text:
    Maurice L. BROWN v. R. T. SUTTON, Commissioner of Conservation, etc.
    No. 60648.
    Supreme Court of Louisiana.
    March 6, 1978.

      Veil David DeVillier, Eunice, for defendant-applicant, R. T. Sutton, etc.
    Ray A. Barlow, Joseph L. Hargrove, Jr., David L. Smelley, Hargrove, Guyton, Ra-mey & Barlow, Shreveport, for intervenor-applicant, Franks Petroleum, Inc.
    J. Clayton Johnson, Taylor, Porter, Brooks & Phillips, Baton Rouge, Samuel W. Caverlee, Wilkinson, Carmody & Peatross, Shreveport, for plaintiff-respondent.
    Robert T. Jorden, George H. Robinson, Jr., Liskow & Lewis, Lafayette, Lawrence E. Donohoe, Jr., Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, John M. MeCollam, Gordon, Arata & MeCollam, New Orleans, Robert Roberts, III, Blanchard, Walker, O’Quin & Roberts, Shreveport, D. R. Sartor, Jr., Snellings, Breard, Sartor, Shafto & Inabnett, Monroe, for amicus curiae.
   SUMMERS, Justice.

Franks Petroleum, Inc., applied to the Commissioner of Conservation on May 12, 1976 for a public hearing. The application set forth that Franks would propose to establish and maintain a unitized operation and secondary recovery project for the Cotton Valley reservoir of the' Minden Field, Webster Parish, Louisiana, pursuant to Section 5 C of Title 30 of the Revised Statute.

Attached to the application was a plat of the area proposed to be unitized, and a list of the 57 parties at interest and represented owners in the proposed unit area. Maurice L. Brown was not listed.

Upon receipt of the application the Commission notified Franks on June 2, 1976 that a hearing would be held in Baton Rouge on July 13, 1976. At the same time the Commission issued its legal notice to the interested parties and represented owners and on June 3, 1977 caused the notice to be published in the State-Times, a daily newspaper of general circulation, published in Baton Rouge.

When Franks received this notice it applied to the Commission by letter for a continuance of the July 13, 1976 hearing until a later date.

In the interval between the application and the continuance Sharon DeFatta, the coordinator of operations of Maurice L. Brown’s company in its Shreveport office, read in the Shreveport Times newspaper on May 25, 1976 that Franks Petroleum, Inc., and Alice-Sidney Oil Co. planned to engage in a secondary recovery unit in the Cotton Valley Formation in the Minden Field. She therefore contacted the Commissioner’s District Office in Shreveport and verified the fact that an application had been made to the Commissioner, at which time she was furnished with a copy of the application. The Commissioner’s representative in the Shreveport Office could not tell her at that time when the hearing would be held. On occasions thereafter her secretary called the Commissioner’s office to obtain the date of the hearing. The record does not indicate how long this effort continued.

In the meantime attorneys for Franks and Maurice L. Brown had been discussing the secondary recovery project and the feasibility of purchasing Brown’s override in the property involved in the proposed project. As a result, on June 8, 1976 Franks’ attorney addressed a letter to the Kansas City office of Maurice L. Brown, to the attention of its General Counsel, in answer to their request for engineering data relating to the secondary recovery proposal. The letter stated that the engineering data had been furnished to the Shreveport office of Maurice L. Brown several months previously and copies could be obtained there. Frank’s attorney also advised that Brown’s request for a copy of the operating agreement covering the proposed unit would not be complied with, for overriding royalty interest owners had no interest in that agreement.

Brown’s Shreveport attorney thereafter wrote to Franks’ attorney on June 15, 1976 advising that they represented Brown in connection with the “Cotton Valley Secondary Recovery Unit, Minden Field, Webster Parish, Louisiana” and referred to Brown’s claim of interest in these properties. “It is our understanding,” the letter continued, “that a request has been made by Franks Petroleum, Inc., to the Louisiana Department of Conservation for a public hearing to unitize the above property for the purposes of secondary recovery.” The letter asserted that Alice-Sidney Oil Company and others represented by the attorney to whom the letter was addressed were claiming interest adverse to the interest of Brown. And that Brown had not been compensated for its interest in the personal property on these leases. In closing, the letter read: “We believe these issues should be met with and resolved before any unitization proposal is made and acted upon.” Copies of this letter were sent to counsel for Franks, to Franks’ Shreveport office and to the Department of Conservation office in the same office building in which the writer’s office was located.

Thereafter, counsel for Franks appeared formally before the Commissioner at the July 13, 1976 hearing and requested on the record that the hearing be continued, to be reset on the next calendar of hearings scheduled for Shreveport. The fact of this continuance is supported by the Commissioner’s statement to that effect at the subsequent September 15, 1977 hearing in Shreveport, to which the matter had been continued. The record does not indicate that Brown was represented before the Commissioner on July 13, 1976.

At the hearing held by the Commissioner in Shreveport on September 15,1977 Brown was represented by his attorney who took the position that the Commissioner was without authority to conduct the hearing because Brown had not received notice and had no opportunity to make a presentation. He then offered to introduce an uncon-formed copy of an assignment and sale, which he said he would conform later. Stating that the hearing had been continued from some time back, the Commissioner inquired why counsel was not prepared. In reply counsel asserted that he had just gotten into the case the day before because his partner was in court and had been for two weeks.

At the September 15, 1977 hearing Franks established by expert testimony the feasibility of the proposed secondary recovery plan to the satisfaction of the Commissioner. On that occasion counsel for Franks also stated for the record that he had been advised by the attorney for Barnwell Production Company and Barnwell Drilling Co., Inc., that John R. Barnwell, who signed the assignment to Brown upon which Brown based its claim of interest, was without authority to do so and that the assignment was considered null and void. For that reason, he stated, Brown was not a record owner and was not given the usual notice, although Brown did have actual notice as his attorney’s letter of June 15 indicated.

Franks also introduced a unit agreement and unit operating agreement executed by in excess of 95 percent of the royalty owners, in excess of 93 percent of the overriding royalty owners and 100 percent of the working interest owners, thus satisfying the requirement that 75% of the interested owners agree in writing to the pool-wide unit. The unit agreement designated Franks as the operator.

Based on this record the Commissioner issued his order 457-EE dated September 23, 1976, effective October 1, 1977 approving the unitization and the proposed secondary recovery plan. In a letter dated October 1, 1977 addressed to the Commissioner, counsel for Brown renewed its protest to the hearing because no notice had been furnished. The letter also advised the Commissioner that suit was being instituted that day to establish Brown’s interest in the unit area, and requested that the order not be issued until that suit was resolved. A copy of the petition was enclosed.

When Brown’s attorney received the Commissioner’s order two days later, he applied for a rehearing, and by a second letter on October 8, 1976 furnished the Commissioner with a copy of an affidavit by Sharon DeFatta setting forth that she had reviewed Brown’s records and that he held more than 25 percent of the total leasehold or working interest in the unit area involved at the hearing of September 15 and affected by the Commissioner’s Order Number 457-EE.

Brown’s application for a rehearing was rejected by the Commissioner on October 18,1977 on the ground that the assignments and contracts of sale upon which Brown relied in its suit were not entered of record at the hearing, but the Commissioner assured him that if the suit decided that Franks had less than the requisite 75 percent ownership at the time the hearing was held the order would be stayed.

Brown’s suit for a declaration of his rights under the purported assignments and sale was filed in Webster Parish against Alice-Sidney Oil Company and Franks Petroleum, Inc. At the same time he instituted suit in East Baton Rouge Parish against the Commissioner to enjoin the enforcement of Order Number 457-EE until a definitive determination of his rights under the assignments in the Webster Parish suit. Franks intervened in this suit in favor of the Commissioner’s position resisting the injunction. Shortly thereafter Brown filed a supplemental and amending petition in the Webster Parish suit to enjoin Franks Petroleum, Inc., and Alice-Sidney Oil Co. from taking any action under or pursuant to the unit agreement or unit operating agreement until a final determination of the rights sought to be recognized in the Webster Parish suit. Exceptions of lack of jurisdiction and improper venue were filed by Franks and Alice-Sidney to the supplemental and amending petition for injunction. Holding that this petition for injunction was a collateral attack upon an order of the Commissioner for which the exclusive venue was in the Parish of East Baton Rouge, the trial judge sustained the exceptions to jurisdiction and venue. This ruling was affirmed on appeal. Brown v. Alice-Sidney Oil Co., La.App., 343 So.2d 745. Certiorari was denied in this Court. 344 So.2d 1056.

In the meantime, prior to the decision on the question of Brown’s interest in the unit area by the Webster Parish Court (the matter is apparently still pending), a hearing was held in East Baton Rouge Parish on the petition to enjoin the enforcement of the Commissioner’s Order. That suit resulted in a judgment in favor of the Commissioner and Pranks denying the injunction. On appeal to the First Circuit the judgment was reversed, that court holding that the Commissioner’s Order number 457-EE was void. The decision was based upon a finding that the hearing was held without notice to Brown, and the Commissioner’s order did not contain mandatory findings of jurisdictional facts upon which its issuance is conditioned. Brown v. Sutton, La.App., 349 So.2d 898. This Court granted certiorari. 350 So.2d 1217.

When the record was lodged in this Court Brown filed a motion to dismiss on December 5,1977 alleging that the Commissioner’s petition for rehearing in the Court of Appeal was not filed until fifteen days after receipt of the notice of judgment and, therefore, the judgment of the Court of Appeal became final and executory. The motion to dismiss is without merit. The Commissioner and Franks filed a joint petition for rehearing which was one day late as to the Commissioner, but timely as to Frank, they having received notice of judgment on different days.

In this posture of the case three issues are presented by the motion to dismiss and the application for certiorari and review: 1) The merits of the motion to dismiss; 2) whether the Commissioner’s Order was issued without notice; and 3) whether Section 5(C) requires that the Commissioner’s Order must contain mandatory findings of jurisdictional facts.

The motion to dismiss

Article 1091 of the Code of Civil Procedure provides that

“A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by: . . . (2) Uniting with the defendant in resisting the plaintiff’s demand . . . .”

It was pursuant to this Article that Franks sought and was allowed to intervene in these proceedings. Its intervention was without objection. Consequently Franks became a party to the litigation. As a party Franks was entitled to seek recourse by appeal to a superior tribunal for a review of its rulings and judgments. La. Code Civ.Pro. art. 2082. Even a party who could have intervened in the trial court may appeal, whether or not any other appeal has been taken. La.Code Civ.Pro. art. 2086.

An intervenor’s right to seek review by certiorari of judgments of courts of appeal is likewise well-established. Section 4450 of Title 13 of the Revised Statutes gives “any party in interest who may feel aggrieved by the judgment of the intermediate appellate court” a right to apply to the Supreme Court for a writ of certiorari, or review, to determine or consider questions of law or jurisprudence. This right of the intervenor to seek review is not dependent upon whether other parties to the litigation also seek review. State ex rel. Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976). The intervenor Franks is properly before this Court. It is therefore in order for the Court to adjudicate Franks’ rights under the contested order.

Notice

Section 5 C sets forth that the Commissioner can unitize, pool and consolidate “only after notice.” Section 6 of Title 30 authorizes the Commissioner to prescribe rules of procedure. Rule 12 of the “Rules of Procedure for Conducting Hearings Before the Commissioner of Conservation,” effective September 1, 1971, pertinently provides that “If the application relates to a poolwide unit, then a copy of the application shall be furnished each Interested Owner and Represented Party.”

Advertisement in the State-Times newspaper alone was, therefore, inadequate to satisfy the requirement of notice in this case. However, while no copy of the application was furnished to Brown initially, when Brown’s Shreveport coordinator of operations learned on May 25, 1976 that a proposed hearing was in the offing by Alice-Sidney and Franks to form a pool-wide unit .and institute a secondary recovery project, she promptly contacted the Commissioner’s District Representative in Shreveport and obtained a copy of Franks’ application. It may be inferred also that the records of the Commissioner’s District Office in Shreveport contained all documents pertaining to the matter, including the Commissioner’s notice that a hearing would be held on July 13 and Franks’ request for a continuance. With this information, a public record, it was then a simple matter to keep informed of the hearing date, either by inspection of the record of the proceeding or by ascertaining the hearing date by a phone call either in the principal office of the Commission in Baton Rouge or the District Office in Shreveport.

Notwithstanding Brown’s alleged failure to ascertain the hearing date, it is obvious from the correspondence between the attorneys of Brown and Franks that the date of the September hearing could have been, or more likely was, available to Brown’s representatives in ample time before September 15 to prepare a presentation of Brown’s position in the matter.

Counsel for Brown, as early as June 8 in the case of the letter to Brown’s General Counsel in Kansas and as early as June 15 in the ease of the letter from Brown’s Shreveport attorney to Franks’ attorney, were undoubtedly aware that a hearing was in the offing. They, too, being knowledgeable in these matters were able to keep informed of the location and time of the hearing by visiting the Commissioner’s District Office in the same Shreveport office building in which the Shreveport attorney maintained his office. A telephone call would have produced the same information.

While the attorney who did appear at the September 15 hearing professed that he was not aware of the hearing date until a day or so prior to September 15, his statement does permit the inference that his associate had knowledge of the hearing date for some time, at least two weeks prior to September 15. Brown’s counsel’s sole complaint at the hearing pertained to lack of notice, no other opposition was asserted.

Because Brown was aware that a hearing on the unitization project was forthcoming, at least since June 15, 1976, there was ample time to make proper inquiries and prepare a presentation of Brown’s position in the matter. The copy of the application received by Brown’s representative on May 25, 1976 gave the information required to prepare such a presentation.

Thus the evidence is undisputed that Brown had actual knowledge of the proposed project and that a hearing was forthcoming. Inferences and circumstances from the recited facts also support a finding that Brown’s representatives had knowledge sufficiently in advance of the specific place of the hearing and its date— in Shreveport on September 15. These facts and circumstances also support a conclusion that no prejudice resulted to Brown by reason of the failure to initially receive a copy of the application and notice of the hearing from the Commissioner.

In the case where a hearing is continued, it is apparently, in some instances, the Commissioner’s practice to consider the initial formal notice to be adequate. Those notified being expected to keep informed regarding the continuances and the date and place of the hearing to be held in lieu of the original fixing, either by attending the original hearing at which the announcement is made or by obtaining the information from the Commissioner’s office in Baton Rouge or in the district where the property is located. While such a practice may prove inadequate in some instances, this record convincingly indicates that no hardship or injustice was incurred by Brown by reason thereof. He was well-represented by competent counsel knowledgeable in this field, and presumed to be familiar with the practices before the Commission. In this instance a lack of formal notice having been cured by actual notice, it became incumbent upon Brown to keep informed.

As a general proposition, it is reasonable to expect one with knowledge of notice of an administrative proceeding affecting his rights not to stand by until the day of the hearing and then for the first time assert lack of notice. Elgin, J. & E. Ry. Co. v. Burley, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1945); Montana Power Co. v. Federal Power Comm., 87 U.S.App.D.C. 316, 185 F.2d 491 (1950), cert. denied, 340 U.S. 947, 71 S.Ct. 532, 95 L.Ed. 683 (1951); 73 C.J.S. Public Administrative Bodies and Procedure § 131.

Cases have also held that appearance in person or by attorney at an administrative hearing waives any irregularity or imperfection in the service of notice. See State ex rel. Williams v. East Baton Rouge School Board, 36 So.2d 832 (La.App.1948); Kovack v. Licensing Board, City of Waterville, 157 Me. 411, 173 A.2d 554 (1961) and McLain v. Planning Commission of City of Chico, 156 Cal.App.2d 161, 319 P.2d 24 (1957).

These principles are applicable here. It is the opinion of the Court that the requirement of notice was met.

Findings of Jurisdictional Facts in the Commissioner’s Order

With respect to the pool-wide unit involved here, Section 5 C provides:

“Any order for such a unit operation shall be issued only after notice and hearing and shall be based on findings that (1) the order is reasonably necessary for the prevention of waste and the drilling of unnecessary wells, and will appreciably increase the ultimate recovery of oil or gas from the affected pool or combination of two pools, (2) the proposed unit operation is economically feasible, (3) the order will provide for the allocation to each separate tract within the unit of a proportionate share of the unit production which shall insure the recovery by the owners of that tract of their just and equitable share of the recoverable oil or gas in the unitized pool or combination of two pools, and (4) at least three-fourths of the owners and three-fourths of the royalty owners, such three-fourths to be in interest as determined under (3) hereof, shall have approved the plan and terms of unit operation, such approval to be evidenced by a written contract or contracts covering the terms and operation of said unitization signed and executed by said three-fourths in interest of said owners and three-fourths in interest of the said royalty owners and filed with the Commissioner on or before the day set for said hearing.”

These four requirements were referred to by the Court of Appeal as the “mandatory findings of jurisdictional facts upon which its [the Commissioner’s orders] issuance is conditioned.” Because the Court of Appeal found that the Commissioner’s order did not contain these findings, it was held to be void and it was annulled.

The Commissioner’s Order Number 457-EE recites: “following legal publication and posting of notice, and notice by mail to all known interested parties,” it being “reasonably necessary to conserve the oil and gas resources of the State, to prevent waste ., to avoid the drilling of unnecessary wells and otherwise to carry out the provision of law . . .A finding that the secondary recovery would appreciably increase the ultimate recovery of oil from the affected pool is implicit in' the testimony of the experts, who appeared on behalf of Franks at the hearing and by the exhibits filed. The petroleum engineer testified that as a result of the secondary recovery project “the increased profit to the working interest is estimated to be somewhat over $15.4 million. The increase in profit to the Vsth royalty interest is estimated to be about $2.8 million.”

In addition, the petroleum engineer testified: “The future profit by primary operations will be $228,500. The estimated future profit over and above the investment and operating expenses from secondary operations is estimated to be over $15 million. . ."

Obviously, the project would “appreciably increase the ultimate recovery.” The requirement under (1) of the above quoted provision of Section 5 C was therefore supported by the record. It is hardly open to question that on this evidence the proposed unit operation is economically feasible as required by (2) above.

By an attachment to the order, including a plat and a schedule showing each tract’s size and percentage of participation, in the production to be realized from the unit, the requirement of (3) is satisfied. That part mandates that the order provide for the allocation to each tract within the unit of a proportionate share of the unit production, insuring to the owners their equitable share of the production.

A specific finding in the order fulfills the requirement of (4) pertaining to the 75 percent requirement, viz.:

“The Commissioner of Conservation finds as follows:
“2. That the applicant has offered and introduced into evidence at the public hearing a Unit Agreement ratified and executed by the owners of more than seventy-five (75%) per cent of the total royalty interest and more than seventy-five (75%) per cent of the total leasehold or working interests in the field. That the applicant has also offered and introduced into evidence a Unit Operating Agreement which has been executed and ratified by the owners of more than seventy-five (75%) per cent of the total leasehold or working interests in the field.”

Although counsel for Brown contends that he introduced an unconformed act of assignment at the September 15 hearing which evidenced the fact that Brown owned more than a 25 percent interest in the proposed unit, the Commissioner found the document was not in the record. At the time when counsel purported to introduce the assignment, however, he did not state the percentage of interest the assignment conferred on Brown. Considering this fact, the unauthenticated character of the assignment, and the statement of Franks’ attorney in the presence of Brown’s attorney that the assignment was not executed by one authorized to sign (a fact not disputed at the hearing), the finding of the Commissioner is neither arbitrary or capricious.

Although some of the evidence which supports all four of the mandatory conditions which must be satisfied for issuance of a valid order are not contained in the order itself, the conditions are in fact supported by the record. Due to the fact that none of these mandatory conditions were contested at the hearing, except notice, failure to include some of these findings in the order itself involves no prejudice to Brown, the only party complaining of the order’s invalidity. And, as our determination on the notice issue resulted in a finding that there was no lack of hotice, all of the mandatory conditions to the issuance of the order have been fulfilled. Principally, the findings are articulated in the order itself.

Order number 457-EE was therefore based upon the findings made mandatory by Section 5 C.

A contrary decision would sometimes follow in a situation where a finding was not contained in the order with respect to a mandatory condition which had been contested and where the Commissioner’s expertise should have been employed in a finding to resolve the contradictions in the evidence.

Proper regard for the rightful concern of interested parties where valuable rights to oil and gas are involved makes desirable that the State’s power be exercised only where the statutory authority affirmatively appears. The sacrifice of these legitimate interests may as readily result through the Commissioner’s oversight or neglect as by improper findings. The insistence that the Commission make these jurisdictional findings before it undertakes to act not only gives added assurance that these valuable interests for which the legislature enacted these safeguards will be observed, but it also gives to the reviewing courts the assistance of an expert judgment on a knotty phase of a technical subject. City of Yonkers v. United States of America, 320 U.S. 685, 64 S.Ct. 327, 88 L.Ed. 400 (1943).

Administrative proceedings involving a similar problem were the subject of a caveat to administrative bodies by this Court in the recent decision of Baton Rouge Water Works v. Louisiana Public Service Commission, 342 So.2d 609 (1977):

“For purposes of judicial review, and in order to assure that the Commission has acted in accordance with law, it is usually preferable that, in a contested case involving complex issues, the administrative agency makes findings as to the central disputed issues and explain the reasons for its determination. Cf.: Louisiana Power and Light Co. v. Louisiana Public Service Commission, 324 So.2d 430 (La.1975); White v. Louisiana Public Service Commission, 259 La. 363, 250 So.2d 368, 373 (1971); Hunter v. Hussey, 90 So.2d 429 (La.App. 1st Cir. 1956), certio-rari granted. ‘It is enough if the Commission proffers findings and conclusions sufficiently detailed to permit reasoned evaluation of the purposes and implications of its order.’ In re Permian Basin Area Rate Cases, 390 U.S. 747, 814, 88 S.Ct. 1344, 1384, 20 L.Ed.2d 312 (1968). See also 2 Davis, Administrative Law Treatise, Chapter 16 (1958); 2 Cooper, State Administrative Law 465-78 (1965); Schwartz, Administrative Law, Sections 140, 141 (1976).
“We have not before now, however, held that such formal findings and reasons are sacrosanct to the validity of an administrative determination, unless required by statute. Nevertheless, Louisiana courts have on occasion remanded for this purpose, when unable to review the agency determination in the absence thereof. See Louisiana decisions cited in the preceding paragraph.”

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside, and Order number 457-EE of the Commissioner of Conservation is declared valid. Brown’s attack upon the order is therefore dismissed at its cost.

      . La. R.S. 30:5(C):
      “Without in any way modifying the authority granted to the commissioner of Subsection B of Section 9 of this Title to establish a drilling unit or units for a pool and in addition to the authority conferred in Subsection B of this Section, the commissioner of conservation, upon the application of any interested party, also is authorized and empowered to enter an order requiring the unit operation of any pool or a combination of two pooqls in the same field, productive of oil or gas, or both, in connection with the institution and operation of systems of pressure maintenance by the injection of gas, water or any other extraneous substance, or in connection with any program of secondary recovery; and the commissioner is further authorized and empowered to require the unit operation of a single pool in any situation where the ultimate recovery can be increased and waste and the drilling of unnecessary wells can be prevented by such a unit operation. In connection with such an order of unit operation, the commissioner shall have the right to unitize, pool and consolidate all separately owned tracts and other property ownerships. Any order for such a unit operation shall be issued only after notice and hearing and shall be based on findings that (1) the order is reasonably necessary for the prevention of waste and the drilling of unnecessary wells, and will appreciably increase the ultimate recovery of oil or gas from the affected pool or combination of two pools, (2) the proposed unit operation is economically feasible, (3) the order will provide for the allocation to each separate tract within the unit of a proportionate share of the unit production which shall insure the recovery by the owners of that tract of their just and equitable share of the recoverable oil or gas in the unitized pool or combination of two pools, and (4) at least three-fourths of the owners and three-fourths of the royalty owners, such three-fourths to be in interest as determined under (3) hereof, shall have approved the plan and terms of unit operation, such approval to be evidenced by a written contract or contracts covering the terms and operation of said unit-ization signed and executed by said three-fourths in interest of said owners and three-fourths in interest of the said royalty owners and filed with the commissioner on or before the day set for said hearing. The order requiring the unit operation shall designate a unit operator and shall also make provision for the proportionate allocation to the owners (lessees or owners of unleased interests) of the costs and expenses of the unit operation, which allocation shall be in the same proportion that the separately owned tracts share in unit production. The cost of capital investment in wells and physical equipment and intangible drilling costs, in the absence of voluntary agreement among the owners to the contrary, shall be shared in like proportion; provided that no such owner who has not consented to the unit-ization shall be required to contribute to the costs or expenses of the unit operation, or to the cost of capital investment in wells and physical equipment and intangible drilling costs, except out of the proceeds of production accruing to the interest of such owner out of production from such unit operation. However, no well costs credit allowable shall be adjusted on the basis of less than the average well costs within the unitized area. It is provided, however, that the order requiring unit operation shall not vary nor alter any of the terms of the above required written contract or contracts evidencing approval nor impose any terms or operations upon the non-signers of said contract or contracts more onerous than the terms and operations set out in said contract or contracts.
      “No order of the commissioner entered pursuant hereto shall have the effect of enlarging, displacing, varying, altering or in anywise whatsoever modifying or changing contracts in existence on the effective date of this Act concerning the unitization of any pool (reservoir) or pools (reservoirs) or field (as defined in said contract) for the production of oil or gas, or both.”


source: Caselaw Access Project

author: MARCUS, Justice. TATE, Justice, DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana v. Tyronne MITCHELL.
    No. 60661.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.

      Horace P. Rowley, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Vincent Paciera, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Tyronne Mitchell was charged by the grand jury in the same indictment with three separate counts of aggravated rape in violation of La.R.S. 14:42. After trial by jury, defendant was found guilty as charged on counts one and three and guilty of forcible rape on count two. The trial judge sentenced defendant to death on counts one and three and to imprisonment at hard labor for twenty years, with credit for time served, on count two. Subsequently, the trial judge annulled and set aside the death sentences and resentenced defendant to serve twenty years at hard labor on count one and fifty years at hard labor on count three, both sentences with credit for time served. The court further ordered that the sentences on all three counts run concurrently. On appeal, defendant relies on nine assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant claims reversible error based on the fact that an assistant city attorney represented him at trial.

Defendant was represented at trial by retained counsel, Mr. Arthur L. Harris, Sr. Apparently, Mr. Harris also held a position as an assistant city attorney, assigned to prosecute cases in traffic court. After trial, Mr. Harris filed and was granted a motion to withdraw as counsel of record on the ground that defendant was financially unable to retain an attorney on appeal and wished to be represented by the indigent defender board. New counsel was appointed to represent defendant on appeal.

La.Const. art. 5, § 26(C) provides:

Prohibition. No district attorney or assistant district attorney shall appear, plead, or in any way defend or assist in defending any criminal prosecution or charge. A violation of this Paragraph shall be cause for removal.

La.Code Crim.P. art. 65 provides in pertinent part:

It is unlawful for the following officers or their law partners to defend or assist in the defense of any person charged with an offense in any parish of the state:
(1) Any district attorney or assistant district attorney .

La.Code Crim.P. art. 934(5) provides:

Except where the context clearly indicates otherwise, as used in this Code:
‘District Attorney’ includes an assistant district attorney, and where the prosecution is in a city court, includes the prosecuting officer of that court.

The law clearly prohibits a district attorney or his assistant from defending or assisting in the defense of any criminal prosecution. La.Const. art. 5, § 26(C); La. Code Crim.P. art. 65. Where the prosecution is in a city court, the prosecuting officer of that court is considered a district attorney and is thus included within that prohibition. La.Code Crim.P. art. 934(5). However, the prosecuting officer of a city court is not included within the definition of district attorney for purposes of prosecutions in courts other than a city court and, therefore, is not included within the prohibition. Hence, the assistant city prosecutor is not prohibited from defending a criminal prosecution in the state district court. Additionally, we note that Mr. Harris was retained counsel and that defendant does not even allege he was unaware that Mr. Harris was also an assistant city attorney. Also, the record reflects that defendant was effectively represented by Mr. Harris. Under these circumstances, we find no possible prejudice to the rights of defendant. Hence, Mr. Harris’ representation of defendant at trial in the state district court was not improper.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in admitting in evidence a photograph of a lineup at which defendant was identified by the victims of two of the alleged rapes. Defendant argues that the fairness of the lineup was not at issue and, therefore, the photograph was irrelevant.

La.R.S. 15:441 provides:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

The photograph of the lineup was admissible in the instant case to explain a relevant fact, i. e., that two of the rape victims identified defendant as their assailant from among several men of similar appearance. This fact was relevant to the issue of identity which was contested by defendant. The admissibility of a photograph of the lineup is not dependent upon the defendant contesting the fairness thereof. See, State v. Valentine, 262 La. 571, 263 So.2d 893 (1972). Hence, the trial judge did not err in admitting in evidence the photograph of the lineup.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for a severance of the three aggravated rape offenses charged in the indictment.

Defendant filed a pretrial “Motion to Quash — Prejudicial Joinder” requesting a separate trial on each of the three offenses charged in the indictment. After a hearing, the motion was denied.

When an accused has been charged in the same indictment with two or more offenses pursuant to La.Code Crim.P. art 493, he may apply for a severance of offenses under La.Code Crim.P. art 495.1 which 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.

Two critical questions must be determined by the trial judge presented with a motion for severance of offenses. First, he must decide “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.” La.Code Crim.P. art. 495.1; State v. Holstead, 354 So.2d 493 (La.1977); State v. Proctor, 354 So.2d 488 (La.1977). A second question to be decided is whether the offenses joined because they are of the “same or similar character” under La.Code Crim.P. art 493 (as opposed to “same transaction” or “common plan” joinder) are admissible as similar acts under La.R.S. 15:445 and 446. State v. Holstead, supra; State v. Carter, 352 So.2d 607 (La.1977).

In relation to the first question, in deciding whether the complexity of the evidence warrants severance of the offenses, an appellate court evaluating the trial judge’s denial of defendant’s motion will examine the case for various problems:

Some of the dangers inherent in a multiple offense joinder situation are that 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.

State v. Proctor, supra. Also cited in State v. Holstead, supra.

In the instant case, defendant was charged in the same indictment with committing on separate occasions aggravated rape of three women. The state’s evidence consisted primarily of the testimony of the three victims describing in clear and simple terms occurrences largely similar in nature. Moreover, since all charges were for a violation of the same statute (La.R.S. 14:42), there should have been no confusion in the application of the law to the various incidents. . Under these circumstances, we find that the non-complex nature of the evidence and the singularity of the applicable law rendered the case appropriate for trial in a joined situation. We therefore find in this case that the trier of fact could compartmentalize the evidence and apply the law intelligently as to each offense and that defendant was not unfairly convicted on the basis of prejudice or confusion instead of on the evidence of his crimes. La.Code Crim.P. art. 495.1; State v. Holstead, supra; State v. Proctor, supra.

We next consider whether the offenses joined under La.Code Crim.P. art. 493 because they are of the “same or similar character” are admissible as similar acts under La.R.S. 15:445 and 446. State v. Holstead, supra; State v. Carter, supra. In order to be admissible under this exception, the other crimes must first be so distinctively similar as to preponderantly demonstrate that their perpetrator must be the same person. State v. Jackson, 352 So.2d 195 (La.1977); State v. Slayton, 338 So. 694 (La.1976); State v. Waddles, 336 So.2d 810 (La.1976). The proof of the other crimes must also be relevant to prove a fact of consequence to the accused’s present innocence or guilt (independent of the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one). State v. Jackson, supra; State v. Frederick, 340 So.2d 1353 (La.1976). Finally, the probative value of the evidence of the other crime must outweigh its prejudicial effect. State v. Jackson, supra; State v. Ledet, 345 So.2d 474 (La.1977); State v. Moore, 278 So.2d 781 (La.1973) (on rehearing).

In the instant case, the three alleged rapes, occurring over a five-month period, exhibit almost identical modus operandi. Each of the three victims were initially approached by their assailant near the Algiers ferry landing at the end of Canal Street. All three incidents occurred during the mid-morning hours when the ferry traffic is light. On each occasion, the assailant initiated contact with his victim by asking her for small change. Thereafter, each of the three victims was forced by various methods to leave the ferry area with their assailant and was initially raped within a short distance thereof, near the riverfront. All three of the victims were eventually released by their assailant. We consider that the modus operandi of the three offenses is so peculiarly distinctive that one must logically say that they are the work of the same person, i. e., they are “signature crimes.”

Next, we must determine whether the evidence of other crimes is relevant to prove a fact of consequence to defendant’s innocence or guilt. Defendant admits that the identity of the assailants was a principal issue at the trial.

During trial, defendant offered the testimony of two alibi witnesses, Frazeana Mitchell and her daughter, Debra Ann Thompson. These two women testified that defendant cared for Ms. Thompson’s child at Ms. Mitchell’s home on Saturdays and Sundays during the time of the first two rapes. (The first two rapes were allegedly committed on Saturday, August 9, 1975, and on Sunday, October 19, 1975.) Defendant also introduced misidentification evidence through the testimony of two witnesses. Lowary Bartney, Sr., a private investigator, testified that he showed a photograph of defendant and Ms. Thompson to Rudolph M. Schulz of the Mississippi River Bridge Authority Police Department. Mr. Bartney stated that Officer Schulz identified the man in the photograph as Leon Sanders, not as defendant. Officer Schulz testified that the man in the photograph looked like a person named Leon Sanders, “one of the locals over in Algiers,” or another person with whom they had experienced problems on the ferry.

Clearly, identification of defendant as the assailant in each of the offenses charged was a serious issue at the trial of this matter. The evidence of the other crimes was relevant to that issue in the proof of each offense. The showing of an almost identical modus operandi and the identification of defendant as the assailant in the other two offenses strengthens identification in each of the three rape charges. Additionally, defendant admits that the degree of the offenses was also a principal issue at the trial. The testimony of each victim regarding the force used by the assailant in each rape offense strengthens the testimony of the others on that issue. Hence, the evidence of the other two offenses was relevant to prove facts of consequence (identity and use of force) to defendant’s guilt or innocence on each of the offenses charged in the indictment.

Finally, the probative value of the evidence of each rape, relating to the proof of identity and use of force in the other two offenses, clearly outweighs its prejudicial effect. Hence, the offenses joined in the indictment would be admissible as similar acts under La.R.S. 15:445 and 446. Accordingly, the trial judge did not err in denying defendant’s pretrial motion for a severance of offenses.

Defendant reurged his motion for severance of offenses at the close of the state’s case-in-chief. See, La.Code Crim.P. art. 495.1(b). At this point, the trial judge was aware of the non-complex nature of the evidence and thus was in a better position than he was prior to trial to determine the merits of defendant’s motion. Applying the same guidelines to appellate review as to a denial of a pretrial motion for severance of offenses as well as reviewing the record as of the point during trial at which the motion was made, we are conyinced that the trial judge did not err in denying defendant’s motion for severance of offenses at the close of the state’s case-in-chief.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in allowing in evidence certain testimony relative to the history of a ring seized from, defendant. He argues that this testimony was irrelevant and improperly reflected upon the character of defendant.

During trial, Officer Catalino Melendez identified a high school class ring recovered by him from defendant’s coat pocket at the time of his arrest. The victim of the third alleged rape testified that her assailant showed her a 1974 Chalmette High School class ring with the initials “M.A.D.” on it, which ring defendant had removed from his pocket. Officer Debra Langla testified that she personally checked the records at Chal-mette High School and discovered that only two students from the class of 1974 had the initials “M.A.D.” She stated that one of the students had possession of his ring whereas the other student, Michael Anthony Dugas, did not have his ring. Mr. Dugas testified that he had given his ring to his girlfriend, Roxanne Malero. Ms. Malero testified that she had lost the ring while shopping on Canal Street. Both Mr. Dugas and Ms. Malero identified the ring taken from defendant and produced at trial as Mr. Dugas’ ring.

The record reveals no objection was made to the testimony given by these witnesses. Moreover, no objection was made at the time the ring was introduced in evidence. In the absence of a contemporaneous objection, an alleged error or irregularity in the proceedings cannot be availed of after verdict. La.Code Crim.P. art. 841; State v. Williams, 343 So.2d 1026 (La.1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975). In any event, the testimony concerning the ring was relevant to the issue of identity by showing that the ring taken from defendant at the time of his arrest was the only one of its kind unaccounted for and was, therefore, the same ring shown to the victim of the third alleged rape by her assailant. Moreover, there is no indication in the record that the ring was stolen by defendant. Hence, the testimony about the ring did not improperly reflect upon defendant’s character.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in allowing in evidence the testimony of the arresting officers relative to the fact that defendant fit the description of the rape suspect which was broadcast over the police radio. He argues that this testimony was hearsay.

During trial, while Officer Melendez, one of the arresting officers, was testifying concerning a call received over the police radio prior to his arresting defendant, defendant objected to the admission of any testimony about the content of the call. Subsequently, defendant’s specific objection to the officer’s testimony relating to the description of the rape suspect broadcast over the police radio was sustained. However, defendant made no objection to Officer Melendez’ later testimony describing the person he arrested as fitting the description of the suspect received over the police radio. Nor did defendant object to the testimony of Officer Robert Breaux, the other arresting officer, that the person arrested had the same appearance as the description of the suspect given over the police radio. Defendant argues that the state by this line of questioning was able to indirectly get the description of the rape suspect given over the police radio before the jury.

It is well settled that, in the absence of a contemporaneous objection, an alleged error or irregularity in the proceedings cannot be availed of after verdict. La.Code Crim.P. art. 841; State v. Williams, 343 So.2d 1026 (La.1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975). However, even assuming that defendant’s original objection to any testimony about the content of the call was adequate to preserve the present issue for review, the assignment lacks merit.

A well-settled rule is that evidence is non-hearsay which is offered not to prove the truth of the facts recited, but to prove that the utterances occurred. State v. Cass, 356 So.2d 936 (La.1977); State v. Williams, 341 So.2d 370 (La.1976); State v. Monk, 315 So.2d 727 (La.1975); State v. White, 301 So.2d 321 (La.1974). In the instant case, whether or not the arresting officers testified as to the description of the rape suspect broadcast over the police radio is of no moment as this testimony was not hearsay because it was offered to prove only that the description was given, thereby prompting the officers to arrest defendant, and not to prove the truth of the description. Hence, the trial judge did not err in admitting the testimony in evidence.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred when he excused for cause nine jurors challenged by the state based on their sentiments regarding the death penalty.

The record reveals that no objection was made to the excusal of the jurors. In the absence of a contemporaneous objection, an alleged error or irregularity in the proceedings cannot be availed of after verdict. La. Code Crim.P. art. 841; State v. Williams, 343 So.2d 1026 (La.1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975).

In any event, this assignment lacks merit. La.Code Crim.P. art. 798 provides in pertinent part:

It is good cause for challenge on the part of the state, but not on the part of the defendant, that: . . .
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt .

This article was amended to conform with the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), wherein the United States Supreme Court held that the exclusion of prospective jurors in a capital case who merely expressed conscientious or religious scruples against capital punishment violates an accused’s constitutional rights under the sixth and fourteenth amendments with respect to the jury’s role as arbiter of the punishment to be imposed. On the other hand, the Court found no constitutional bar to excluding jurors who stated in advance of trial that they could not return a verdict of guilty under any circumstances, regardless of the proof at trial.

After carefully examining the record of voir dire examination, we are satisfied that each of the nine jurors, after questioning by both the state and defendant, were properly excused in strict compliance with the standards set out in Witherspoon and La.Code Crim.P. art. 798(2). The responses made by these prospective jurors clearly indicated that, regardless of the evidence, they would not concur in a verdict of “guilty of aggravated rape” because of their refusal to apply the death penalty required by statute upon conviction.

Moreover, the mandatory death penalty provision of our aggravated rape statute was invalidated by the United States Supreme Court decision in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). In the instant case, the trial court annulled and set aside the death sentences on counts one and three and resen-tenced defendant to specified prison terms on those counts. We have uniformly held that a defendant insulated from the death penalty has no valid Witherspoon complaint. State v. Boss, 343 So.2d 722 (La.1977); State v. Nicolaus, 340 So.2d 296 (La.1976); State v. Hunter, 340 So.2d 226 (La.1976); State v. Miles, 339 So.2d 735 (La.1976); State v. Rester, 309 So.2d 321 (La.1975).

Assignment of Error No. 9 is without merit.

Defendant contends for the first time in brief to this court that the trial judge erred by selecting the jury panel in violation of La.Code Crim.P. art. 784. He argues that the names of prospective jurors were not “drawn from the petit jury venire indiscriminately and by lot in open court” but, rather, were called in the order appearing on the jury panel sheet. Defendant further argues that, although no contemporaneous objection was made to the alleged error, the issue can be considered on appeal as error patent on the face of the record.

First, we reject defendant’s contention that the alleged error is one “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.P. art. 920(2). Clearly, the system used to call names of prospective jurors is not discoverable by a mere inspection of the pleadings and proceedings. Rather, an inspection of the evidence would be necessary. Hence, the alleged error or irregularity cannot be considered on appeal unless it was objected to at the time of occurrence and designated as error in the assignment of errors. La. Code Crim.P. arts. 841, 845 and 920(1).

In any event, the assignment lacks merit. This court stated in State v. Hoffman, on rehearing, 345 So.2d 1 (La.1977):

In the instant case, the jury panel was not selected in compliance with La.Code Crim.P. art. 784. Prospective jurors were called by the trial judge in the order that their names appeared on the jury panel sheet compiled by the Jury Commission. Clearly, the panel was not drawn indiscriminately and by lot in open court as mandated by law. Hence, defendant’s objection is well founded and we conclude that his conviction and sentence must be reversed. We cannot say, however, that the violation complained of herein is one which affects the determination of guilt or innocence in this case. Accordingly, having authoritatively construed and reconciled La.Code Crim.P. arts. 409.1 and 784 for the first time and contrary to the prior construction placed on these articles by a majority of the judges of the Criminal District Court for the Parish of Orleans, we have determined that the interests of the administrative of justice would best be served by giving this decision prospective application only to those eases wherein a jury panel is selected after this opinion becomes final except those cases which have already been submitted to this court for decision. (Emphasis added.)

Defendant argues that the instant case was “submitted” to this court prior to rendition of Hoffman because the order of appeal was signed prior to Hoffman, thus vesting this court with jurisdiction over the case.

La.Sup.Ct.R. 5, § 1 states: “Motions to be made in open court shall be made at the beginning of the daily session, before the first case is called for argument or submission.” (Emphasis added.) Rule 6, § 6 states: “Any case docketed in this court may be submitted at any time for decision without oral argument, on a joint motion to that effect signed by all parties to the suit or their attorneys of record.” (Emphasis added.) See also, La.Sup.CtR. 3, § 2 and R. 7, § 11. It is clear that, in Hoffman, the term “submitted” to this court signifies that stage of appellate proceedings at which both parties have either exercised or waived their rights to orally argue the case. The term does not signify, as defendant contends, the date on which the order of appeal is rendered.

Defendant, however, further contends that there was unreasonable delay in lodging the record on appeal, preventing the instant case from being argued and “submitted” to this court prior to Hoffman. We find no merit to this contention. Defendant admits that no objection was made at the time the prospective jurors’ names were called because Hoffman had not yet been decided. Hence, even had the record in the instant case been prepared, lodged, argued and submitted prior to this court’s decision in Hoffman, the alleged error would not have been reviewable by this court in absence of defendant’s objection to the alleged error or irregularity at the time of its occurrence.

DECREE

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

TATE, J., dissents and assigns written reasons.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents. State v. Moore, 278 So.2d 781 (La.1972) is pertinently indistinguishable.

TATE, Justice,

dissenting.

I respectfully dissent. In my opinion, the state improperly joined in one trial three charges of rape, which although similar in circumstances of commission were widely separated in time.

Initially, I might state, some concern was felt by the writer that State v. Carter, 352 So.2d 607 (La.1977) should perhaps not be applied retrospectively. Carter held that the test for severance, when two crimes of the same or similar character are joined in the same indictment, La.C.Cr.P. art. 492, is whether these crimes would be admissible under the Prieur test as other-crime evidence in the trial of each offense charged, if tried separately.

Under the Prieur test, for reasons to be stated, the respective rapes are not admissible as other-crime evidence to prove guilt of a rape other than the one charged. Arguably, strict requirement of Prieur compliance might not be required in the decision of this severance question, especially since the present case was tried before Carter clarified the guidelines. Nevertheless, I ultimately conclude that the defendant did not receive a fair trial because of the join-der in a single trial of three charges of rapes over a period of several months. Were the present prosecution for just one of the three rapes, plainly in my opinion, the evidence of the other two rapes is not admissible.

Since neither intent nor guilty knowledge is at issue in a rape prosecution, the only arguable ground for Prieur admissibility (and therefore for denial of a motion to sever under La.C.Cr.P. art. 495.1) is the “system” exception. Recently, in State v. Jackson, 352 So.2d 195 (La.1977), the court reviewed the jurisprudence which has grown from that exception. In order to be admissible, the other crime must be committed in close proximity to the charged offense, both in time and place. See State v. Jones, 332 So.2d 466 (four days apart at the same location); State v. Price, 325 So.2d 780 (La.1975) (series of five robberies, within three weeks, of drivers for certain beverage distributor; State v. Vince, 305 So.2d 916 (La.1974) (three weeks apart in same general area); State v. Lawrence, 294 So.2d 476 (La.1974) (sixteen days apart on same street). The crimes must also be “so peculiarly distinctive that one must logically say that they are the work of the same person.” State v. Lee, 340 So.2d 1339, 1345 (concurring opinion of Justice Dennis) quoted in State v. Jackson, 352 So.2d at 196. Finally, the evidence of the other crime must be relevant to prove a fact of consequence in the instant prosecution, and the probative value of the evidence must outweigh its prejudicial effect.

In the present case, the circumstances surrounding the three rapes were highly similar, and the crimes might possibly be classified as so alike that they amount to the “signature” of the criminal. But that is only the first hurdle this evidence must clear in order to be admissible.

An initial difficulty is the question of proximity in time among the offenses. None of the cases listed have involved a span of longer than three weeks, whereas the present case involves a span of five months. The evidence must also be shown to be so probative of a fact of consequence that its relevancy outweighs its prejudicial effect. A dual inquiry is thus involved: whether identity, which this “system” evidence tends to prove, is a fact of consequence and whether the need for probative evidence of identity is so great as to justify admitting this highly prejudicial evidence. Whether identity is a fact of consequence depends upon the clash of evidence before the jury.

Each of the victims positively identified the defendant as her attacker, and their identifications were unshaken by cross-examination. The bulk of the defendant’s case was the testimony of security guards who were on duty on the days of the rapes in the buildings within which they allegedly took place. They all testified that they had noticed no disturbances in the buildings, although the force of that testimony was substantially weakened by their admission that they might have been out of the building, in the bathroom, on patrol, etc., and that absence could account for their failure to notice any disturbances. In any case, this part of the defendant’s case tended to show that no crimes took place and that the prosecutrices were lying. The evidence was not offered to show that the defendant was not the rapist.

The defendant did, however, offer an alibi by means of two witnesses, his girlfriend and her mother. The latter testified that on Saturdays and Sundays, when her daughter was at work, the defendant would spend all day attending her daughter’s baby. She testified that this regimen continued during the entire period within which the rapes occurred. Her daughter was put on to testify to the same effect, but since defendant’s whereabouts on those days was admittedly beyond her personal knowledge, the testimony was objected to and excluded.

Considering each rape in isolation (and the other two as the proposed “other crimes” evidence), the evidence as to the defendant’s guilt was a positive identification by the victim against an attack on the victim’s credibility and a relatively weak alibi (because unsupported by defendant’s own testimony). In fact, the alibi testimony could more properly be characterized as supportive of a general defense alleging prosecutorial conspiracy than as evidence designed to put at issue the identity of the perpetrator of an admitted offense. The thrust of the defendant’s case was, “I’m an innocent babysitter, who’s being framed by three lying witnesses.” In this light, his offering of an alibi should not be considered to raise the issue of identity of the offender to a “fact of consequence.”

Some instruction is offered by comparison to earlier cases in which identity was found to be an important issue. In State v. Ballard, 351 So.2d 484 (La.1977), the victim testified that his robber partially hid his face with a handkerchief, and the identification was therefore subject to strong attack. As aforementioned, this is not the case here, since each of the victims got a long clear look at her attacker and each declared herself “positive” that the defendant was the rapist. In State v. Vince, 305 So.2d 916 (La.1974) the court merely observed that “identification of the defendant was a serious issue.” 305 So.2d at 922. While not clear from the discussion, presumably the nature of the evidentiary clash put at issue the identity of the perpetrator of an admitted offense.

Even if the identity issue is considered as a “fact of consequence,” it is highly questionable that the need for probative testimony was so great that it outweighed the prejudicial effect of this evidence. Clearly, whatever else this “system” evidence might prove, it impressed upon the jury the fact that three women were willing to identify the defendant positively as a rapist. The effect of this testimony is synergistic, and it is precisely this effect which Prieur sought to avoid. It is simply less likely that three women would falsely accuse a man of rape than that one would, and therefore a defense based on attacking the prosecu-trix’s credibility is substantially weakened by the admission of the other crimes evidence.

For these reasons, it is the writer’s belief that prejudicial, and therefore reversible, error was committed in denying the defendant a severance both as to his pretrial and his trial motions.

DIXON, Justice

(dissenting).

I respectfully dissent.

A reading of the testimony discloses clearly that, although the offenses occurred in the same vicinity and the approach to the victims was similar, these were not “signature” crimes.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 2, 4 and 7. Therefore, we consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.R.S. 15:445 provides:
      In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.
      La.R.S. 15:446 provides:
      When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.

      . In State v. Hoffman, 345 So.2d 1 (La.1977), where a similar issue as presented here was reviewed by this court, defendant objected to the alleged procedure before the first prospective juror was called on voir dire examination. Moreover, he made his objection general as to each juror selected and sworn. Hence, in Hoffman, it was unnecessary to reach the contention raised here.

      . The writer is indebted to the defendant’s brief for this term. A synergism is “cooperative action of discrete agencies such that the total effect is greater than the sum of the effects taken independently.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Ernest L. FELTON.
    No. 60803.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.
    Jim W. Wiley, Winnfield, Robert L. Kennedy, Colfax, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., B. G. Lutes, Dist. Atty., Philip G. Hunter, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On April 1, 1977, Ernest Felton was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After a trial by jury, he was found guilty as charged and was sentenced to serve six years at hard labor. On this appeal, defendant relies upon four assignments of error for reversal of his conviction and sentence.

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

DECREE

The conviction and sentence are affirmed.


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

text:
    STATE of Louisiana v. Leon ANGEL.
    No. 60815.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.
    Tate, J., filed opinion concurring in denial of application for rehearing.

      C. R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., S. Michael Henry, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

After an adverse ruling on his Motion to Suppress tangible evidence, defendant pleaded guilty to possession of marijuana with intent to distribute and possession of cocaine. In pleading guilty, defendant reserved his right to seek appellate review of the ruling on his motion to suppress. See State v. Crosby, La., 338 So.2d 584 (1976). The court sentenced defendant to three years’ imprisonment on each charge, the sentences to run concurrently.

In his Motion to Suppress, defendant alleges that the evidence seized was the product of an illegal arrest and unconstitutional search.

The arrest, search, and seizure complained of occurred in the following factual context:

Officer Delphin of the Natchitoches Police Department received information on November 30, 1976, from a confidential informant that two men, Timothy Koen and Timothy Mosley, would drive a 1966 red Ford pickup truck to Natchitoches. The informant gave the license number of the truck to Officer Delphin and alleged that the truck would contain a large quantity of marijuana, cocaine, and quaaludes. Officer Delphin checked the license number given to him and found that the truck belonged to Mosley. According to the informant, the truck was to arrive either on December 1st or 2nd at either 225 Duplex Street or the University Shopping Center in Natchitoch-es.

Officers Delphin and Dison “staked out” the area described by the informant from about 3:30 to 10:00 p. m. on December 1, 1976. The “stake out” was fruitless.

The same informant again called Officer Delphin on December 2nd and told the officer that the truck would be arriving in Natchitoches that day at 225 Duplex Street. At this time, the informant told Officer Delphin that a blue or blue and white Ford car would be following the truck. At approximately 8:00 p. m. that same day, the informant again called Officer Delphin and told him that the driver would be Leon Angel, the defendant.

On the basis of this information, Officer Delphin and five other officers undertook a surveillance of the Duplex Street address and University Shopping Center areas. An officer near the University Shopping Center observed the pick-up truck and Ford automobile drive into the shopping center. After one of the individuals made a telephone call from the shopping center, the two vehicles proceeded to 225 Duplex Street and parked the vehicles.

When the three individuals alighted from their vehicles, the policeman approached them, frisked them, and required them to lie on the ground and be handcuffed. They were advised that they were under investigation for possession of narcotics and were advised of their Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), “rights.” After informing him that he could refuse to give his permission, the officers asked Mosley for permission to search the truck he was driving. Although Mosley gave his oral permission at this time, the police did not search the vehicle on the scene. Rather they had the truck and the car towed to the police station.

At the police station, the police again informed Mosley of his rights and requested his permission to search the truck, once again advising him of his right to refuse permission. He then gave his consent in written form. The police asked Angel, the present defendant, for permission to search the Ford automobile he had been driving. Stating that they would have to obtain a search warrant for his vehicle, he refused permission.

The search of the truck yielded various types of drugs in suitcases. The police also found quaalude tablets, and a substance thought to be cocaine on Mosley and several marijuana cigarettes on another defendant. At this point, Officer Dison applied for a search warrant to search defendant’s automobile on the basis of the following affidavit:

“THAT A SEARCH WARRANT SHOULD BE ISSUED FOR THE SEARCH OF A 1975 Ford Elite bearing Texas license # MLA 795 being driven ■by Leon Angel

FOR THE FOLLOWING REASONS:

“Today the 2nd of December Officers Delphin and I received information that a large quantity of Cocaine and Marijuana was being brought to Natchitoches tonight from Shreveport. This information was obtained from a confidential reliable informant. The informant also said they were to bring the drugs to 225 Duplex St. in the city of Natchitoches. The informant described the vehicle as being a red pick up truck and a Ford car.
“A surveillance of the house was begun at approximately 9:00 P.M. At 11:20 P.M. a truck and a car were observed stopping and parked in front of 225 Duplex. These subjects were taken into custody and brought to headquarters. The vehicles were also brought there.
“A large amount of Cocaine was found on the person of Timothy Mosley the driver of the truck. Marijuana was found Timothy Koen, a passenger in the truck. A brief case belonging to Koen was also searched and revealed a large amount of Cocaine.
“Due to the information and the drugs being found on the first two subjects, it is our belief that illegal drugs are being concealed in this car. Leon Angel was asked to give us permission to search his car but he refused.”

The search of defendant’s automobile pursuant to a warrant, issued on the basis of the above affidavit, produced a large quantity of marijuana and other drugs in suitcases.

Defendant argues that the trial judge erred in denying his motion to suppress on the grounds that: (1) the subjects’ arrests were illegal; and (2) any evidence obtained after the illegal arrest was “fruit of the poisonous tree” and rendered any warrant to search his automobile fatally defective.

We agree that defendant’s original arrest at 225 Duplex Street was illegal. The three individuals were taken into custody on Duplex Street; this constituted arrest. LSA-C.Cr.P. art. 201. At the time defendant and his two associates were arrested without a warrant, no probable cause existed for an arrest. State v. Joseph, La., 351 So.2d 1162 (1977), and cases therein cited. Defendant, however, is in error in contending that any search made after an illegal detention or arrest is, per se, invalid.

A valid consent to search is a well recognized exception to the requirement of a valid search warrant; a search pursuant to a voluntary consent need not be based on probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We have heretofore determined that a voluntary consent to search, given after an illegal detention, is valid under circumstances which show no exploitation of the illegality. State v. Baker, La., 338 So.2d 1372 (1976); State v. Cox, La., 330 So.2d 284 (1976). The rationale of this exception to the general rule that information received after an illegal detention or arrest is inadmissible [State v. Joseph, La., 351 So.2d 1162 (1977); State v. Culotta, La., 343 So.2d 977 (1976)] is clear: there is no reason to distinguish, as a matter of law, between the coercive effect of an illegal arrest, a legal arrest, or police action under color of authority, since it is the voluntariness of consent which is decisive. See Armwood v. Pepersack, 244 F.Supp. 469 (D.C.Md.1965), U.S. cert. denied 385 U.S. 1028, 87 S.Ct. 756, 17 L.Ed.2d 675, 9 A.L.R.3rd 858, and later case service. Hence, we must determine whether or not Mosley voluntarily consented to the search of the truck which yielded evidence used to procure a search warrant for the defendant’s automobile.

A review of the record in this case convinces us that, under the totality of the circumstances, Mosley voluntarily consented to the search of his truck. Immediately after his illegal arrest he was advised of his “rights.” The police asked for permission to search the truck and advised Mosley of his right to refuse. Mosley gave oral permission. Despite the permission, the police did not search the vehicle immediately. Instead, they towed both the truck and the automobile to police headquarters. At headquarters, they again advised Mosley of his “rights”; requested permission to search; and informed Mosley of his right to refuse permission. Mosley then signed a “Consent to Search” form. Our finding of voluntariness on Mosley’s part is additionally strengthened by the fact that, although Mosley consented to the search of the truck, the present defendant, Angel, refused permission to search the automobile. The evidence of voluntary consent in the record is in no way refuted. Hence, the search of the truck being valid, the evidence seized was properly used to establish probable cause for the search warrant use to search the defendant’s automobile. State v. Joseph, supra; State v. Culotta, supra; State v. Baker, supra; State v. Cox, supra.

Having found that the evidence seized from the truck may be used in an affidavit in support of a search warrant, we must now determine if the affidavit quoted above established probable cause for issuance of a search warrant for defendant’s automobile.

Louisiana Code of Criminal Procedure Article 162 provides in pertinent part:

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

State v. Paciera, La., 290 So.2d 681 (1974), cited with approval in State v. Joseph, supra, sets forth the standard for determining the sufficiency of a supporting affidavit based upon informant supplied data:

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

The hearsay information contained in the affidavit [i. e., that given to Officer Delphin by the informant and repeated by Officer Dison in the affidavit] was established to be reliable by the subsequent legal search of the truck which yielded a portion of the drugs described by the informant. Since the informant described the two vehicles which would be traveling in tandem and going to a particular address and the legal search of one, the truck, yielded some of the drugs described by the informant, we find it reasonable for the magistrate to infer as probabilities from the facts in the affidavit that: (1) the three individuals were in a joint operation; (2) the three were “co-conspirators"; and (3) a search of the second vehicle involved in the operation would likewise yield illegal drugs.

Having correctly found that probable cause existed for issuance of the search warrant in this case, the trial judge properly overruled defendant’s Motion to Suppress Evidence.

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

DIXON and CALOGERO, JJ., dissent.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

Timothy Mosley’s initial consent to search his truck was given while he was handcuffed and surrounded by police officers and was the product of an illegal arrest. The written consent, given at the police station immediately after the illegal arrest, was obtained through exploitation of the illegal arrest. Under these circumstances the evidence seized pursuant to the search of Mosley’s truck could not be used to establish probable cause to search defendant’s automobile. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1976).

I respectfully dissent.

On Application for Rehearing

TATE, Justice

(concurring in denial).

If squarely faced with the issue, I would agree with my three dissenting brethren that the initial “consent” secured from Mosley to search his truck was not freely given, he being handcuffed and under illegal arrest. I am further inclined to agree with them that the subsequent written consent, at the police station, was obtained as the result of the exploitation of the illegal arrest; it was thus invalid also. Further, I agree that the search of Mosley’s person pursuant to an illegal arrest is inadmissible in evidence — it is not the product of a valid search incidental to a lawful arrest.

However, the issue before us does not concern the admissibility of evidence invalidly seized from Mosley’s person or truck. It concerns instead the admissibility of evidence seized by virtue of a search warrant, supported by affidavit valid on its face, from the defendant Angel’s automobile. The affidavit correctly states, as part of the probable cause for the Angel search, that drugs were found on Mosley’s person and in his truck.

It is true that, if the magistrate had conducted a hearing before issuing the warrant, he might have found that the product of the Mosley searches was invalidly obtained. Nevertheless, as the majority opinion indicates (incorrectly, in my opinion), it is at least arguable that some of the product of the searches was validly obtained by reason of Mosley’s consent to the searches of his trucks.

I would therefore not invalidate the search conducted pursuant to a search warrant, because part of the affidavit’s showing of probable cause was based upon an arguably valid consent which, after full hearing, could be held invalid (because coerced).

The issue before us primarily concerns, not the legality of the Mosley searches, but rather the validity of the subsequent search of Angel’s automobile pursuant to a search warrant, which itself was supported by an affidavit which on its face shows probable cause and which was executed by the police officer without any misrepresentation as to its contents. Ultimately, admitting that the issue is extremely close, I am not prepared to hold that Angel was so adversely affected by the illegal search of Mosley’s truck as to require suppression of the product of the search of his own (Angel’s) automobile.

Under the circumstances shown, the “causal connection between the initial unlawful conduct and the evidence actually sought to be suppressed has become so attenuated as to dissipate its initial taint, nor are the deterrent policies and individual protections expressed by the constitutional provision [La.Const. of 1974, Art. 1, Section 5] violated by so holding.” State v. Culotta, La., 343 So.2d 977, 983 (1976). See also concurring opinion in State v. Joseph, La., 351 So.2d 1162 (1977).

I therefore concur in the denial of the defendant’s application for rehearing.

      . We refer here ONLY to the drugs found in the brief case because there is no showing that either Mosley or Koen consented to a search of his person; hence, any evidence seized from their persons would be' excluded because of the illegal arrest with which it was associated.