defendants out and demanded identification. After the defendants had been removed from the car, Officer Burns noticed two marijuana cigarettes on the front seat. Defendants were then placed under arrest for the possession of marijuana.

The State argues that the marijuana was properly admitted at trial because it was seized after being observed in “plain view” during a valid investigatory stop.

It is now well settled that before a police officer may make a valid investigatory stop he must at least have reasonable cause to suspect the one stopped of past, present or imminent criminal conduct. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889 (1968); State v. Smith, 347 So.2d 1127 (La.1977); State v. Cook, 332 So.2d 760 (La.1976); State v. Saia, 302 So.2d 869 (La.1974). Evidence seized as a result of an investigatory stop made without such reasonable cause cannot be constitutionally admitted at trial. State v. Smith, supra; State v. Cook, supra; State v. Truss, 317 So.2d 177 (La.1975).

It is clear from the record that the officers had no reason to suspect these particular defendants of past, present or imminent criminal conduct. There was no known connection between the defendants and Mingo or Christopher. The officers, originally looking for Mingo, saw a Cadillac being driven by a man whom one of the officers thought resembled Christopher. The information connecting Christopher with heroin traffic was obtained through a confidential informant about whom the trial court had no information and whose information was neither detailed nor verified at trial. The only suspicious behavior exhibited by the defendants was their failure to stop immediately after the officers sounded their siren. Officer Ostendorf testified at trial, however, that the defendants’ car windows were rolled up and that it was possible that the defendants did not hear the siren. The police car was unmarked and not equipped with flashing lights.

Assuming that the officers had sufficient cause to stop the defendants for investigatory purposes, that cause does not justify their actions after the officers realized that Christopher was not one of the occupants. Officer Miller, the only one of the three who could identify Christopher, testified that it was not necessary to remove the occupants to realize that Christopher was not among them.

In order for the “plain view” exception to support a warrantless search, there must be a prior justification for the intrusion into the protected area. State v. Fearn, 345 So.2d 468 (La.1977). In the present case, the marijuana cigarettes were on the front seat between the defendants and not in view until the defendants were pulled from the car. As discussed above, the officers were not justified in removing the defendants from the car, and the “plain view” exception is therefore inapplicable.

For the reasons stated, the evidence seized should not have been admitted at trial. The judgment of the trial court is therefore reversed and the case remanded for new trial.

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

SUMMERS, J., dissents.

      . Larry Sims, brother of the defendants and the third occupant of the car was also charged with the offense, but was found not guilty after trial.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Milton J. HELMKE, Jr., Milton J. Helmke, III and Mercedes Kerner.
    No. 59901.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Michael T. Stone, Asst. Dist. Atty., for plaintiff-relator.
    Servando Garcia, Edward G. Koch, Jr., New Orleans, for defendants-respondents.
   CALOGERO, Justice.

Defendants are charged with having committed the crime of gambling as defined by R.S. 14:9o. The state’s case was initially aided by information received from a confidential informer, and later by the successful execution of a search warrant on December 20, 1976.

The defendants by motion for a bill of particulars sought, among other things, the identity of the state’s confidential informant. The state refused to disclose this information and after a hearing on the defendants’ motion the magistrate in the trial court ordered the state to disclose to the defendant the informer’s identity.

The state sought writs contending that the trial judge erred in requiring the disclosure of the name of the confidential informant. Writs were granted. State v. Helmke, 346 So.2d 220 (La.1977).

According to the averments of the affidavit in support of the search warrant application, a reliable confidential informant contacted Vice Officers Lawless and Barre on December 14, 1976 and advised that he had been placing bets on various sporting events with defendants, Milton J. Helrnke, Jr., also known as Junior, and his son Milton J. Helrnke, III by dialing certain telephone numbers. The informant told the officers that he had placed his last bet two days earlier, on December 12, 1976. Investigations precipitated by this information led to verification of the phone numbers as belonging to the Helmkes. The investigations also disclosed that both Helmkes had previous misdemeanor arrests and that Helrnke, Jr., ran a Magazine Street bar at which six persons were arrested for gambling years ago. The officers met with the informant again on December 15, 1976 and were informed that Helrnke III was taking the bets that day.

The informant stated that Junior only worked at night except on Saturdays, Sundays and holidays. The informant accompanied the officers to their office where he complied with their request that he place a bet while the officers monitored the call from an extension phone in the office. The informant placed the call and the informant asked the party who answered the call if he was Milton and received an affirmative answer. After identifying himself, the informant placed a wager on a horse; “Milton” repeated the bet, stated “I’ve got it” and the conversation was ended. The vice officers again monitored a telephone bet placed by the informant on December 17, 1976 with “Milton.”

On December 20, 1976, the officers, applied for a warrant to search the Helrnke apartment for gambling paraphernalia and related items. The warrant issued. Pursuant to the execution of the warrant the officers confiscated gambling paraphernalia at the location and arrested the defendants.

The trial court ordered the state to disclose the informant’s identity after concluding that the incidents of December 15th, 17th and 20th constituted a single continuous crime, and that the informant did in fact take part in the crime. The trial court felt compelled by the United States Supreme Court’s decision in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) to rule as it did.

The privilege of concealing the identity of a confidential informer serves several important purposes in contemporary society. It works to benefit the informer and thereby the state. The aid to the informer is obvious. The aid to the state is an increase in effective law enforcement. In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971) we discussed this privilege more fully as follows:

The informer privilege is the privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. The privilege is founded upon public policy and seeks to advance the public interest in effective law enforcement. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Seher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); 21 Am.Jur.2d, Criminal Law, § 332, pp. 359-360; Gutterman, The Informer Privilege, 58 J.Crim.L.C. & Pol.S. 32.
Because of its social importance, courts zealously guard the privilege. They order disclosure of the name of a confidential informant only under exceptional circumstances for the prevention of an injustice. The burden is upon the defendant to show exceptional circumstances justifying disclosure. State v. Green- baum, 257 La. 917, 244 So.2d 832; State v. Boles, 246 N.C. 83, 97 S.E.2d 476; State v. Driscoll, 61 Wash.2d 533, 379 P.2d 206; 21 Am.Jur.2d, Criminal Law, § 332, p. 360. On the question of whether the circumstances warrant disclosure, much discretion is vested in the trial court. Durham v. United States, 403 F.2d 190 (9th Cir. 1968); Anno: Accused’s Rights-Informer-Identity, 76 A.L.R.2d 262, 279.

This privilege granted to the government, however, is not an absolute one. Exceptions of course do exist. The United States Supreme Court in Roviaro v. United States, supra, discussed the several exceptions to the privilege of withholding an informer’s identity and their underlying rationales. 353 U.S. 60-62, 77 S.Ct. 623, 628-29. The Court noted that it was impossible to delineate a “fixed rule” according to which the issue of informer disclosure should be governed. The appropriate criteria subject to consideration in such situations was discussed as follows:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

A situation found to warrant disclosure of an informer’s identity was where it, or disclosure of the contents of the informer’s information, would be relevant and helpful to the defense of the accused or “essential to a fair determination of a cause.” 353 U.S. 60-61, 77 S.Ct. 628. In Roviaro, supra, the defendant was charged on two counts: sale of heroin to a confidential informant, John Doe; and, receiving, concealing, and transporting heroin. After the trial court denied the defendant’s pre-trial request for disclosure of the identity of the confidential informant the defendant was tried and convicted on both counts. At Roviaro’s trial the government relied on the testimony of several police officers and federal narcotics agents. Their testimony recited the following sequence of events. Late one evening the confidential informant was to meet the defendant to conduct an illegal transaction. Prior to this meeting the police made arrangements with the informer to have one of the officers hidden in the trunk during the transaction. With the concealed officer in place the informer proceeded to his meeting with the defendant. After picking up the defendant the informer then proceeded to a new location where the defendant exited from the car only to return with a package. (It was later determined that the package contained heroin.) The officers then arrested both the defendant and the informer. The officer who had been concealed in the trunk of the car also testified as to what he had heard while in the trunk and as to what he had seen after the car was stopped for the completion of the illegal transaction. In finding that the trial court had erred in denying the disclosure of the informer’s identity, the United States Supreme Court found that the identity of the informer was highly relevant to the evidence which would be produced at trial and thus concluded that disclosure was required as a necessity to the accused’s defense and a fair determination of the case.

In the case at hand defendants are charged with gambling activity on December 20th. The confidential informer was not and is not alleged to have been a witness to any activity on the date. At this time, however, we cannot categorically state that there could be no possibly permissive purpose for which the evidence of the informant’s placing bets on December 15th and 17th would be admissible at the defendants’ trial for activities occurring on December 20th. To the extent that such might be admissible, the defendants have presented a plausible argument that disclosure of the informant’s identity is necessary to the preparation of their case. Defendants contend that such a result is dictated by Roviaro.

We need not resolve that question in this case, however, due to the state’s stipulation in oral argument before this Court that no evidence whatever concerning the telephone calls made on December 15th and 17th by the confidential informant would be introduced at the forthcoming trial of defendants, whether in rebuttal, and whether by the informer himself or by the police who monitored the calls. In light of such stipulation there is no need or requirement that defendants be given the identity of the confidential informant. This stipulation precludes any possible unfairness in the determination of the guilt or innocence of the defendants resulting from non-disclosure. The ruling of the trial court ordering disclosure of the informer’s identity will thus be reversed.

It is therefore ordered that the decision of the trial court requiring disclosure of the confidential informer’s identity be reversed and the case remanded to the trial court for further proceedings in accordance with this opinion.

      . Milton J. Helmke, III and Milton J. Helmke, Jr. were charged in a single bill of information with having conducted as a business a football gambling handbook. Under a separate docket number Mercedes Kerner was charged with having conducted as a business, a “game, contest, lottery and contrivance, in that she did encourage, promote and aid diversfe] persons . . ., to bet and wager upon the results of running, trotting and pacing horse races . in order to realize a profit.” The respective bills of information each set forth illegal gambling activities on the 20th of December, 1976; the Helmkes “in the City of New Orleans,” Mercedes Kerner at an apartment on St. Charles Avenue. The respective crimes apparently arose out of a single incident and the cases were consolidated in the court below.

      . Since our decision is based on concessions made in oral argument in this Court this opinion should in no way be taken as a suggestion that the trial judge necessarily erred. His decision may well have been correct under the circumstances confronting him at the time. We venture no opinion in this respect.