author: DIXON, Justice.

text:
    STATE of Louisiana v. Albert Jennings “Red” MALVO.
    No. 58918.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

      James C. Mclnnis, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., A. J. Fazzio, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On January 17, 1975 defendant was indicted by the Calcasieu Parish Grand Jury for distribution of heroin. He was tried by jury, found guilty as charged, and sentenced to life imprisonment at hard labor. On appeal seven arguments on assignments of error are urged for a reversal of the conviction.

On July 5, 1974, shortly before midnight, an undercover agent for the Calcasieu Parish sheriff’s department, Deputy Joseph Payne, met with Deputy Theos Duhon at the sheriff’s office. Duhon searched Payne for drugs and money and then gave him $50.00 to use for a drug purchase. Payne left and at approximately 12:10 the next morning met with the defendant on Enterprise Boulevard in Lake Charles. The defendant offered to sell a “paper” of heroin to Payne and instructed the officer to follow him to his residence on North Goos Boulevard in Lake Charles. When they arrived at the residence, the defendant and Payne entered and Payne purchased a small amount of heroin for $25.00. Payne then left, later meeting Deputy Duhon and delivering the drug packet. The defendant was arrested on January 16, 1975.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying a motion to quash that alleged that the defendant had been denied due process through the more than six month delay between the commission of the offense and the indictment.

The issue presented is not one arising under the speedy trial provisions of the Sixth Amendment of the United States Constitution and Art. 1, § 16 of the La. Const, of 1974; the constitutional guarantees to a speedy trial are not invoked until a citizen has become an accused, either by arrest or indictment. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Fraise, 350 So.2d 154 (La.1977); State v. Neyrey, 341 So.2d 319 (La.1976). Instead, the fundamental rights to due process and a fair trial are raised by defendant’s assignment.

The United States Supreme Court was presented with a similar issue in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In that case the defendant was indicted for several federal offenses more than eighteen months after they allegedly were committed. The defendant successfully argued in the district court and in the Court of Appeals that he was denied due process because the delay was unnecessary and prejudiced his defense. The Supreme Court, on review, readily disposed of the defendant’s argument that due process requires the dismissal of all prosecutions in which thé defendant suffers prejudice as a result of the pre-indictment delay, stating:

“. . .To support that proposition respondent relies on the concluding sentence of the Court’s opinion in Marion where, in remanding the case, we stated that ‘[ejvents at the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.’ 404 U.S., at 326, 92 S.Ct. 455, 30 L.Ed.2d 468. But the quoted sentence establishes only that proof of actual prejudice makes a due process claim concrete and ripe for adjudication, not that it makes the claim automatically valid. Indeed, two pages earlier in the opinion we expressly rejected the argument respondent advances here: ‘[W]e need not . . . determine when and in what circumstances actual prejudice resulting from preaccusation delay requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution.’ Id., at 324-325, 92 S.Ct. 455, 30 L.Ed.2d 468. Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” 431 U.S. at 789, 97 S.Ct. at 2048-2049, 52 L.Ed.2d at 759.

The court, after noting that the investigation of Lovasco was largely unproductive during the last seventeen months before indictment, rejected a rule which would require the government to file charges as soon as it had accumulated sufficient evidence to prove guilt beyond a reasonable doubt, stating that it would produce the following undesirable results:

“First, compelling a prosecutor to file public charges as soon as the requisite proof has been developed against one participant on one charge would cause numerous problems in those cases in which a criminal transaction involves more than one person or more than one illegal act. In some instances, an immediate arrest or indictment would impair the prosecutor’s ability to continue his investigation, thereby preventing society from bringing lawbreakers to justice. In other cases, the prosecutor would be able to obtain additional indictments despite an early prosecution, but the necessary result would be multiple trials involving a single set of facts. Such trials place needless burdens on defendants, law enforcement officials, and courts.
Second, insisting on immediate prosecution once sufficient evidence is developed to obtain a conviction would pressure prosecutors into resolving doubtful cases in favor of early — and possibly unwarranted — prosecutions. The determination of when the evidence available to the prosecution is sufficient to obtain a conviction is seldom clear-cut, and reasonable persons often will reach conflicting conclusions.
Finally, requiring the Government to make charging decisions immediately upon assembling evidence sufficient to establish guilt would preclude the Government from giving full consideration to the desirability of not prosecuting in particular cases. The decision to file criminal charges, with the awesome consequences it entails, requires consideration of a wide range of factors in addition to the strength of the Government’s case, in order to determine whether prosecution would be in the public interest. Prosecutors often need more information than proof of a suspect’s, guilt, therefore, before deciding whether to seek an indictment. . . . ” 431 U.S. at 793, 97 S.Ct. at 2050-2051, 52 L.Ed.2d at 761-762.

Recognizing that Lovasco may have in fact suffered some degree of prejudice as a result of the delay, the court nevertheless held that “. . .to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.” 431 U.S. at 796, 97 S.Ct. at 2052, 52 L.Ed.2d at 763.

This court was presented with the issue of pre-arrest delay in State v. Stetson, 317 So.2d 172 (La.1975). There a period of seven months lapsed between an alleged heroin sale and the defendant’s arrest. While it is true that we rejected the defendant’s due process argument on the specific ground that no proof of prejudice was offered, we did not hold, as defendant Malvo contends, that a showing of prejudice alone is enough to demonstrate a denial of due process. Instead, we stated:

“Actually, prejudice to the defense of a criminal case may result from the shortest and most necessary delay; yet, no one suggests that every delay causing detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the defendant’s rights to due process and a fair trial will necessarily involve a deliberate judgment based on the facts and circumstances of each case. It would be unwise at this juncture to attempt to forecast those decisions. United States v. Marion, supra.317 So.2d at 175-176.

The proper approach in determining whether an accused has been denied due process of law through a preindictment or' pre-arrest delay is to measure the government’s justifications for the delay against the degree of prejudice suffered by the accused.

Testimony at the motion to quash hearing in the present case showed that the defendant sold heroin to an undercover agent, Deputy Payne. At the time of the transaction, Payne was investigating narcotics traffic in the immediate Lake Charles area. After the defendant’s sale, the focus of the investigation gradually shifted to the western and northern parts of Calcasieu Parish and to east Texas, in conjunction with Texas authorities. The protection of Payne’s undercover status was necessary to the success of the operation.

The defendant contends that he was prejudiced by the government’s actions because a material defense witness, Joseph Miller, died during the seven month delay. At the hearing the defendant testified that during much of 1974 he spent a considerable number of days job hunting with Miller and that if he were now alive he could probably help determine what the defendant was doing on the night of the alleged offense.

Balancing the interests of the government in continuing a successful undercover operation against the minimal prejudice demonstrated, we conclude that the defendant was not denied due process through the delay. It is significant that it was not shown that the “material” witness who was no longer available for trial in fact had testimony which would aid defendant’s case. Instead, all that is known is that the witness might have been able to assist the defendant in tracing his actions on the night of the offense. While the State’s interest in protecting its investigations will not be sufficient to justify a delay which causes significant prejudice to an accused, we do not find such prejudice in this case.

This assignment is without merit.

Assignment of Error No. 2

Defendant contends that it was error for the trial court to fail to quash his indictment on grounds that the grand jury returned fifty-two other indictments on the same day his was returned. He argues that the spirit of Art. 1, § 15 of the La.Const. of 1974 was violated because the grand jury could not have taken adequate time to consider the defendant’s case.

The assignment is without merit. First, it does not appear from the record that the defendant raised this issue before the trial court. Second, even if the issue was presented to the trial court, there is no showing that the grand jury did not follow the proper procedures for indictment. Accordingly, no error is shown.

Assignment of Error No. 3

Abandoned on appeal.

Assignment of Error No. 4

Defendant contends that it was error for the trial court to deny his motion to reduce bond. The issue of excessive bail is rendered moot after conviction and sentence. State v. McDaniel, 340 So.2d 242 (La.1976). Accordingly, nothing is presented for review on this appeal.

Assignment of Error No. 5

During the recross-examination of Deputy Payne at trial, the defense counsel asked, “Do you realize the penalties carried if this man is found guilty today?” The State’s objection to the question was sustained by the trial court. The defendant now contends that it was error for the court to sustain the objection because the required sentence for the offense for which he was tried was life imprisonment and that it was prejudicial to prevent the jury from being informed of that sentence.

The issue of whether the defendant has a right to have the jury informed of the possible sentences for the offense charged has frequently been raised in recent cases and is the subject of considerable disagreement. See State v. Hodges, 349 So.2d 250 (La.1977); State v. Milby, 345 So.2d 18 (La.1977); State v. Prater, 337 So.2d 1107 (La.1976); State v. Chatman, 337 So.2d 1106 (La.1976); State v. Unzueta, 337 So.2d 1102 (La.1976).

That issue, however, is not properly before us. The question asked of Deputy Payne, when viewed in context, was clearly intended as a means of impressing upon the officer the severity of his charges and of testing his credibility; it does not appear that it was intended to convey to the jury the severity of the penalty for the offense. Further, the defendant did not object to the failure of the trial judge to instruct the jury on the penalty. Under these circumstances, we conclude that the ruling was based on the scope of recross-examination; we can assume the officer knew the serious nature of the accusation.

This assignment is without merit.

Assignment of Error No. 6

The defendant contends that the trial court erred in failing to instruct the jury that the State has the burden to prove every act alleged in the indictment and in the answers to the bill of particulars. The issue apparently arose out of the confusion of the State witnesses as to the exact municipal address number of the house in which the drug transaction took place.

We find defendant’s assignment to be without merit. The trial court properly instructed the jury as to the State’s burden to prove every element of the offense charged. The defendant failed to either make a request for a special jury charge or object to the jury charge given by the trial court.

Assignments of Error Nos. 7 and 8

The defendant contends that the trial court erred in not declaring a mistrial after the jury was deadlocked and could not return a verdict.

The record does not support the defendant’s contention that the jury was deadlocked. After the jury returned a second time to the courtroom without a verdict, the following occurred:

“THE COURT: Mr. Bailey, I have received a message from the Court Deputy that he tells me that you have informed him to the effect that the jury, in your opinion, is hopelessly deadlocked, and that you are unable to arrive at a verdict. Now, is that a correct message or not?
MR. BAILEY: Yes, Your Honor.
THE COURT: In your opinion, Mr. Bailey, would any good purpose be served by your continuing in your deliberations or not, or do you think that it is hopeless?
MR. BAILEY: Your Honor, I think that we have .
THE COURT: And, Mr. Bailey, don’t . don’t tell me so . . . anything about numbers, or about what any particular problems are, or anything else. I simply want to know whether or not that the jury feels that it has . that no good purpose would be served by continuing, you know, with their deliberations.
MR. BAILEY: I think we should continue deliberations.
THE COURT: What is that, sir?
MR. BAILEY: I think we should continue deliberations.
THE COURT: Oh, you do think that you should continue
MR. BAILEY: Yes, sir, I do.
THE COURT: All right, sir. Then you will be permitted then to continue your deliberations. If you have any further messages, or anything, or if you are able to reach a verdict, notify the Court Deputy. If you should feel like you have exhausted all possibilities of arriving at a verdict, then send that message to me also.”

It is clear that the jury was not in fact deadlocked and that the trial court did not err in failing to declare a mistrial. Furthermore, the defendant made no request for a mistrial at the time. Accordingly, the assignments are without merit.

Assignment of Error No. 9

After trial and sentencing, the defendant filed the following Assignment of Error in the trial court:

“The Jury’s verdict was contrary to the law and the evidence. The trial judge should have directed a verdict of acquittal at the close of the evidence, and to not so order was error. Designation of entire record transcript desired.”

In brief on appeal the defendant contends that the trial court erred in certain eviden-tiary rulings and that the error is discoverable on the face of the record.

Evidentiary rulings are not discoverable on the face of the record (C.Cr.P. 920) and the failure to assign error to the ruling constitutes a failure to present the issue on appeal. This assignment is without merit.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

      . It is the opinion of the writer that the jury should be informed of the possible penalties for the offense charged.

      . The question could have been answered simply “yes” without the severity of the penalty being revealed to the jury. From this it is reasonable to assume that the defense attorney merely intended to test the credibility of the witness and did not intend to inform the jury of the consequences of a conviction.


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Sylvester SANDERS, Jr.
    No. 60607.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

    Allen Howard Coon, Monroe, for defendant-appellant. .
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.

       Dixon, J., would grant a rehearing.

   SUMMERS, Justice.

The Ouachita Parish Grand Jury returned a true bill against appellant Sylvester Sanders, Jr., charging him with the aggravated rape of a nine-year-old girl. La.R.S. 14:42. His trial on May 23-24, 1977 resulted in a verdict of guilty. Upon recommendation of the jury appellant was sentenced to imprisonment for life without benefit of probation, parole or suspension of sentence. Three assignments of error are relied upon for reversal of the conviction and sentence.

Assignment 2

Relying upon the authority of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a motion was filed for production of evidence favorable to the accused. The motion sought production of any statements, information or evidence favorable to the accused and also the criminal records of the State’s witnesses in order that defense counsel might test their credibility on cross-examination. The State answered that it had no evidence material to guilt or punishment which was favorable to the accused.

At the hearing held on the motion defense counsel asserted that the motion entitled him to an order of court compelling the District Attorney to furnish the criminal records of the State’s witnesses. The District Attorney answered that the criminal records of the State’s witnesses were not in his files and the law did not require that he obtain such information for the defense. The motion was denied.

The ruling was correct. In addition to compelling the State to disclose the names of its witnesses, the defense motion would impose an obligation upon the State to furnish the defense with copies of the rap sheets of all the State’s witnesses. The •defense may not impose either of these requirements upon the prosecutor. Due process does not require the prosecution to open its files to defense counsel, and the records of arrests and convictions are available to the public and may be obtained by the defense. La.Rev.Stat. 44:1 and 3; State v. Sheppard, 350 So.2d 615 (La.1977); State v. Major, 318 So.2d 19 (La.1975).

Assignments 7 and 8

The victim of this crime was a girl nine years old. She was attacked while her mother was away from the house and the child was alone with her ten-year-old brother and another child. Her attacker carried her outside for a brief interval and then re-entered the house where he had sexual intercourse with her. He then departed. When the victim’s mother returned and learned what had happened she summoned the police who arrived shortly thereafter.

In connection with the investigation which followed Officer Fred Davis of the West Monroe Police returned to the victim’s residence the next day where he presented a group of six photographs, asking if her' attacker were included. She readily pointed to the photograph of defendant as her assailant.

When the victim was questioned by the prosecutor at the trial relative to this photographic identification, defense counsel objected that the photographs were inadmissible because they were irrelevant and because defendant was not identified from the witness stand by the victim. Furthermore, the photographs were said to be objectionable because they were mug shots and were cumulative evidence. Mug shots, it was argued, were evidence of other crimes and as such their admission into evidence would constitute a violation of defendant’s privilege against self-incrimination. Finally, it was contended the photographs were inflammatory and tended to prejudice the jury because of the flimsy effort to hide the fact that they were mug shots by pasting paper over the printed data which identified them as such.

These objections were overruled and the six photographs were presented to the victim. She pointed to defendant’s photograph as her assailant. She also identified the defendant in person as the man who ravished her.

In his per curiam to these assignments the trial judge stated that evidence of .the photographic identification df defendant by the victim within a few hours of the crime was relevant as the earliest evidence of the victim’s recollection of her assailant’s identity. He found also that the display'of the photographs was not prejudicial, the printed information being properly obliterated and the subjects being very similar in looks, color and hair styles.

The admissibility of the photographs was properly established. As the trial judge observed, the photographic lineup at the victim’s residence was the best evidence in point of time of the victim’s power of recollection. Memory is dimmed by the passage of time and it is important to law enforcement and to the rights of the defendant that identification be cbnfirmed or denied before recollection is clouded and misidentification becomes more likely.

Nor is the objection well-founded that these photographs were unduly prejudicial as mug shots. All six photographs are in the record. Only the busts of the subjects are depicted. The six subjects are notably similar. All had the same hair style, color of skin, and facial characteristics. They appeared to be about the same age. The usual information imprinted on mug shots was discreetly covered. Nothing unduly suggestive indicated that defendant’s photograph was included in those shown. In showing the photographs to the jury, they were displayed on the counsel’s table and the jury was instructed to look at them as they walked by the table. Consequently, the photographic lineup was demonstrated to be fair, and evidence concerning the lineup was properly admissible. State v. Hall, 261 La. 777, 260 So.2d 913 (1972).

A claim that allowing photographs of an accused into evidence is a denial of the constitutional privilege against self-incrimination has no merit. U.S.Const. amend. V; La.Const. art. I, § 16; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). A photograph is no more within the privilege of an accused against self-incrimination than is his physical appearance. Gilbert v. United States, 366 F.2d 923 (9th Cir.1966). The privilege is a bar against compelling “communications” or “testimony”; and the compulsion, which makes a suspect or accused the source of “real or physical” evidence does not violate the privilege. Schmerber v. California, supra; State v. Tillett, 351 So.2d 1153 (La.1977).

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

DENNIS, J., concurs, but does not completely agree with the reasons assigned in connection with assignment No. 2.


author: PER CURIAM. TATE, Justice,

text:
    STATE of Louisiana v. Daniel R. HOLMES.
    No. 60636.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

      James E. Shields, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Roy F. Blondeau, Jr., Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Me-tairie, for plaintiff-appellee.
   PER CURIAM.

Defendant Daniel Holmes was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. After trial by jury he was found guilty as charged and subsequently sentenced to serve twenty years at hard labor.

We have reviewed each of defendant’s twenty-three assignments of error and find them to be without merit.

Decree

Accordingly, defendant’s conviction and sentence are affirmed.

DENNIS, J., dissents.

TATE, J., dissents and assigns written reasons.

TATE, Justice,

dissenting.

I respectfully dissent on the basis of Assignments of Error Nos. 7, 9, 10, 11, 14, 17, and 19. These assignments represent questions and arguments by the prosecutor improperly summarizing evidentiary facts in the prosecutor’s files and not in evidence, and improperly commenting upon matters not in evidence. The extreme prejudice caused the accused by this repeated prose-cutorial excess was not cured by the court’s admonition to the jury for it to disregard (some of) the improprieties. The accused was denied a fair trial. The conviction should be reversed, and the case remanded for a new trial in accordance with the law.


text:
    STATE of Louisiana v. Anthony Ray GIBSON.
    No. 60839.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

      Burton E. Cestia, Jr., Porteus R. Burke, New Iberia, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

A grand jury indictment charged appellant Anthony Ray Gibson with armed robbery, attempted first degree murder and attempted aggravated rape. In a trial by jury appellant was found guilty of armed robbery, attempted second degree murder and attempted aggravated rape. Following a pre-sentence investigation appellant was sentenced to 99 years at hard labor without benefit of parole, probation or suspension of sentence for armed robbery; 35 years for attempted second degree murder and 35 years at hard labor for attempted aggravated rape. The sentences were ordered to run consecutively.

The central issue presented by this appeal is the free and voluntary character of appellant’s confession and a contention that an inordinate delay occurred before counsel was appointed to represent him after his arrest and incarceration.

The issues are presented in a motion to suppress in advance of trial, and in a hearing outside the presence of the jury during trial at which time the voluntariness of the confession was again considered and found to be free and voluntary by a second judge.

The victim of the crimes committed by appellant was a married woman who owned and operated a small clothing shop in the town of Jeanerette. On the afternoon of December 6, 1976 appellant entered the store while the proprietress was alone. After browsing a while he selected an item to be gift-wrapped, but departed without the gift when another customer entered the store.

The next day, when the proprietress was alone, he returned about two o’clock in the afternoon. After a while he grabbed the proprietress and held a large knife to her throat, and demanded money, which she gave to him. He then locked the front door and forced the victim into a small room to the rear of the store. There he tied her hands behind her back, made her lay on the floor and raped her. He then tied her feet, covered her face with clothing and cut and stabbed her about, the throat, neck, head and back. Appellant then left the store, taking a bank bag with money and checks from the store.

He was arrested later that day in Jeaner-ette for theft of a .22-caliber rifle, an offense unrelated to the instant prosecution. Because the parish jail was being renovated, appellant was incarcerated in the city jail in New Iberia. As a result of an investigation by the authorities an affidavit was filed on December 13, 1976 charging appellant with armed robbery and attempted murder. The next day he was transferred to the parish courthouse for fingerprints, photographs and processing generally.

On that afternoon appellant was in the office of James Desormeaux, the chief criminal deputy of the sheriff’s office, for questioning. Appellant was given the Miranda warnings, which Major O’Neil Tyler read to him from a card. When appellant stated that he didn’t mind talking to the officers without an attorney, Chief Desormeaux asked him, in Major Tyler’s presence, what he knew about the robbery of the clothing shop. Appellant answered he knew nothing, saying he had spent the day at Alfred’s bar shooting pool. Chief Desormeaux then decided appellant was not going to tell the truth and ordered him returned to the city jail. The entire incident lasted only three to five minutes.

The next day, December 15, appellant was again transferred to the courthouse from the city jail to complete the processing procedure begun the previous day and not finished because the officer in charge of that activity was absent. On this second occasion, while appellant was in Chief De-sormeaux’s office, the Chief and Lieutenant Moore were present. Desormeaux asked appellant if he wanted to talk about the charges against him, to which he replied that he had explained everything the day before. Whereupon, Desormeaux ordered that he be returned to the city jail.

Lieutenant Moore, who, like the defendant, was black, interceded and- requested permission to talk to appellant alone, feeling that he could establish a better rapport with him. Appellant and Moore then went into an adjoining office where Moore gave the Miranda warning and, after a brief interrogation, came out and announced that appellant would talk.

Desormeaux then advised appellant that it would be necessary to record his statement, and when appellant acquiesced he sent for a tape recorder. When it arrived he repeated the Miranda warnings to appellant, who then made a recorded statement recounting the facts essentially as narrated above.

Appellant did not take the stand at the motion to suppress; and no evidence was offered on his behalf. Witnesses for the State testified to the facts set forth above and that appellant was not handcuffed when he gave the taped confession, and no duress, force, threats or promises were used to induce him to confess. Fully cognizant of the heavy burden imposed upon the State to prove that a confession is free and voluntary, the trial judge denied the motion to suppress. He found the confession to be made freely and voluntarily, without influence, fear, duress, intimidation, menaces, threats, inducements or promises, and that there was no evidence to the contrary.

The second hearing on the voluntariness of the confession also involved the authenticity of the tape. At this hearing the three officers present at the December 14 and 15 interrogation of appellant testified substantially as they had at the motion to suppress. They also verified their voices and that of appellant on the tape. Evidence was introduced to show a chain of custody of the tape from December 15, 1976 to the date of this hearing.

On this latter occasion appellant testified outside the presence of the jury, claiming that Chief Desormeaux threatened that if he won this case and got out of jail “they going to have you killed,” and warned that unless he came across with the truth he would be sent to the jail in Orleans Parish “so them dudes can jump on me.” He further testified that he was cursed by Chief Desormeaux who also promised him that he would only be imprisoned for five years if he confessed.

Following appellant’s testimony the State called Chief Desormeaux and Lieutenant Moore in rebuttal. Lieutenant Moore categorically denied that the threats or inducements to which appellant testified were made by either him or Chief Desormeaux. Testimony by Chief Desormeaux was to the same effect.

At the conclusion of this hearing outside the presence of the jury the trial judge was convinced beyond a reasonable doubt that the State had shown that appellant’s confession was freely and voluntarily given with full knowledge of all of his constitutional rights and with a knowing and intelligent waiver of those rights. A finding was made that appellant testified that he was advised of his rights and that he also signed the waiver of rights form.

Prior to presenting the confession to the jury, the State again introduced evidence concerning the circumstances surrounding the making of the confession for the purpose of enabling the jury to determine the weight to be given to it, as required by Article 703 of the Code of Criminal Procedure. The jury’s verdict of guilty implies a finding that the confession was free and voluntary.

The evidence amply supports a finding that the State has affirmatively shown that appellant’s confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.Rev.Stat. 15:451.

Although the record is not clear on the subject, it is certain that appellant was without the benefit of counsel for at least eight days after his arrest and incarceration. This would indicate a failure to comply with Article 230.1 of the Code of Criminal Procedure, which requires the sheriff to bring arrested persons before a judge promptly, and in any case within 144 hours from the time of arrest, a time limit which may be extended by the judge upon a showing of good cause, the purpose being to appoint counsel for the person arrested.

Renovation of the jail in progress at the time and appellant’s incarceration in the city jail disrupted the routine procedures established for complying with Article 230.-1. While this does not excuse compliance, it is indicative of the fact that no effort was made to deny appellant the timely benefit of counsel. In any event the sheriff’s failure to comply has no effect upon the validity of these proceedings. La.Code Pro. art. 230.1(D).

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


author: TATE, Justice.

text:
    STATE of Louisiana, Respondent, v. Mark SIMS, Relator.
    No. 60898.
    Supreme Court of Louisiana.
    April 10, 1978.

      Charles F. Duchein, III, Baton Rouge, for relator.
    Michael C. Barron, Sp. Counsel, La. Dept, of Public Safety, Baton Rouge, for respondent.
   TATE, Justice.

The issue before us primarily involves the construction of a statute which provides for the expungement of arrests relating to misdemeanors, La.R.S. 44:9 (1976). It also involves the related construction of a statute which provides for the dismissal, as an acquittal, of prosecutions for misdemeanors, where the imposition of sentence therefor has been suspended and where the defendant is not charged with or convicted of a criminal offense during the period of suspension. La.C.Cr.P. art. 894 (1975).

We granted certiorari, La., 352 So.2d 1028 (1977), to review the district court’s order refusing expungement. The state contends that the accused is not entitled to expungement (1) because he was arrested for a felony (although convicted of a misdemean- or) and (2) because the statute in terms authorizes only expungements of arrests, not of the convictions consequent to the arrests.

(1)

The defendant was originally arrested for possession of marijuana with intent to distribute it, a felony. The district attorney charged him by bill of information with simple possession of marijuana, a misdemeanor.

The defendant pleaded guilty to this misdemeanor. On December 19, 1975, the trial court deferred sentence in accordance with La.C.Cr.P. art. 894 and placed the accused on probation for a period of one year. After the year had expired, the defendant filed a motion to expunge his criminal records under La.C.Cr.P. art. 894 and La.R.S. 44:9.

The motion was granted. The clerk of court of the district court, the sheriff of the parish, the city police, and the state police were directed to expunge all records of the arrest or conviction, as well as to request the Federal Bureau of Investigation to return to them all documents which they had submitted in connection with the arrest of the defendant. The parish and city officials made returns indicating compliance to the extent necessary.

The state police, however, filed a motion to exclude this state agency from the order to expunge. Upon hearing of the motion, the trial court rescinded its previous order of expungement.

(2)

We have set forth in full La.R.S. 44:9 as Appendix 1 to this opinion and La.C.Cr.P. art. 849 as Appendix 2 to this opinion. The pertinent substance of these statutes is:

A. Article 894 provides that, when a defendant has been convicted of a misdemean- or, the court may suspend the imposition of the sentence; it may place the defendant upon probation for the period of suspension.

Upon expiration of the period of suspension, if the defendant has not been convicted of any other offenses during the period and if no criminal charge is pending against him, “the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense . [for purposes of] prosecution of the party as a multiple offender.” The statute finally provides that such discharge and dismissal may occur only once during a five year period.

The state points out that this article by itself does not authorize expungement of the conviction, as sought by the accused.

B. La.R.S. 44:9 provides for expungement of arrests for the “violation of a state statute which is classified as a misdemean- or.” It provides that the arrested person may obtain an order directing all agencies or law enforcement offices to “destroy” any “record of arrest ... or any other information of any and all kinds of descriptions,” (1) if the prosecution has prescribed or (2) if, after institution, the prosecution has “been finally disposed of by dismissal . or acquittal.”

The custodian must file a sworn affidavit of compliance with the order. This must affirm that no notices or references have been retained in the central repository “which will or might lead to the inference that any record ever was on file with any agency or law enforcement office.” The statute reiterates that “Any criminal court of record in which there was a nolle prose-qui, an acquittal, or dismissal of a crime shall . . . enter an order annulling, cancelling, or rescinding the record of arrest, and disposition, and further ordering the destruction of the arrest record and order of disposition."

Construing the two statutes together, Article 894 expressly provides that the dismissal of a prosecution under its terms “shall have the same effect as an acquittal” (with limited exceptions, as noted). Likewise, La.R.S. 44:9 explicitly provides that, if a prosecution has been instituted and has been disposed of by “acquittal,” then the person arrested is entitled to expungement, not only of any record of arrest, but also of “any other information of any and all kinds of descriptions” which “might lead to the inference that any record ever was on file with any agency or law enforcement office.” The statute further provides that the court shall order the expungement not only of the arrest record but also of the “order of disposition."

In view of this express statutory language, we find no merit to the state contention that expungement is not permissible if a prosecution has been instituted and a conviction had. Article 894 provides that “The dismissal of the prosecution shall have the same effect as an acquittal.” La.R.S. 44:9 provides that, in the event of an acquittal, the order of disposition as well as the arrest may be expunged.

Nor, in view of the intention of the statute to relieve misdemeanants of a criminal record under the circumstances here present, do we find that the initial arrest, an overcharge for a felony, prevents ex-pungement. The actual offense here committed, as determined by the court (and also by the prosecutor here by his bill of information), is only a misdemeanor. Although the arrest as styled when made was for a felony, it was in fact only an arrest “for violation of a state statute which is classified as a misdemeanor” La.R.S. 44:9.

The trial court was therefore in error in rescinding its order of its expungement. In fairness to the trial court, it expressed the view that the apparent aims of the statute would better be served by expungement, but nevertheless it felt that, by strict construction of the statute, expungement was not permitted, however fair and desirable.

(3)

The state police, however, have pointed out that to some extent the statutes are contradictory:

La.C.Cr.P. art. 894, for instance, provides that discharge and dismissal may occur under its terms only once during a five-year period; and it further provides that the conviction, once expunged, is considered as an acquittal for all purposes “except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender.”

The state suggests that literal compliance with the expungement order would erase any administrative record whatsoever of the conviction. Thus, it suggests, prosecu-torial authorities could not obtain from the state police, as central state repository of criminal records, the information necessary to permit prosecutions of multiple offenders, or information necessary to prevent offenders from using Article 894’s beneficent provisions more than once in five years.

Construing the two statutes as a whole, however, we find that no such unworkable and contradictory effects were contemplated by the legislature and that the courts may tailor the expungement order to accomplish both expungement (as directed by the statute) and also limited use of the expunged conviction (as likewise contemplated by the statutes). La.C.Cr.P. art. 3.

The primary purpose of the acts in question is rehabilitative. They were designed to prevent individuals aided by their terms from future harassment and embarrassment by virtue of a criminal record. Without the expungement order involved, for instance, the matters of their arrests and convictions are public records open to public inspection; they thereby are made available to members of the public generally, as well as to credit bureaus, prospective employers, and others. La.R.S. 44:1, 3; La.C.Civ.P. art 251. The primary evil sought to be remedied by the statutes was to expunge the arrest and conviction as a matter of public knowledge and information and as an ordinary police or criminal “record” of the person involved.

The statutes themselves indicate, for instance, that an affiant agency should keep a copy of the affidavit with the expungement order, but that, “said copy shall not be a public record and shall not be open for public inspection but rather shall be kept under lock and key and maintained only for internal record keeping purposes.” La.R.S. 44:9, subd. A(2).

Similarly, Article 894, by its exceptions language, indicates that the state police at least (the only agency here complaining of the expungement order) may likewise keep as a confidential record the fact of the conviction (acquittal) and the expungement order for two purposes (only):

(1) For those misdemeanors for which the offender may receive enhanced penalties as a multiple offender. (Cf. La.R.S. 14:67, 14:98.) The record of the conviction in such event may serve as a first offense under the terms of Article 894.

(2) The fact of the conviction and the discharge under Article 894, insofar as for a period of five years the offender may not again take advantage of the discharge and dismissal (acquittal) of the prosecution.

Accordingly, the statute contemplates that the state police may maintain confidential records of the conviction and of the dismissal of the prosecution under La.C. Cr.P. art. 894 for these limited purposes, as well as for the limited purposes of responding to inquiry by prosecutors or judges who request information as to such convictions for the two limited purposes for which the acquittal under La.C.Cr.P. art. 894 nevertheless permits subsequent use of the conviction, as stated above.

Decree

For the reasons assigned, therefore, we reinstate the district court’s order of ex-pungement to the affected agencies, with a limited modification of the expungement order with regard to the state police, namely, that the latter agency shall maintain confidential records of the conviction and discharge for the limited purposes and the limited access as set forth above.

EXPUNGEMENT ORDER MODIFIED AND REINSTATED.

DIXON, J., concurs.

SUMMERS, J., dissents.

Appendix 1

La.R.S. 44:9:

Records of violations of municipal ordinances and of state statutes classified as misdemeanors

A.Any person who has been arrested for the violation of a municipal ordinance or for violation of a state statute which is classified as a misdemeanor may make a written motion to the district court for the parish in which he was arrested for expungement of the arrest record, if:

(1) The time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted; or

(2) If prosecution has been instituted, and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.

If the court finds that the mover is entitled to the relief sought, for either of the above reasons, it shall order all agencies and law enforcement offices having any record of the arrest, whether on microfilm, computer card or tape, or on any other photographic, electronic or mechanical method of storing data, to destroy any record of arrest, photograph, fingerprint or any other information of any and all kinds or descriptions. The court shall order such custodians of records to file a sworn affidavit to the effect that the records have been destroyed and that no notations or references have been retained in the agency’s central repository which will or might lead to the inference that any record ever was on file with any agency or law enforcement office. The original of this affidavit shall be kept by the court so ordering same and a copy shall be retained by the affiant agency which said copy shall not be a public record and shall not be open for public inspection but rather shall be kept under lock and key and maintained only for internal record keeping purposes to preserve the integrity of said agency’s files and shall not be used for any investigative purpose. This Subsection does not apply to arrests for a first or second violation of any ordinance or statute making criminal the driving of a motor vehicle while under the influence of alcoholic beverages or narcotic drugs, as denounced by R.S. 14:98.

B. Any criminal court of record in which there was a nolle prosequi, an acquittal, or dismissal of a crime set forth above shall at the time of discharge of a person from its control, enter an order annulling, cancelling, or rescinding the record of arrest, and disposition, and further ordering the destruction of the arrest record and order of disposition. Upon the entry of such an order the person against whom the arrest has been entered shall be restored to all civil rights lost or suspended by virtue of the arrest, unless otherwise provided in this section, and shall be treated in all respects as not having been arrested.

C. Notwithstanding any other provision of this section to the contrary, the provisions of this section shall in no case be construed to effect in any way whatsoever the practices and procedures in effect on July 29, 1970, relating to the administration of the implied consent law.

D. Whoever violates any provisions of this section shall be punished by a fine of not more than two hundred fifty dollars or by imprisonment of not more than ninety days, or both, if the conviction is for a first violation; second and subsequent violations shall be punished by a fine of not more than five hundred dollars or imprisonment of six months, or both.

Added by Acts 1970, No. 445, § 1. Amended by Acts 1972, No. 715, §§ 2, 3; Acts 1974, No. 531, § 1; Acts 1976, No. 678, § 1.

Appendix 2

La.C.Cr.P. art. 894:

Suspension of sentence; probation in misdemeanor cases

A. When a defendant has been convicted of a misdemeanor, except criminal neglect of family, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed and place the defendant on unsupervised probation upon such conditions as the court may fix, where suspension is not prohibited under the law. Such suspension of sentence and probation shall be for a period of one year or such shorter period as the court may specify.

When a suspended sentence in excess of ninety days is imposed, the court may also place the defendant on probation under the supervision of the Department of Corrections, division of probation and parole for a period not in excess of two years and upon such conditions as the court may fix.

The court may suspend a misdemeanor sentence after the defendant has begun to serve the sentence.

B. When the imposition of sentence has been suspended by the court, as authorized by this Article, and the court finds at the conclusion of the period of suspension that the defendant has not been convicted of any other offense during the period of the suspended sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender. Discharge and dismissal under this provision may occur only once with respect to any person during a five-year period.

Amended by Acts 1972, No. 514, § 1; Acts 1972, No. 651, § 1; Acts 1975, No. 608, § 1.

      . The state initially argued also that it is required by La.R.S. 15:581.8 (1950) to maintain criminal records until five years after the person identified is dead. The statute was obviously superseded by the later enactment of La.R.S. 44:9 (1970, amendments through 1976), insofar as the latter statute is in conflict with the former.


author: DIXON, Justice. MARCUS, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Richard NELSON.
    No. 60908.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.
    John J. Dolan, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant Richard Nelson was charged by bill of information with three counts of aggravated burglary and one count of attempted second degree murder. He was tried on all four counts before a jury and found guilty of two counts of aggravated burglary, one count of simple burglary and one count of attempted second degree murder. He was sentenced to serve ten years imprisonment on count one, aggravated burglary; twenty years imprisonment on count two, aggravated burglary; and ten years imprisonment on count three, simple burglary — the sentences to run consecutively. He was also sentenced to serve nine years imprisonment on count four, attempted second degree murder; the sentence to run concurrently with the other three. On appeal, the sole assignment of error relied upon for reversal questions the propriety of joining the four offenses for trial.

The defendant was charged with the aggravated burglary of three uptown New Orleans residences: the first occurring on September 1, 1976, the second on September 8, 1976, and the third on September 9, 1976. During the second, the owner of the burgled house was attacked by the burglar and sustained near fatal stab wounds, giving rise to the second degree murder charge. The residences burglarized were located in the same neighborhood, and each was entered by the burglar between 10:30 p. m. and midnight. The defendant was positively identified as the perpetrator of the offenses by the inhabitants of the residences.

Prior to trial, the defendant filed a motion which read as follows:

“MOTION TO QUASH BILL OF INFORMATION
Now into Court through undersigned counsel comes the defendant herein, who moves the Court that the Bill of Information filed in this matter is defective to his prejudice and should be quashed for the following reasons:
1. As stands the bill of information filed by the State in this matter contains a misjoinder of separate offenses, specifically to time, date, location and alleged victim, thereby setting up a trial situation that will prejudice the defendant’s rights afforded by United State’s (sic) Constitutional guarantees under the Fifth, Sixth and Fourteenth Amendments.
2. Mover relies on the interpretation of Article 493 of the Code of Criminal Procedure and the Severance of Offense Article of 495.1 of the La.Code of Criminal Procedure, to substantiate his request to quash this present bill of information filed against him.
WHEREFORE, the mover for the afore-cited reasons stated in this motion requests that the present bill of information filed against him be quashed and that a contradictory hearing be had on this matter with the State of Louisiana on a time and date to be fixed by this Court.”

The motion was denied by the trial court without a hearing.

In 1975 the legislature liberalized the rules governing joinder of offenses by amending C.Cr.P. 493 to provide:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

The joinder of the offenses with which the defendant was charged did not offend the liberal provisions of C.Cr.P. 493. The three aggravated burglaries are clearly of the “same or similar character” and the attempted second degree murder occurred during the commission of one of the burglaries and thus constituted part of the “same act or transaction.” See State v. Proctor, 354 So.2d 488 (La.1977); State v. Holstead, 354 So.2d 493 (La.1977); State v. Carter, 352 So.2d 607 (La.1977).

That the several offenses were properly joined under C.Cr.P. 493 does not necessarily sanction their joint trial. C.Cr.P. 495.1, added by the legislature in 1975, provides:

“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

The State argues initially that the issue of whether the defendant should have been granted a severance is not presented on appeal because the defendant failed to file a “motion for severance” and thus waived any objection he may have had. While it is true that the only pre-trial motion relevant to this issue was captioned “Motion to Quash Bill of Information” and not “Motion for Severance,” we are not persuaded by the State’s argument that the defendant waived the severance issue. In paragraph 2 of the motion, the defendant’s counsel specifically relied upon C.Cr.P. 495.1 for the severance of the offenses. A rigid and formalistic approach denying the defendant the relief sought in the body of the motion merely because of the failure to include in the caption the words “motion for severance” would retard rather than advance the interests of justice. Accordingly, we hold that the severance issue was presented to the trial court through the defendant’s motion.

In State v. Holstead, supra, we outlined the issues presented the trial judge when ruling on a pretrial motion to sever:

“ . . . one of the critical questions to be determined by the trial judge presented with a severance motion is ‘whether, in view of the number of offenses charged and the complexity of the evidence . . . offered, the trier of fact [could] distinguish the evidence and apply the law intelligently as to each offense.’ C.Cr.P. art. 495.1; State v. Proctor, 354 So.2d 488 (La.1977). A second issue to be decided in a case such as this one is whether the offenses joined because they are of the ‘same or similar character’ under Article 493 (as opposed to ‘same transaction’ or ‘common plan’ joinder), are admissible as similar acts under R.S. 15:445 and 446. State v. Carter, 352 So.2d 607, handed down November 14, 1977. ...” 354 So.2d 493, 495.

Our recent cases dealing with the first question indicate that the following problems should be considered by the trial judge:

“ ‘. . . the jury may become confused in trying to apply the applicable law and evidence to the correct offense; that the jury may consider that a person charged with doing so many things is a bad man who must have done something, a feeling that might lead to a cumulation of the evidence; that the judge might find it difficult to adequately charge a jury as to the law with respect to each offense; that the prosecutor may find it troublesome to present his evidence in a compartmentalized and understandable manner; and that a defendant may be confounded or embarrassed in his defense because of the sheer number or complexity of the charges against him. See: United States v. Catena, 500 F.2d 1319 (3rd Cir. 1974); United States v. Clayton, 450 F.2d 16 (1st Cir. 1971); Daly v. Unit ed States, 119 U.S.App.D.C. 353, 342 F.2d 932 (1964); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); United States v. Quinn, 365 F.2d 256 (7th Cir. 1966); United States v. Lotsch, 102 F.2d 35 (2nd Cir. 1939); United States v. Moreton, 25 F.R.D. 262 (W.D.N.Y.1960); Wright, 1 Federal Practice and Procedure § 222, p. 435; 8 Moore’s Federal Practice §§ 8.05[2], 14:03. Moreover, there is no doubt that the greater the number of offenses charged and the degree of their complexity, the greater the likelihood of the occurrence of any or all of these dangers. 8 Moore’s Federal Practice § 8.02[1].’ ” State v. Holstead, supra, at 495-96, quoting from State v. Proctor, supra, at 491.

In the present case the defendant was tried for three similar aggravated burglaries and an attempted second degree murder arising out of one of the burglaries. Because of the relatively uncomplicated nature of the offenses and because the number of offenses joined was not too great (compare with State v. Holstead, supra), there was little danger that the jury would be unable to distinguish the evidence and intelligently apply the law to each offense.

Error was committed, however, in failing to sever the offenses on the basis of the second inquiry noted above. In State v. Carter, supra, we held that when evidence of the joined offenses would not have been respectively admissible in separate trials under R.S. 15:445 and 446, the defendant is entitled to a severance of the offenses. At the outset we note that evidence of the attempted second degree murder would have been admissible at the trial of the aggravated burglary during which the stabbing occurred because it forms part of the res gestae of that offense. See R.S. 15:447, 448. Evidence of the aggravated burglaries, however, would not have been properly admitted at the trial of the others, had they been tried separately. While the offense of aggravated burglary requires specific intent to commit a felony or theft (R.S. 14:62), intent was not a real and genuine contested issue at trial. C. f. State v. Moore, 278 So.2d 781 (La.1973). The evidence of the other crimes would have a cumulative effect alone and only serve to depict the defendant’s bad character or propensity for criminal conduct. See State v. Ledet, 345 So.2d 474 (La.1977); State v. Frederick, 340 So.2d 1353 (La.1976); State v. Prieur, 277 So.2d 126 (La.1973).

Accordingly, we hold that the trial court erred in denying the defendant’s motion and that the offenses should have been severed. The convictions are reversed, the sentences set aside, and the case is remanded for new trials.

SANDERS, C. J., dissents.

SUMMERS, J., dissents. I would affirm the conviction and order resentencing of the simple burglary conviction.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., concurs and assigns additional reasons.

MARCUS, Justice

(dissenting).

In view of the similarity of the method and plan of operation employed by defendant in the three burglary offenses and the close connexity in both time and location among the offenses, I consider that evidence of all three offenses would be admissible in the prosecution for each in order to show “system,” or modus operandi. La.R.S. 15:445 and 446; State v. Lee, 340 So.2d 1339 (La.1976); State v. Jones, 332 So.2d 466 (La.1976). Hence, defendant was not entitled to a severance of the offenses. I would affirm the convictions and sentences.

DENNIS, Justice,

concurring with additional reasons.

When a person is charged with a crime, our law forbids the State to use testimony or evidence concerning other illegal acts to convict the person of the crime, except in certain instances. One such instance, which the State contends is applicable here, is when the charged crime and the other illegal acts are “signature crimes,” i. e., when they are “so peculiarly distinctive that one must logically say they are the work of the same person.” State v. Lee, 340 So.2d 1339, 1345 (La.1976) (concurring opinion). In the instant case the three criminal incidents bear some similarity but they are not so peculiarly distinctive that they can fairly be considered as signature crimes.

The salient features of the three burglaries were as follows:

(1) 7809 Dominican Street, September 1, 1976. At 10:30 p. m., as the victim was coming out of the shower, she saw a man in the hall with “something” in his hand, either a chisel, screwdriver or knife with the point broken off. He made her put a blanket over her head and led her through the various rooms in her apartment. She was able to escape from her apartment and the burglar. After the escape she realized her neck had been cut. Her purse was taken.
(2) 315 Pine Street, September 8,- 1976, after midnight a man entered the occupant’s bedroom with a flashlight. A struggle ensued and the intruder ran out through the kitchen. Afterward the occupant discovered that a large kitchen knife had been stolen, and that he had been cut in the throat area and was bleeding profusely.
(3) 330 Pine Street, September 9,1976, at about midnight one of the victims awoke and saw someone in her bedroom. She screamed and a man ran out of the house. Later, the victim and her husband discovered that both of their wallets had been stolen, along with some dice and a butcher knife from a kitchen drawer. The burglar apparently got in through a window in a utility room.

In my opinion the common marks of the three incidents are so lacking in distinctiveness, and so like the features of many other crimes that are committed every day, that the evidence of each offense had little, if any, probative value on any issue involved in the trial of the other crimes. Thus, the evidence of these three separate criminal episodes was not sufficiently related to warrant a joint trial or the interchangeable use of evidence in what should have been separate prosecutions.

The rule of law which has been applied here is not a new one. It is based upon an act of the legislature which was first adopted in 1928. La.Acts 1928, No. 2, § 1, articles 444-6. The rule has been stated over and over by this Court. State v. Burnette, 353 So.2d 989 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977); State v. Ledet, 345 So.2d 474 (La.1977); State v. Frederick, 340 So.2d 1353 (La.1976); State v. Gaines, 340 So.2d 1294 (La.1977); State v. Slayton, 338 So.2d 694 (La.1976); State v. Clark, 338 So.2d 690 (La.1976); State v. Jones, 332 So.2d 466 (La.1976); State v. Price, 325 So.2d 780 (La.1975); State v. Vince, 305 So.2d 916 (La.1974); State v. Hicks, 301 So.2d 357 (La.1974); State v. Harrison, 291 So.2d 782 (La.1974); State v. Moore, 278 So.2d 781 (La.1973); State v. Prieur, 277 So.2d 126 (La.1973). It has been recognized by nationally prominent scholars of criminal evidence law. 1 Wigmore, Evidence, § 194 (3d ed. 1940); McCormick on Evidence, § 190 (Cleary ed. 1972). It is designed to prevent a prosecutor, who does not have a solid case, from overcoming a lack of evidence in one prosecution by combining it with other weak cases and, purely through a cumulative effect, gaining convictions which could not be obtained if the cases were tried separately. It is a rule with which conscientious prosecutors, who are interested in the cause of justice' and not just conviction rates, should agree and not attempt to circumvent.

      . The maximum penalty legislated for simple burglary (R.S. 14:62) is nine years imprisonment at hard labor. The trial court’s sentence of ten years, as reflected in the official court minutes, therefore constitutes error patent on the face of the record. However, because we find reversible error in defendant’s assignment of error requiring new trials, the sentencing error is without practical significance.

      . In order to determine whether the other crimes evidence would be relevant to a contested issue, the trial judge must be apprised of the nature of the prosecutions either through evidence adduced at a preliminary hearing or in the hearing on the motion for severance. See State v. Carter, supra, at note 14.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Wilfred James MALLETT.
    Nos. 60923 and 60924.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

      James A. Miguez, Milton P. Masinter, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard N. Marcantel, Dist. Atty., Charles R. Cassidy, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Wilfred James Mallett was charged by two separate bills of information with the crimes of contributing to the delinquency of a juvenile in violation of La.R.S. 14:92A(9), attempted theft of rice valued in excess of $500 in violation of La.R.S. 14:27, and criminal trespass in violation of Jefferson Davis Parish Ordinance No. 595, the latter two offenses being charged in separate counts in one bill of information. All three offenses charged are misdemeanors. The minutes reflect that the bills of information were consolidated for trial by agreement of counsel. After trial by jury, defendant was found guilty as charged of all three offenses. On his conviction for attempted theft of rice valued in excess of $500, defendant was sentenced to pay a fine of $200 plus court costs, in the default of the payment of which he was to serve three months in the parish jail, and to serve one year in the parish jail, which sentence was to run consecutively with any other sentence which defendant was to serve. On his conviction for criminal trespass in violation of the parish ordinance, he was sentenced to pay a fine of $100 plus court costs, in default of the payment of which he was to serve thirty days in the parish jail, which sentence was to run consecutively with the sentence imposed for his attempted theft conviction and any other sentence which defendant was to serve. On his conviction for contributing to the delinquency of a juvenile, defendant was sentenced to pay a fine of $500 plus court costs, in default of the payment of which he was to serve thirty days in the parish jail, and to serve six months in the parish jail, which sentence was to run consecutively with the above two sentences and any other sentence which defendant was to serve. Defendant was given credit toward service of his sentences for time spent in actual custody prior to the imposition of sentences. On appeal, he relies on seven assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motions to quash the bills of information. He argues that Jefferson Davis Parish Ordinance No. 595 under which he was charged with the offense of criminal trespass is unconstitutionally vague and the bills of information in which he was charged with the three offenses failed to adequately inform him of the nature and cause of the accusations against him.

Article I, section 13 of the Louisiana Constitution of 1974 provides that, in a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. This constitutional guarantee requires that penal statutes and ordinances describe the unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Tucker, 354 So.2d 1327 (La.1978); State v. Defrances, 351 So.2d 133 (La.1977); State v. dela Beckwith, 344 So.2d 360 (La.1977); State v. Lindsey, 310 So.2d 89 (La.1975). Under the fourteenth amendment to the United States Constitution, words and phrases used in statutes and ordinances must not be so vague and indefinite that any penalty prescribed for their violation would constitute a taking of liberty or property without due process of law. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); State v. Tucker, supra; State v. dela Beckwith, supra; State v. Lindsey, supra.

Jefferson Davis Parish Ordinance No. 595 provides in pertinent part:

SECTION 1. Criminal trespass by hunters and/or fishermen in Jefferson Davis Parish, outside the corporate limits of municipalities, is hereby defined as follows:
Criminal trespass is the intentional and unauthorized entry upon any lands of another by persons engaged in hunting and/or fishing activities under any one or more of the following circumstances, to-wit:
(1) When the land entered is land that is being regularly cultivated for crop production in a plan of crop husbandry and crop rotation, or
(2) When the land entered has been enclosed by fences or other barriers, or
(3) When the land entered is not cultivated land nor enclosed land but upon the boundaries of which signs have been erected at regular intervals on the boundaries in such manner as to reasonably notify the public that such lands are posted against hunting and fishing.

We consider that this provision gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the ordinance. Papachristou v. City of Jacksonville, supra. Accordingly, the ordinance is not unconstitutionally vague.

In one of the bills of information, the state charged that defendant, “a person over seventeen years of age, did unlawfully contribute to the delinquency of a juvenile by intentionally permitting his son Michael a juvenile 13 years of age, to violate a law of the state to-wit: attempted theft La.R.S. 14:27 and Ordinance No. 595 trespassing of Jefferson Davis Parish, (a misdemeanor) in violation of La.R.S. 14:92(9).” This charge closely tracked the language of La.R.S. 14:92A(9). Although the citation of the statute under which defendant was charged was erroneous in that it referred to the pertinent statute as La.R.S. 14:92(9) rather than as La.R.S. 14:92A(9), under La.Code Crim.P. art. 464, error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. No showing is made in the instant case that defendant was prejudiced by the error in the statutory citation. Hence, the error in the citation is not a ground for reversal of defendant’s conviction on the charge of contributing to the delinquency of a juvenile.

In the second bill of information defendant was charged in count one with the unlawful “attempt to commit theft of rice valued in excess of $500.00 from storage bins owned by Truman J. Fear, Jr., with the intent of permanently depriving the owner of the rice, (a misdemeanor) in violation of La.R.S. 14:27.” The charge substantially traced the language of La.R.S. 14:67, the general theft article, which provides:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

In count two of the same bill of information, defendant was charged with unlawfully making “an unauthorized and intentional entry upon the property of Truman J. Fear, Jr., while engaged in hunting activities located in Section 24, T9S, R6W, in Jefferson Davis Parish, being land which is regularly cultivated for crop production, to-wit: soybeans, without the consent of the owner, (a misdemeanor) in violation of Ordinance No. 595 of Jefferson Davis Parish.” This count closely tracked the language of the parish ordinance.

In the instant case, the particulars of the offenses charged were clearly and concisely set forth in the bills of information. Any further particulars of the offenses charged could have been discovered by the filing of a motion for a bill of particulars. The record does not reveal that defendant filed such a motion. In any event, we consider that the bills of information were sufficient to inform defendant of the charges against him, to adequately guard against surprise or lack of notice and to protect against further prosecution for the same offenses. Accordingly, the trial judge did not err in denying defendant’s motions to quash the bills of information.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in ordering that the bills of information be consolidated for trial since the three misdemeanors charged therein could not have been joined in a single bill of information. He further argues that the offenses of attempted theft and criminal trespass were improperly joined in the same information in separate counts since the offenses joined were not triable by the same mode of trial.

The prohibition against misjoinder of offenses and improper consolidation of offenses for trial is grounded on the possible prejudice arising from a single trial on two or more offenses. The defects are not jurisdictional nor do they constitute a denial of due process. State v. McZeal, on rehearing, 352 So.2d 592 (La.1977); State v. Peters, on rehearing, 298 So.2d 276 (La.1974). Hence, misjoinder of offenses may be waived by the failure to timely assert it by a motion to quash, and improper consolidation of offenses for trial may be waived by the failure to object. La.Code Crim.P. art. 495; State v. McZeal, supra; State v. Peters, supra. In the instant case, the minutes reflect that the bills of information were consolidated for trial by agreement of counsel. Furthermore, defendant did not urge the misjoinder of offenses in one of the bills of information by a motion to quash. By his failure to assert the misjoin-der of offenses by a motion to quash and his agreement to the consolidation of the three offenses for trial, defendant has waived these alleged errors in the proceedings.

Assignment of Error No. 2 lacks substance.

ASSIGNMENT OF ERROR NO. 3

Defendant was charged in count two of one of the informations with the offense of criminal trespass committed on “property located in Section 24, T9S, R7W, in Jefferson Davis Parish . . . .” After selection and swearing of the jury but prior to the reading of the informations and defendant’s pleas to the charges on arraignment, the state moved to amend count two of the information by striking “R7W” and substituting in its place “R6W” (Range 6 West). Defendant objected to the amendment on the ground that it changed the parish where the crime was committed. The trial judge ordered the information amended but offered to grant defendant a continuance. Defendant expressly rejected the offer of a continuance. Defendant assigns as error the trial judge’s order amending count two of the information.

In supplemental brief to this court, defendant states that this alleged error will not be urged on appeal as a basis for reversal of his conviction for the crime of criminal trespass because of the lack of proof contained in the record that the amendment changed the parish where the crime was committed. However, defendant reserved his right to assert the alleged error in post-conviction proceedings. Hence, the alleged error is no longer before us for review.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in permitting the state, in closing rebuttal argument, to comment upon defendant’s failure to take the stand.

A reference by the state to defendant’s failure to testify in his own defense, when made within the hearing of the jury, is a mandatory ground for a mistrial under La.Code Crim.P. art. 770. The proper procedural vehicle to assert the improper reference is the motion for a mistrial.

In the instant case, defendant did not object to the allegedly prejudicial remark of the prosecutor or request a mistrial at the time of its occurrence or at the conclusion of the state’s closing rebuttal argument. By his failure to timely object or to move for a mistrial, defendant waived the alleged error. State v. Sims, 346 So.2d 664 (La.1977); State v. Smith, 339 So.2d 829 (La.1977); State v. Clark, 332 So.2d 236 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975). Furthermore, a prosecutor’s argument does not form part of the pleadings and proceedings which may be examined for patent error even in the absence of a formal objection or motion for a mistrial. La.Code Crim.P. art. 920(2); State v. Whatley, 320 So.2d 123 (La.1975). Hence, the alleged error is not presented for our review.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in refusing to permit an expert witness called on behalf of the defense to express his opinion as to whether defendant was psychologically capable of committing the crime of contributing to the delinquency of a juvenile where the juvenile was his son.

Dr. Leonard M. Cohen, a duly qualified expert in the field of chiropractic and social psychology, testified that he had initially seen defendant about one month before the commission of the crimes charged and had treated him over a period of twelve days for a physical condition diagnosed as severe lumbrosacral strain and sciatica. He was extensively examined on his treatment and findings relative to defendant’s spine. He was then asked whether, in his opinion, defendant was physically capable of lifting a certain pipe attachment which was exhibited to him. He responded in the negative. Next, he was asked whether he had formed an opinion regarding defendant’s psychological makeup. Cohen responded that he had formed such an opinion based on his conversations with defendant during the course of defendant’s treatment for a physical condition. The state objected to this line of inquiry. The jury was removed from the courtroom. Upon questioning by the trial judge, the witness admitted that he had treated defendant primarily as a chiropractor rather than as a psychologist. Considering that a proper foundation had not been laid to inquire into defendant’s psychological makeup, the trial judge ruled that Dr. Cohen could not express an opinion as to defendant’s capacity to commit the crime.

An expert witness must state the facts upon which his opinion is based. La.R.S. 15:465. In the instant case, the record reveals that the opinion of the expert witness as to defendant’s capacity to commit the crime of contributing to the delinquency of a juvenile was grounded solely on the occasional conversations which the witness had with defendant during the course of defendant’s treatment for his physical ailment. The witness failed to state the facts upon which his opinion of defendant’s psychological makeup and capacity to commit the crime was based. We consider that an insufficient foundation was laid on which to base the witness’ opinion as to defendant’s capacity to commit the offense of contributing to the delinquency of a juvenile. Accordingly, the trial judge did not err in refusing to permit the expert witness to so testify.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in denying his motion for a new trial in which he alleged, inter alia, that the state presented no evidence to prove the crimes of attempted theft of rice, contributing to the delinquency of a juvenile and criminal trespass.

The record reveals that, prior to the commission of the instant crimes, members of the Jefferson Davis Parish Sheriff’s Office and auxiliary were investigating thefts of rice in the area. In connection with this investigation, the M & M Milling Company, a food processing business owned and operated by defendant’s older son, Chester Mal-lett, was placed under surveillance on the evening of August 10, 1977. Defendant was employed by the company in an advisory capacity. At approximately 8:00 p. m. on that evening, police officers observed a pickup truck belonging to the M & M Milling Company leave the company’s property and return approximately an hour and a half later. Upon its return, two trucks with attached goosenecked trailers owned by the company and used in hauling grain departed from the company site and proceeded in the direction of property owned by Truman Fear, Jr., a rice farmer. Police officers kept the vehicles under surveillance but subsequently lost sight of them. The officers then proceeded to Fear’s property where they inspected the bins used to store rice. There, they observed that one of the bins, which contained rice valued at approximately $13,000, had been set up so that the rice could be emptied from the bin into a pit situated nearby and from there into goose-necked trailers. Shortly thereafter, the police contacted Fear, the owner of the bins, who denied that he had authorized anyone to load rice from the bins or to go on his property. Subsequently, the trucks with the attached goosenecked trailers were sighted by police officers parked on a neighboring farm. Defendant and his thirteen-year-old son were later discovered by police officers kneeling in a nearby field owned by Fear and cultivated for soybean production. They were armed with a shotgun and a pistol and were apparently engaged in hunting. Defendant and his son were taken into custody. Subsequent inspection of the rice bins located on Fear’s property revealed that rice had been removed from one of the bins and placed in the pit in preparation for its loading into goosenecked trailers. Tools and loading equipment belonging to the M & M Milling Company were discovered at the scene. It was later determined that the trucks, goosenecked trailers, tools and equipment had been stolen from the M & M Milling Company.

Our review of the record convinces us that there was some evidence of each of the crimes for which defendant was found guilty by the jury. Accordingly, the trial judge did not err in denying defendant’s motion for a new trial.

Assignment of Error No. 7 lacks merit.

DECREE

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

DIXON, J., dissents on the convictions for trespass (by hunting) and contributing (by permitting the child to hunt). There is no evidence of defendant’s hunting therefore no evidence of contributing to the delinquency of the child.

      . Defendant neither briefed nor argued Assignment of Error No. 4. Therefore, we consider this assignment of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . The minutes reflect that the state was permitted to amend the bill of information in order to specify the state statute and the parish ordinance which defendant allegedly permitted the juvenile to violate.

      . The minutes reflect that the state was permitted to amend this count of the bill of information by inserting the phrases “while engaged in hunting activities” and “being land which is regularly cultivated for crop production, to-wit: soybeans” and by changing the range number of the property from R7W to R6W.

      . With regard to consolidation of two or more indictments for trial, La.Code Crim.P. art. 706 provides:
      Upon motion of a defendant, or of all defendants if there are more than one, the court may order two or more indictments consolidated for trial if the offenses and the defendants, if there are more than one, could have been joined in a single indictment. The procedure thereafter shall be the same as if the prosecution were under a single indictment.

      . La.Code Crim.P. art. 493 governs the joinder of offenses in the same indictment or information and provides:
      Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

      .La.Code Crim.P. art. 495 provides:
      The objections of misjoinder of defendants or misjoinder of offenses may be urged only by a motion to quash the indictment.