author: DIXON, Justice.

text:
    STATE of Louisiana v. B. W. MITCHELL.
    No. 61446.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    A- J- Boudreaux, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Robert A. Pitre, Jr., Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Asst, Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

B. W. Mitchell was charged by bill of information with the offense of obscenity, specifically the willful and unlawful possession, exhibition, display and offer for sale of obscene material in violation of R.S. 14:106(A)(3). After a bench trial, defendant was found guilty as charged and sentenced to serve one year in parish prison and fined $1000. Defendant appeals, relying upon two assignments of error for reversal of his conviction and sentence.

Assignment of Error No. 1

Defendant alleges that even though the trial was before a judge alone the prosecutor should have been required to present an opening statement before the swearing of the first witness.

The record reflects that no objection was made to the State’s failure to make an opening statement. Therefore, the error cannot be availed of on appeal without a contemporaneous objection having been made at the time of the occurrence. C.Cr.P. 841; State v. Spot, 340 So.2d 1349 (La.1976).

Nevertheless, the assignment has no merit. The opening statement is intended to acquaint the jury with the course and conduct of the trial in order to better prepare it to receive testimony and other evidence in proper context during the trial. Where a trial is by judge alone, however, the prosecution opening statement is not mandatory. State v. Himel, 260 La. 949, 257 So.2d 670 (1972). As we have previously recognized, another function of the State’s opening statement is to inform the defendant of the nature of the charge and evidence by which the State intends to prove its case so as to prevent the defendant from being unfairly surprised. State v. Bolen, 338 So.2d 97 (La.1976); State v. Roquemore, 292 So.2d 204 (La.1974). A defendant is not prejudiced by the absence of a prosecution opening statement unless he can show unfair surprise. The bare allegation of unfair surprise is not a convincing demonstration of prejudice.

Assignment of Error No. 2

By this assignment defendant contends the trial judge erred in denying his motion for a new trial based on the ground that there was no evidence that defendant had any managerial duties or a financial interest in the bookstore where the obscene material was purchased, as required by R.S. 14:106(C). See State v. Terrebonne, 344 So.2d 1010 (La.1977).

The record shows:

Detectives Jeff Zapata and Lee Couret had been engaged in an investigation of complaints that the Airline Adult Bookstore on Airline Highway in Metairie was selling obscene materials. On March 14, 1977 Detective John Thevenot, at the direction of Detectives Zapata and Couret, entered the bookstore and randomly selected and purchased a magazine entitled “Pissass” from the store’s clerk. Detectives Zapata and Couret followed Thevenot into the store and observed the purchase. After Theven-ot left, Zapata and Couret talked with the store clerk who advised that B. W. Mitchell was the store manager. As Zapata and Couret left the store they met defendant entering. Both Zapata and Couret testified that they knew defendant from having met him on previous occasions while investigating complaints about the store. On those occasions, they stated, defendant had identified himself as the store’s manager. On the date in question, they testified, defendant was advised that they were conducting an investigation regarding the sale of obscene material at the store and that defendant told them he was still the manager.

Clearly there is some evidence from which the trial judge could conclude that the State satisfied its burden of proving that defendant had managerial duties at the bookstore. This assignment has no merit.

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


source: Caselaw Access Project

author: TATE, Justice. DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Gloria AUCOIN, Appellant.
    No. 61462.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Fredric G. Hayes, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   TATE, Justice.

The defendant, Mrs. Aucoin, was convicted of first degree murder, La.R.S. 14:30 (1976). At the sentencing hearing following the guilty verdict, see La.C.Cr.P. art. 905 et seq. (1976), the jury recommended life imprisonment. The defendant was sentenced in accordance with this recommendation.

We need discuss only Assignment 1 of the two assignments of error presented by this appeal. (Assignment 2 relates to the allegedly improper admission of prejudicial evidence at the sentencing hearing following the guilty verdict. At this hearing the jury reached a recommendation as to whether the defendant shall be sentenced to death or instead to life imprisonment. La. C.Cr.P. art. 905.7. Since the jury recommended the less severe of the two permissible penalties to be recommended, the error, if any, was harmless.)

Assignment 1

By this assignment, the defendant complains that her personal physician, a psychiatrist, retained by her husband was, over her objection, permitted to testify as to his conclusion that she was sane and as to the results of psychological testing tending to corroborate this conclusion.

The defendant forcefully contends that the ruling which permitted such testimony to be received is directly contrary to the physician-patient privilege provided by La. R.S. 15 :476. This enactment prohibits a physician from disclosing any communication, result, opinion, or information obtained as a result of his employment for a patient, “unless with his patient’s express consent.” The enactment exempts from its scope only physicians appointed by the court and also the cross-examination of any physician upon the correctness of any certificate issued by him.

The defendant had pleaded not guilty and not guilty by reason of insanity. La.C.Cr.P. art. 552. At the time the state called her physician to testify, she had not withdrawn her plea raising the insanity defense.

After the defendant was charged with the offense, her lawyer had requested the psychiatrist to examine her. The psychiatrist met with the defendant on two occasions, discussed her mental state with her, subjected her to two series of psychiatric tests and analyzed the test results, and assigned medication “for nervousness and to let her sleep.”

Defense counsel subpoenaed the psychiatrist, but did not call him to the stand. On rebuttal, the state called the psychiatrist to the stand. He testified that in his opinion defendant was sane at the time the offense was committed. Defense counsel objected to his taking the stand, claiming the physician-patient privilege, La.R.S. 15:476.

State v. Berry, 324 So.2d 822 (1975), is dispositive of this objection. There, we held the physician-patient privilege to have been waived by defendant’s decision to plead the insanity defense, 324 So.2d 827-28:

“By tendering his mental condition to the jury, he [the defendant] waived his right to claim the privilege as to other psychiatric medical evidence relevant to determination of the issue, such as . prior medical examination and diagnosis as to the mental condition he now claims exonerates him from criminal responsibility. By claiming, . . . the benefits of his plea of insanity, he cannot'offer that from the past or present which is favorable to his contention, but at the same time withhold from the jury’s consideration (if the state, offers it) that which is unfavorable to his plea.”

The defendant’s counsel argues, however, that the present situation is distinguishable from Berry: There, two of the physicians had been appointed to a lunacy commission, La.C.Cr.P. art. 650, to examine the accused, and the third physician was a prison doctor not actually employed by him for treatment; while here, it is contended, the patient had herself employed the physician for her own purposes and he had treated her as a patient (i. e., had prescribed medication).

Nevertheless, the rationale for the implied waiver in Berry was not the status of the particular doctors, but the defendant’s tender of his mental state as an issue in the trial. The only limitation there announced is that, by tendering his mental health as an issue, the defendant waives the privilege only as to such information as is genuinely relevant to the narrow issue there tendered, provided also that its probative value outweighs its prejudicial effect. 324 So.2d 828.

We recognize that our holdings here and in Berry raise difficult questions, not only of how to protect the psychiatrist-patient relationship (yet avoid misuse of it beyond its intended purpose), but also of statutory construction. For, indeed, the statute seems to require the “express” (not implied) waiver of the privilege by the patient. See La.R.S. 15:476 quoted in full in footnote 1.

These questions are resolved, however, by application of the principles that underlife evidentiary privileges. Four conditions are generally recognized as necessary for the establishment of a privilege against disclosure of a communication: first, the person who made the communication must then have intended it to be kept confidential; second, this element of confidentiality must have been essential to the relationship between the parties; third, the relationship must be one that society wishes very much to encourage; fourth, injury to the relationship that would result from disclosure must be greater than the benefit gained by giving the trier of fact access to the truth. 8 Wigmore on Evidence, Section 2285; (McNaughten Rev., 1961); see McCormick on Evidence, Section 99 (2d ed. 1972).

The doctor-patient privilege did not exist at common law. Since its widespread statutory adoption, it has been severely criticized, because it arguably meets only one of the four traditional tests. Obviously, the physician-patient relationship should be fostered; but it is doubtful whether most physician-patient communications are truly intended to be kept in confidence, or whether people would stop going to doctors if they feared disclosure. 8 Wigmore, Section 2380a; McCormick, Sections 98, 105.

In the case of communications to psychiatrists, however, the need for the privilege is clear. “On account of the special therapeutic need for assurance to the patient of protection against disclosures it is cogently argued . . . that even in states not having the physician-patient privilege generally, a privilege should be recognized . for confidential disclosures to psychiatrists . .” McCormick, Section 99 n.9. Thus, while any assertion of the doctor-patient privilege granted by La.R.S. 15:476 must be examined in light of the purposes of the statute, it is likely that communications to psychiatrists will be more often within the scope of the statute than ordinary doctor-patient communications.

As applied to the physician-patient relationship, the principles justifying evidentia-ry privileges have resolved themselves into several rules or restrictions.

One circumstance which will take a communication outside the scope of the privilege is the patient’s waiver, express or implied. La.R.S. 15:476 provides that such waiver must be by “express consent” of the patient. Consequently, it would seem that an implied waiver strongly favored by commentators — the patient’s consent logically inferred from his actions — does not operate in Louisiana to defeat an assertion of the privilege.

There is, however, a third set of circumstances described by the commentators as a “waiver”: when the conduct of the person claiming the privilege “(though not evincing that intention) places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege.” 8 Wigmore, Section 2388(3).

Description of such conduct as a “waiver” is perhaps inaccurate, since the claimant does not wish to abandon the privilege. Rather, the rule is an implied restriction on the use of the privilege, to prevent its assertion in circumstances which do not advance its fundamental purposes: This restriction or non-application of the privilege is implied as intended by reason of its purposes when created by legislation or recognized by jurisprudence.

As the commentators note, the physician-patient privilege is not an incompetency statute, excluding certain witnesses or evidence because of presumed untrust-worthiness. Rather, it is a statutory privilege, excluding a certain class of information, which may well be highly reliable, in order to advance an intended social policy. Accordingly, it may be appropriate for courts to inquire whether the information sought to be excluded is really in the class whose exclusion will advance the policy, and which was therefore intended to be excluded. Since the “fairness” restriction implied from the purpose of rule has nothing to do with waiver, such an inquiry is not barred by the language of La.R.S. 15:476 to the effect that the patient’s consent to disclosure by the physician must be express.

Where, as here and in Berry, a defendant puts his mental health at issue, then seeks to prevent the disclosure of evidence relevant to his mental health, we are not confronted with an adverse party prying into the private details of the patient’s past life in an effort to prove a case against him. In fact, the patient is not trying to hide the embarrassing, humiliating or repugnant disclosures he might have made to the psychiatrist — the sort of disclosures for which confidence is required. On the contrary, he is trying to bar the psychiatrist’s conclusion that he was a normal, healthy individual.

Further, where the opposing party seeks to prove the patient’s sanity, then — whether the patient has (as here) or has not already committed a crime — the fear of a future public disclosure of his sanity can hardly be viewed as a deterrent to the patient’s seeking psychiatric help.

It should be stressed that the defendant’s plea of insanity places outside the privilege only information relevant to that narrow issue. The trial judge also has a responsibility to weigh the prejudicial effect of such relevant information against its probative value. Factors to be considered in this balancing process include the threat that disclosure of certain confidences, although relevant and not privileged, would undermine the psychiatrist-patient relationship by creating a widespread public impression that the privilege is ineffectual; the possibility that certain evidence relevant to sanity might damage the defendant by its relevance to other aspects of the case; the remoteness of the psychiatrist’s examination from the time of the commission of the crime; and the possibility that certain disclosures might encourage the jury to convict the defendant because he is a bad or dangerous man, irrespective of his guilt or innocence of the crime charged.

In this case, the psychiatrist was simply asked about his professional contacts with the defendant and whether he thought she was sane. Neither the psychiatrist-patient relationship nor the defendant’s right to a fair trial was thus endangered.

Accordingly, we find no merit to the error assigned.

Decree

We affirm the conviction and sentence.

AFFIRMED.

SUMMERS, J., dissents.

DIXON, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent. R.S. 15:476 clearly prohibits the testimony of the physician as to the result of his investigation into his patient’s mental condition, unless with her “express consent.”

      . La.R.S. 15:476 provides in full:
      “No physician is permitted, whether during or after the termination of his employment as such, unless with his patient’s express consent, to disclose any communication made to him as such physician by or on behalf of his patient, or the result of any investigation made into the patient’s physical or mental condition, or any opinion based upon such investigation, or any information that he may have gotten by reason of his being such physician; provided, that the provisions of this article shall not apply to any physician, who, under the appointment of the court, and not by a selection of the patient, has made investigation into the patient’s physical or mental condition; provided, further, that any physician may be cross-examined upon the correctness of any certificate issued by him.”

      . By its express terms, La.R.S. 15:476 does not afford a physician-patient privilege where doctors have been appointed by the court to inquire into the patient’s mental or physical condition; but the complaint was that, without the express consent of the accused, one of these psychiatrists had obtained access to pre-ap-pointment medical records concerning pre-ap-pointment diagnoses and treatment.


author: PER CURIAM.

text:
    STATE of Louisiana v. Raymond DRIGHT.
    No. 61466.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Frank G. DeSalvo, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, William L. Brockman, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Raymond Dright was charged by indictment with armed robbery. La.R.S. 14:64; 15:529.1. After a trial by jury defendant was found guilty as charged and sentenced as a double offender to imprisonment at hard labor for thirty-three years. On appeal, defendant relies upon ten assignments of error, six of which are argued in brief.

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


text:
    STATE of Louisiana v. Reginald DUDLEY.
    No. 61474.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Fred S. Gahagan, Gahagan & Gahagan, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Andrew S. Vallien, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The State charged the defendant, Reginald Dudley, with simple burglary, a violation of LSA-R.S. 14:62. Pursuant to a plea bargain agreement, the defendant pled guilty to a reduced charge of theft over $100 but less than $500. The court sentenced him to two years imprisonment.

The defendant appeals, relying on two assignments of error. He contends that Louisiana Code of Criminal Procedure Arti-ele 875, governing presentence investigation, denies due process and that the two-year sentence is excessive.

We may not review these arguments. To raise an alleged irregularity or error on appeal, the defendant must contemporaneously object to the irregularity or error and present his reasons to the trial judge. Absent compliance with this procedure, the irregularity or error is waived. LSA-C. Cr.P. Art. 841. As the defendant failed to object either when the court ordered the presentence report or when the court sentenced him, he is precluded from raising these matters on appeal. See State v. Williams, La., 322 So.2d 177 (1975).

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

DIXON, J., concurs.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Louis STROTHER.
    No. 61476.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Preston N. Aucoin, Ville Platte, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Yidrine, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

By bill of information filed April 29,1977, the District Attorney of the Thirteenth Judicial District charged that Louis Strother “attempted to murder Larry Lee Richard” on or about April 16, 1977. Strother was arraigned on April 29, 1977 and entered a plea of not guilty. On the day set for trial, May 24, 1977, prior to the commencement of trial, the bill of information was amended to charge an attempt to commit first degree murder. R.S. 14:27 and 14:30. Defense motions for continuance and for a preliminary examination were denied, trial was conducted and the jury returned a guilty verdict. The court sentenced Strother to serve twelve years in the custody of the Department of Corrections. Strother appeals to this Court, relying on three assignments of error for a reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

On the morning of May 24, 1977, prior to trial’s commencement, the bill of information which had merely charged an attempt to murder was amended to properly charge the appropriate degree of the attempted murder (attempted first degree murder). In response to the amendment the defense filed a motion for continuance, urging that whereas the original bill failed to validly charge a crime, the amended bill charged a crime which requires specific intent, preparation of the defense of which required additional time. Strother urged that requiring him to stand trial would deny him the right to file a motion for a bill of particulars in connection with the amended charge and would deny him a preliminary examination. The judge’s ruling denying the continuance sought is the basis for this assignment of error.

Defendant’s claim that the element of specific intent interjected by the State’s amendment warrants the continuance sought, is without merit. Prior to amendment the bill clearly sought to charge an attempt to murder, albeit it was substantially defective. At the time this crime was committed, there were only two grades of murder, first degree and second degree, but an attempt to commit either, insofar as the necessary elements of the crimes are concerned, requires a specific intent to kill. See State v. Butler, 322 So.2d 189 (La.1975). Thus the amendment did not, as asserted, alter the complexion of the case to add the specific intent issue, that issue being present in any attempted murder prosecution.

Strother’s claims that denial of the continuance deprived him of the right to file motions and seek a preliminary examination are equally lacking in merit. Where, as here, the amendment of a charging instrument is made to cure deficiencies, not to alter the nature of the crime, a defendant is without a right to be rearraigned and is not entitled to an opportunity to file the usual pre-trial motions upon the amended bill. State v. Bluain, 315 So.2d 749 (La.1975).

The burden of establishing that amendment has prejudiced the defense is on the defendant. State v. delaBeckwith, 344 So.2d 360 (La.1977). He has failed to sustain that burden of proof.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

The trial court’s denial of the preliminary examination sought by Strother after the State amended the information is the subject of this assignment. In the absence of a showing of specific prejudice resulting in an unfair trial, a complaint that the court improperly denied a preliminary examination becomes moot after conviction. State v. Redfud, 325 So.2d 595 (La.1976); State v. Pesson, 256 La. 201, 235 So.2d 568 (1970). At the time of the denial of the preliminary examination defendant could have sought review of the ruling by an application for supervisory writs. State v. Pesson, supra. Strother’s complaints at this time come too late to avail him.

ASSIGNMENT OF ERROR NO. 3

By this third assignment of error, Strother complains that the guilty verdict returned by the jury is contrary to the law and the evidence. Jurisprudence pronouncing the rule that such an allegation present nothing for this Court to review is legion. State v. Boyd, 359 So.2d 931 (La.1978), No. 61,113, and cases cited therein.

Decree

For the foregoing reasons we hereby affirm defendant’s conviction and sentence.

AFFIRMED.

SUMMERS, J., concurs.


author: MARCUS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Dave CARTER.
    No. 61538.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Jake Shapiro, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Charles J. Yeager, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Dave Carter was indicted by the grand jury in the same indictment for six counts of aggravated rape (La.R.S. 14:42), four counts of aggravated crime against nature (La.R.S. 14:89.1), and one count of aggravated burglary (La.R.S. 14:60). After trial before a jury of twelve persons, defendant was found guilty as charged on all counts by a unanimous verdict. Defendant was sentenced to confinement at hard labor for fifty years on each of the six counts of aggravated rape, fifteen years on each of the four counts of aggravated crime against nature, and thirty years on the count of aggravated burglary. Sentences on all counts were ordered to be served consecutively. On appeal, defendant relies on two assignments of error for reversal of his convictions and sentences.

FACTS

On the night of June 4, 1977, two young girls, both in their early teens, were babysitting with three small children. At about 11:00 o’clock, they were folding clothes in the living room; the three children were asleep on sofas. Defendant entered the room from the direction of the back bedroom and told the girls to “freeze.” He was wearing a stocking-type mask on his face and carrying a pistol. He pulled the girls by the hair, forcing them into the back bedroom. Defendant asked the girls if they had any money. They had only a few pennies. He pulled his mask to the top of his head and lowered his pants to just above his knees. The girls could see his face and also viewed a tattoo on one of his legs. At gunpoint, defendant then alternatively raped both victims several times and committed at least four acts of aggravated crime against nature. One girl was raped four times, twice vaginally and twice anally; the other was raped twice, once by each method. Defendant also inserted the pistol in the vagina of one of the girls. The acts of aggravated crime against nature included oral copulation and other acts of unnatural carnal copulation. Defendant left the scene after taking some unidentified item from a drawer in another bedroom. The entire episode lasted approximately one hour. Both victims positively identified defendant as the perpetrator of these crimes.

Dr. Walter Cloud, assistant coroner for Rapides Parish, testified that he examined both victims during the early morning hours after commission of the alleged offenses. He stated that his examination of both girls revealed evidence of forcible vaginal and anal intercourse. He further expressed an opinion that both girls had been virgins prior to the forcible intercourse.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash the indictment. The pretrial motion alleged a misjoinder of offenses and also sought a severance of offenses.

First, we consider the claim of misjoinder of offenses. Defendant argues that the offenses charged were misjoined in the same indictment because they were not triable by the same mode of trial. Specifically, he argues that aggravated rape (a capital offense at the time of commission of the instant offenses) could not be joined with aggravated crime against nature and aggravated burglary (both punishable by confinement necessarily at hard labor) because the modes of trial differ for the two categories of offenses. We do not agree.

La.Code Crim.P. art. 493 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. (Emphasis added.)

La.Const. art. 1, § 17, states in pertinent part:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. (Emphasis added.)

In State v. McZeal, on rehearing, 352 So.2d 592 (La.1977), the accused was charged in the same indictment with aggravated rape (a capital offense at the time of occurrence) and armed robbery (punishable by confinement necessarily at hard labor). McZeal objected to misjoinder of the offenses on the basis that they were not tria-ble by the same mode of trial. This court found that the requirement in La.Code Crim.P. art. 493, that offenses joined must be triable by the same mode of trial, referred to the four modes of trial indicated by La.Const. art. 1 § 17, viz, trial by judge, trial by jury in cases in which the punishment may be with or without hard labor, trial by jury in cases in which the punishment necessarily is with hard labor, and trial by jury in cases in which the punishment may be capital. We rejected the state’s argument that the misjoinder of offenses in McZeal was cured by Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), which declared unconstitutional Louisiana’s mandatory death penalty for aggravated rape, thereby insulating McZeal from capital punishment. In rejecting this argument, we stated:

[I]n similar circumstances when the imposition and execution of a statutory death penalty has been judicially repro-bated, we have held that the crime and procedural devices applicable to the conduct punishable by the statute remain intact. State v. Whatley, 320 So.2d 123 (La.1975); State v. Flood, 263 La. 700, 269 So.2d 212 (1972); State v. Holmes, 263 La. 685, 269 So.2d 207 (1972). It follows, therefore, that the defendant’s right to all of the procedural safeguards which accompany a capital charge remained intact. These necessarily included his right to be tried before a jury of twelve, all of whom must concur to render a verdict, and his right to have quashed an indictment joining this offense with another offense not triable by the same mode of trial. Consequently, the misjoinder of offenses in this case was not cured or rendered benign by Selman. (Emphasis added.)

Accordingly, finding that the indictment in McZeal represented a misjoinder of offenses under La.Code Crim.P. art. 493 and such misjoinder was conclusively prejudicial, we reversed the convictions and sentences and remanded the cases for separate trials.

However, the instant case is clearly distinguishable from McZeal. The aggravated rapes herein were allegedly committed on June 4-5, 1977. At that time, La.R.S. 14:42 (aggravated rape) provided for punishment by death. However, on June 29, 1977, the United States Supreme Court rendered its decision in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). In Coker, the Supreme Court reviewed the death sentence imposed for aggravated rape of an adult woman and “concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.” (Footnote omitted.) By Act 343 of 1977, which became effective prior to the trial of this matter, the legislature amended the penalty provision of La. R.S. 14:42 from punishment by death to life imprisonment without benefit of parole, probation or suspension of sentence. In accordance with La.Const. art. 1, § 17, the trial judge in the instant case instructed the jury that, in order to reach a verdict, it was necessary that ten jurors agree. The actual verdict was unanimous.

The distinguishing factor between McZeal and the instant case is that the imposition and execution of the statutory death penalty had been only “judicially rep-robated” at the time of trial in McZeal, whereas, prior to trial in the instant case, the legislature had amended the penalty for aggravated rape from punishment by death to life imprisonment without benefit of parole, probation or suspension of sentence.

The mode of trial is determined by the possible penalty. La.Const. art. 1, § 17: State v. McZeal, supra. Whereas aggravated rape, prior to the effective date of Act 343 of 1977, as a capital offense, was triable before a jury of twelve persons, all of whom must concur to render a verdict, the offense is now punishable by confinement necessarily at hard labor and is therefore triable before a jury of twelve persons, ten of whom must concur to render a verdict. Hence, the mode of trial for aggravated rape was changed as a result of the amendment to its penalty provision. Moreover, this change is procedural in nature. State v. McZeal, supra; State v. Holmes, 263 La. 685, 269 So.2d 207 (1972). A procedural change which does not affect an accused’s substantive rights in the prosecution of a criminal offense is applicable to the trial of the offense after the effective date of the change even though the particular offense was committed prior to that date. See, e. g., State v. King, 355 So.2d 1305 (La.1978) and State v. Sepulvado, 342 So.2d 630 (La.1977). Accordingly, in the instant case, the change in the mode of trial of aggravated rape resulting from the amendment to its penalty provision was applicable to the trial of this matter, which occurred after the effective date of the amendment, even though the offenses were allegedly committed prior thereto.

Since aggravated rape was punishable by confinement necessarily at hard labor at the time of trial of the instant offenses, the proper mode of trial for the aggravated rape offenses was trial before a jury of twelve persons, ten of whom must concur to render a verdict. The offenses of aggravated crime against nature and aggravated burglary are also punishable by confinement necessarily at hard labor and, thus, triable before a jury of twelve persons, ten of whom must concur to render a verdict. La.Const. art. 1, § 17; La.R.S. 14:89.1; La. R.S. 14:60. Therefore, all of the offenses charged in the instant indictment were triable by the same mode of trial, in conformity with La.Code Crim.P. art. 493. The trial judge did not err in denying defendant’s motion to quash grounded on the claim of misjoinder of offenses.

Next, we consider defendant’s contention that the trial judge erred in denying his pretrial application for a severance of offenses.

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.

Where the offenses joined are connected with or constitute parts of the same transaction, the critical question which must be determined by the trial judge presented with a motion for severance of offenses is 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. La.Code Crim.P. art. 495.1; State v. Labostrie, 358 So.2d 1243 (La.1978); State v. Proctor, 354 So.2d 488 (La.1977).

In the case before us, defendant was charged in one eleven-count indictment with three types of offenses, aggravated rape, aggravated crime against nature, and aggravated burglary. All of the offenses were committed at the same place and within a one-hour time span. Only two victims were involved, whose testimony constituted the essence of the state’s case. The victims, two young girls, related in simple terms the consecutive events constituting each of the crimes charged and the elements thereof. The aggravating factor of all of the offenses was shown by one basic fact, i. e., defendant possessed and threatened the victims with a gun. Only three types of offenses were at issue, and the trial judge carefully and clearly explained the elements of each to the jury. We, therefore, conclude that in this case 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. Labostrie, supra; State v. Proctor, supra. Accordingly, the trial judge did not err in denying defendant’s pretrial application for a severance of offenses.

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

ASSIGNMENT OF ERROR NO. 2

Defendant first contends the trial judge erred in denying his motion for a new trial based on the grounds urged in Assignment of Error No. 1. For the reasons assigned, we find no merit to this contention.

Defendant also assigns as error the trial judge’s denial of his motion for a new trial grounded on the claims that the verdict is contrary to the law and evidence and that the ends of justice would be served by granting a new trial. La.Code Crim.P. art. 851(1) and (5). He argues that the identity of defendant as the perpetrator of the instant offenses was not proven beyond a reasonable doubt and that the record contains evidence of only six of the ten sex offenses charged.

It is well settled that an allegation that the verdict is contrary to the law and evidence presents nothing for this court’s appellate review. State v. Drew, 360 So.2d 500 (La.1978); State v. Cass, 356 So.2d 936 (La.1978); State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977); State v. Jack, 332 So.2d 464 (La.1976). Likewise, an allegation that the ends of justice would be served by granting a new trial is a ground upon which the trial judge may grant a new trial. It presents nothing for this court’s appellate review. State v. Matthews, 354 So.2d 552 (La.1978); State v. Williams, supra; State v. D’Ingianni, 217 La. 945, 47 So.2d 731 (1950). In any event, we have reviewed the record and find substantial evidence of both defendant’s identity as the perpetrator of the offenses charged and the commission of each of the ten sex offenses.

In sum, the trial judge did not err in denying defendant’s motion for a new trial. Assignment of Error No. 2 is without merit.

DECREE

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

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I concur despite my misgivings about the propriety of trying, over defense objection, these numerous charges. In arguing entitlement to a severance defendant expressly sought only severance of the aggravated burglary charge from the ten “sex” charges. Counsel for defendant merely read from his written motion the allegation that the offenses charged were numerous and complex, then urged severance of the aggravated burglary charge while arguing his motion. He did not otherwise explain or argue what offenses should be severed. The trial judge might reasonably have assumed that the only severance being sought was that to which the defense expressly referred; two trials rather than one were apparently sought, with all the sex offenses against both victims to be tried in one proceeding. Thus viewing the circumstances surrounding this assignment of error, I do not believe that denial of severance was reversible error. See State v. Proctor, 354 So.2d 488 (La.1977).

      . Such application is not barred by the constitutional prohibition against application of an ex post facto law. The ex post facto prohibition comes into effect only when a law creates or aggravates a criminal offense, increases the punishment therefor, or changes the rules of evidence for the purposes of conviction. Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798).

      . Since this case is not one which involves the joinder of offenses of the “same or similar character,” the severance issue in this case raises none of the issues raised in State v. Carter, 352 So.2d 607 (La.1977). State v. Labostrie, 358 So.2d 1243 (La.1978); State v. Proctor, 354 So.2d 488 (La.1977).


author: SUMMERS, Justice. DENNIS, J.,

text:
    STATE of Louisiana v. Jimmy Earl MAY.
    No. 61543.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    John G. Williams, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant Jimmy Earl May was charged as a principal to the crime of aggravated criminal damage to property. La.Rev.Stat. 14:55. After trial by a jury of six, defendant was found guilty and sentenced to imprisonment at hard labor for ten years. Three assignments of error are relied upon for reversal of defendant’s conviction and sentence.

Assignment 1 —Evidence at the trial disclosed that defendant was the driver of an automobile occupied by himself and one Doyle Remedies on the night of June 18, 1977. As defendant drove past a house owned by John S. Pickett and occupied by Dennis Griffiths and his family, Remedies fired two shotgun blasts at the house. The automobile, gun and shells belonged to defendant May.

On the day set for trial, while the prospective jurors of the venire were seated in the courtroom awaiting examination on voir dire and selection, the trial judge entertained and granted a motion by the State’s attorney to set aside the fixing of another case against the defendant May, involving a charge of possession of a controlled and dangerous substance with intent to distribute, which had also been scheduled for trial that day. Defense counsel moved for a mistrial contending that the motion of the State’s attorney to upset the fixing in the narcotics case was a reference to “[ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible”, a ground for mistrial under Article 770 of the Code of Criminal Procedure. The motion was denied by the trial judge because the remarks involved in the motion were not made during the trial of this case charging criminal damage to property nor in the argument as required by Article 770. Voir dire examination and swearing of the prospective jurors were then completed and the trial proceeded.

There is no showing in this record that any of the prospective jurors heard the State’s attorney refer to the narcotic charge against defendant. But, assuming that they did hear him, subsequent examination of the jurors on voir dire could have served to enable defense counsel to question them concerning the motion and ascertain from them whether, with that knowledge, they could serve impartially and be guided only by the evidence to be adduced at trial. However, this was not done. Furthermore, as the State’s attorney pointed out, the narcotic charge against May had been publicized in the newspapers and was a public record open to inspection by anyone.

Even if the prospective jurors had overheard the motion, the ruling of the trial judge is correct. The motion referring to the narcotic charge was not made during trial. A jury trial commences when the first prospective juror is called for examination. La. Code Crim.Pro. art. 761. As we understand the facts of this case, no prospective juror had yet been called for examination when the motion to set aside the fixing in the narcotics case was made.

There is, moreover, no showing that prejudice resulted to the defendant. State v. Governor, 331 So.2d 443 (La.1976); State v. Sylvester, 298 So.2d 807 (La.1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972). Because a mistrial is a drastic remedy, a strong showing of prejudice is required. This assignment is without merit.

Assignment 2 — It is the defense contention that the verdict of the jury is erroneous and invalid because there was no evidence that defendant committed any crime.

The record reflects that there was some evidence that defendant participated in the commission of the crime charged. The State’s evidence shows that the automobile was owned by defendant. The shotgun was owned by defendant and also the testimony of Remedies, defendant’s confederate, is to the effect that defendant was driving the automobile at the time the shooting took place. In addition to Remedies’ admission that he shot into the house, photographs introduced in evidence showed the damage caused by the shotgun pellets. It is uncon-tradicted also that Dennis Griffiths, his wife and infant child were present in the house when the shots were fired at 2:30 in the morning. The child ordinarily slept behind a window penetrated by the shots. However, because of the position of the child’s crib on this night, only particles of glass reached the crib.

Aggravated criminal damage to property is defined as “the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that a human life might be endangered, by any means other than fire or explosion.” La.Rev.Stat. 14:55.

Moreover, all persons concerned in the commission of a crime are principals under the authority of Section 24 of Title 14 of the Revised Statutes whether they directly commit the act constituting the offense, aid and abet its commission, or directly or indirectly counsel or procure another to commit the crime.

According to the definition of the crime and the statute which defines principals under Louisiana law there was ample evidence that defendant May’s participation satisfied every element of the crime. Under these circumstances it was not necessary for May to pull the trigger to implicate him and sustain his guilt. This assignment is without merit.

Assignment 3 — Following the conviction the trial judge ordered a pre-sentence investigation. When the report was received he sentenced defendant to ten years imprisonment at hard labor. Although no objection to the sentence appears from our search of the record, the defense asserts in this assignment of error that such a punishment is cruel and unusual and in violation of both Federal and State Constitutions.

The permissible sentence prescribed by law for aggravated criminal damage to property is imprisonment with or without hard labor for not less than one or more than fifteen years. La.Rev.Stat. 14:55. In the instant case the ten-year sentence at hard labor falls within the permissible ambit of the law.

Also there is no record of a defense objection at the time the sentence was imposed. For this reason this Court cannot entertain this defense contention for the first time on appeal. La. Code Crim.Pro. art. 841; State v. Ledet, 337 So.2d 1126 (La.1976).

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

CALOGERO, J., concurs.

DENNIS, J.,

concurs, but disagrees with statements in the opinion indicating that if the prospective jurors had overheard reversals the trial court ruling still would have been correct.

      . La. Code Crim.Pro. art. 770 provides in pertinent part:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      # * ‡ * *
      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      * * * * * *
      “An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”


text:
    STATE of Louisiana v. John CRITTLE.
    No. 61565.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Vincent Hazleton, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

John Crittle was charged by indictment with aggravated burglary. La.R.S. 14:60. After a trial by jury defendant was found guilty as charged and sentenced to imprisonment at hard labor for twenty years. On appeal, defendant relies upon six assignments of error, only two of which are argued in brief.

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

SUMMERS, J., concurs.


author: DIXON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Benny Allen BOEN.
    No. 61568.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Bernard E. Fulghum, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant Benny Allen Boen was convicted of distribution of a controlled dangerous substance (tenuate) and sentenced as a multiple offender to serve five years imprisonment.

On appeal the defendant presents one argument based on three assignments of error for a reversal of his conviction. The defendant contends that the trial court abused its discretion in limiting the scope of voir dire examination. The following excerpts from the transcript are pertinent to defendant’s argument:

(Twelve prospective jurors called)

“BY THE COURT:
. Is there anyone among you who has ever been employed by the State Police, the City of New Orleans Police Department, the Bureau of Narcotics and Dangerous Drugs of the United States Government? I take it by your silence that you have not.”'
“BY THE PROSECUTOR:
. You will also hear, as I have told you, predominately from police officers for the State’s ease today. What I would like to ask you is do you feel that you can apply, assuming that the judge will tell you, if he can tell you at the end of the trial the law that you should apply and assuming that he will tell you that you are to judge all witnesses by the same standards and he many give you some standards and suggest to you other standards, do you feel that you can judge the police officers that you will hear by the same standards, not greater and not less than any other witnesses that are here today. Do you feel that you would hold police officers to a lesser degree or to a higher standards. If you do, would you raise your hands?”
“BY DEFENSE COUNSEL:
Now, are any of you familiar with a bar called Egor’s Lounge on St. Charles Street? Are any of you — the judge asked you if you had any relatives or friends on the Drug Enforcement Administration. Any of you have any relatives or friends on any law enforcement such as a security guard or—
BY THE COURT:
No, I will not permit that question. That is too general. I asked the question as to whether or not you have any close friends with whom you discussed often whose business is a law enforcement officer. I feel that everybody knows somebody who is involved or had some relative. Anyone among you now seated in the jury box who has a relative or close friend who is employed in law enforcement capacity with whom you discuss their business often?
BY DEFENSE COUNSEL:
Your Honor, note an objection.
BY THE COURT:
Okay.
BY DEFENSE COUNSEL:
Now, as Miss Myers told you, you do evaluate the testimony of police officers as you would any other witnesses. Would you give a witness that stood before you, a lay witness as opposed to a police officer, would you give any more credibility than you would any other person? Would each of you judge him just as you would say a defendant on the stand on the same basis of credibility judgement?”
(Three prospective jurors called)
“BY THE COURT:
. Is there anyone among who has ever been employed by any agency whose primary purpose it is to enforce the law such as the State Police, the New Orleans Police Department, the Criminal Bureau of Investigation, the Bureau of Narcotics and Dangerous Drugs. I take it by your silence that you do not. . . . ”
“BY DEFENSE COUNSEL:
. Do any of you have occasion to talk with police officers?
BY THE PROSECUTOR:
Your Honor, I’m going to object to that—
BY THE COURT:
Sustained.
BY THE PROSECUTOR:
—as being overly broad.
BY THE COURT:
Sustained.
BY DEFENSE COUNSEL:
Your Honor, I would note an objection.
Do any of you have any friends that are police officers?
BY THE COURT:
With whom you discuss their business.
BY DEFENSE COUNSEL:
I just wanted to—
BY THE PROSECUTOR:
Objection.
BY THE COURT:
Sustained.
BY DEFENSE COUNSEL:
Note an objection.”

(One prospective juror called)

“BY THE COURT:
Have you ever been employed by any agency such as the New Orleans Police Department, the State Police or any like or similar agency?”
(One prospective juror called)
“BY THE COURT:
Have you ever been employed by any agencies whose primary purpose it is to enforce the law?”
The defendant argues that because much of the State’s evidence was based on the testimony of police officers, the trial court erred in not permitting inquiry into the relation between prospective jurors and other police officers.

The scope of the voir dire examination is a matter which falls within the sound discretion of the trial court. C.Cr.P. 786; State v. Dominick, 354 So.2d 1316 (La.1978); State v. Crochet, 354 So.2d 1288 (La.1977); State v. Vinet, 352 So.2d 684 (La.1977). The trial court, however, must temper the exercise of its discretion by affording the defendant wide latitude in his examination of prospective jurors so that he may intelligently exercise both challenges for cause and peremptory challenges. In State v. Hills, 241 La. 345, 129 So.2d 12 (1961), this court explained the principle in the following manner:

“It is a general view as to voir dire examination that the defendant in a criminal prosecution is entitled to make reasonable and pertinent inquiries of the prospective juror so that he may exercise intelligently and wisely his right of preemptory challenge — since each party has the right to put questions to a juror not only to show that there exists proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will make a peremptory challenge. For this reason, a wide latitude is allowed counsel in examining jurors on their voir dire, and the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner. The Constitution itself (La.Const. of 1921, Art. 1, Sec. 10) guarantees to the accused the right to peremptorily challenge jurors, ‘the number of challenges to be fixed by law;’ that number, in the trial of any crime for which the penalty is death or necessarily imprisonment at hard labor, is twelve (R.S. 15:354). The intelligent exercise of the right of rejection, by use of those twelve peremptory challenges, is the meat of the privilege, and can be substantially weakened by a restriction of questions — the answers to which might be regarded as informative of a juror’s attitude and therefore of vital importance to his defense. In State v. Henry, 196 La. 217, 198 So. 910, this Court quoted with approval from 35 C.J. at pages 387, 405 and 406; ‘ * * * parties have a right to question jurors on their examination not only for the purpose of showing grounds for a challenge for cause, but also, within reasonable limits, to elicit such facts as will enable them intelligently to exercise their right of peremptory challenge, and * * * it is error for the court to exclude questions which are pertinent for either purpose. * * * The right of peremptory challenge is a substantial right, and its freest exercise should be permitted. * * * ’ (Emphasis supplied).” 241 La. at 395-397, 129 So.2d at 31.

See also State v. Holmes, 347 So.2d 221 (La.1977); State v. Jones, 282 So.2d 422 (La.1973). The rule of State v. Hills, supra, and State v. Jones, supra, is part of the basic law of the State, now included in Art. 1, § 17 of the La.Const. of 1974: “. . . The accused shall have a right to a full voir dire examination of prospective jurors and to challenge jurors peremptorily . . . ”

The conviction and sentence are reversed, and the case is remanded to the district court for further proceedings.

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

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

The majority reverses defendant’s conviction and sentence based on a finding that the trial judge abused his discretion in limiting the scope of defendant’s voir dire examination by not allowing him to ask prospective jurors if they had talked with police officers or had friends who were police officers. After a review of the record of the voir dire examination as a whole, I disagree.

The record does not clearly reflect that the state’s objections to the questions were improperly sustained by the trial judge. The trial judge did not preclude defendant from pursuing a concededly relevant line of inquiry pertaining to potential bias of jurors in favor of police witnesses; instead, he merely sustained the state’s objections to overbroad questions. Defendant made no attempt to narrow and rephrase the questions. He simply noted his objections for the record.

Moreover, defendant did not properly preserve for our review his objections to the rulings of the trial judge. Article 841 of the Louisiana Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless defendant had made known to the trial judge his objection and the grounds therefor. It is well settled that defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to rule on it and prevent or cure his error. An objection stating no basis presents nothing for this court to review. State v. Dupar, 353 So.2d 272 (La.1977), and cases cited therein. In the instant case, the record reveals that defendant merely objected generally to the rulings of the trial judge without stating the grounds for his objections.

In any event, I do not consider that the rulings of the trial judge constitute such a serious curtailment of voir dire examination as to warrant a finding of clear abuse of the trial judge’s discretion by this court.

Accordingly, I respectfully dissent.


author: SUMMERS, Justice. DENNIS, Justice, TATE, Justice,

text:
    STATE of Louisiana v. Charles JACKSON, Jr.
    No. 61605.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Elizabeth Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Joseph Roberts, Asst. Dist. Attys., for plaintiff-appel-lee.
   SUMMERS, Justice.

Charles Jackson, Jr., defendant, was duly charged in a bill of information with the crime of simple burglary. La.Rev.Stat. 14:62. After a jury trial he was found guilty as charged. He was then charged as a multiple offender under the Habitual Offender Law. La.Rev.Stat. 15:529.1. After due proceeding defendant was found to be a fourth offender, and he was sentenced to serve twenty years at hard labor. In this appeal four assignments of error are urged.

Assignment 1 — On the morning of trial defendant’s appointed counsel moved orally for a continuance. The motion was denied and the ruling is assigned as error.

The minute entries indicate that defendant was arraigned on September 16, 1977. At that time the court appointed counsel to represent him at the arraignment only. After defendant pled not guilty at arraignment, the trial judge advised him of his right to appointed counsel and allowed defendant to use the telephone to contact his family with a view to retaining private counsel. Defendant was again before the judge on September 20, 1977 for a hearing to determine counsel. Being without retained counsel, he took the oath of poverty and the court appointed counsel to represent and defend him. At a status hearing on September 26, 1977 defendant informed the judge that he had not employed an attorney. On October 18, 1977 he was brought to trial and moved for the continuance which is the subject of this assignment.

It is not an abuse of the trial court’s discretion to deny a continuance when the defendant has waited until the day of trial to request a continuance in order that he might attempt to employ counsel. Especially is this true in this situation where the defendant has filed an affidavit of poverty and requested appointed counsel. Furthermore, there is no claim that appointed counsel has not had the opportunity to properly prepare an adequate defense during the 28 days he had been assigned to the case. State v. Anthony, 347 So.2d 483 (La.1977); State v. Winston, 327 So.2d 380 (La.1976).

There is no merit to this assignment.

Assignment 2 — At the multiple offender hearing held in order to permit the State to introduce evidence of Jackson’s prior offenses and enable Jackson to defend against such evidence, the State offered the testimony of Officer Bono, an expert in the identification and comparison of fingerprints. The three previous offenses charged consisted of convictions of simple burglary, simple robbery and theft. Bono testified that the arrest record in each of the three prior offenses charged in the multiple offender bill, which he had examined in court during the hearing, contained fingerprints of the offender which were identical to those of the defendant Jackson in the arrest record in the instant case. In each of these three prior offenses the offender was also named Charles Jackson, Jr. In his opinion, Officer Bono testified, the person who was convicted of the three prior offenses charged in the multiple offender bill was the defendant Jackson then before the bar.

After Bono had been cross-examined by defense counsel he was again questioned by the State’s attorney. He was asked if he knew when the fingerprints were taken and how they were kept. When defense counsel objected the trial judge allowed Bono to testify to the general procedure followed by the police department in taking fingerprints. Fingerprints are taken, he testified, at the time of the arrest at Central Lockup. They are placed on the booking sheet along with other pertinent information. Examination of this witness ended at that point. Denial of the defense objection is the basis for this assignment.

There is no merit to the defense objection. The testimony was relevant to show that the fingerprints were normally taken at the time of booking an arrested person and that the fingerprints on the booking sheet (fingerprint register) could be expected to be those of the arrested person. And a police officer is competent to testify to the procedure followed in the police department with which he is familiar.

Assignment 3 — The State’s attorney then offered to introduce in evidence certified copies of bills of information indicating that Charles Jackson, Jr., had previously been convicted of the three separate offenses already mentioned, together with the originals of the arrest registers containing the fingerprints referred to by Officer Bono. Defense counsel made no objection to introduction of the bills of information. But, although no objection had been made to the testimony of Officer Bono, defense counsel objected to the introduction of the arrest registers in each case, contending that there was no showing that they were the arrest registers of defendant or when they were made, and they were not certified. For these reasons, defense counsel argued that the State had not proven its case. When the trial judge admitted the arrest registers into evidence defense counsel objected and assigned the ruling as error on this appeal.

The defendant having no evidence to offer, the State moved to substitute Xerox copies of the police arrest registers in lieu of the originals. The motion was granted.

It should be noted that all of the records of prior convictions introduced in evidence were the original records of the Criminal District Court for the Parish of Orleans, the court in which the multiple offender charge was lodged and the identical court in which the hearing was being held. These original documents were the official records and if the matter contained therein was relevant the documents were admissible in evidence. Cf. La.Code Civil Pro. art. 1394. There was no necessity to certify an original record. And, while the content of these documents may have been subject to question, the documents were admissible as the official records of that content.

The defense contention is further weakened by the failure to object to the testimony of Officer Bono based upon the arrest registers. Once this testimony was received without objection and without contradiction, it was evidence upon which the trial judge could rely to find that defendant was in fact a multiple offender. A later objection to the introduction of the original arrest register in the files of the prior convictions would not serve to nullify Bono’s testimony. Although the fact upon which the opinion of an expert is based may lend weight to his opinion testimony, the absence of those facts does not mean that his opinion is without some value as evidence.

This assignment is without merit.

Assignment 4 — When defendant was sentenced to twenty years at hard labor as a multiple offender defense counsel objected that the sentence was excessive, and the denial of this objection is assigned as error. The sentence imposed is the minimum provided by law for a fourth offender under the Habitual Offender Law. La.Rev. Stat. 15:529.1(A)(3). The trial judge was without authority to impose a lesser penalty. Twenty years imprisonment for a fourth offender is not excessive. His recidivism has demonstrated very emphatically that he is not amenable to rehabilitation. This record indicates that only imprisonment can protect society from Jackson’s transgressions.

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

TATE and DENNIS, JJ., concur and assign reasons.

DENNIS, Justice,

concurring.

Although I concur in the result reached by the Court, its opinion may prove to be a source of some confusion regarding rules of evidence relating to documentary evidence.

I respectfully disagree with the part of the opinion of the Court pertaining to Assignment of Error Number 2. The officer was incompetent to testify as to how the fingerprints were taken because he admitted he did not have any knowledge of those facts. His testimony as to the general procedure normally followed by his police department was not shown to be relevant to the fingerprint evidence which the State sought to introduce.

I also disagree with the majority’s treatment of Assignment of Error Number 3. It should be pointed out that the arrest registers were not properly admissible because there is no exception to the hearsay rule under which they could have been introduced. However, the State introduced other evidence which reasonably supports the Court’s judgment of conviction, viz., certified copies of the bills of information with minute entries from the same district court in which the trial was proceeding showing the disposition of each case. This evidence was authenticated and rendered admissible by La.R.S. 13:3722, which provides for the production and use in evidence of documents belonging to the files of the district court in which the trial is proceeding.

For a statement of the rules of law governing these issues see, State v. Martin, 356 So.2d 1370 (La.1978); State v. Tillman, 356 So.2d 1376 (La.1978).

TATE, Justice,

concurring.

The official record should have been authenticated by evidence that its custodian furnished it to the witness, before it was introduced. However, other evidence in the record, including certified copies of minute entries and unobjected-to testimony, adequately identified the present defendant with the person convicted of the prior offenses.


text:
    STATE of Louisiana v. Mark J. LAMARTINIERE.
    No. 61621.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Ron S. Macaluso, Seale, Sledge, Macaluso & Ross, Hammond, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., Joseph H. Simpson, Asst. Dist. Atty., for plaintiff-relator.
   DIXON, Justice.

Defendant Mark J. Lamartiniere was charged by bill of information with arson with intent to defraud in violation of R.S. 14:53. A motion to suppress evidence seized pursuant to a search warrant authorizing the search of a storage unit rented from the Tangi Store All in Hammond, Louisiana was filed by the defendant and, after a hearing, the trial court ordered the evidence suppressed. We granted the State’s application for supervisory writs in order to review the trial court’s ruling.

Evidence adduced at the hearing on the motion to suppress indicates that the defendant’s residence burned on November 27, 1977. The circumstances of the fire raised the suspicion of arson. On December 21, 1977 Samuel J. Robertson, a claims representative for the defendant’s home insurer, Allstate Insurance Company, received a letter from the defendant listing the items claimed to have been destroyed in the fire. Robertson delivered the letter to Detective A1 Bignar of the Tangipahoa Parish Sheriff’s Department. On the following day Bignar appeared before a judge, swore to the accuracy of an affidavit, and was issued a search warrant for the search of the defendant’s storage unit. The affidavit contained the following statement of facts:

“Detective A1 Bignar investigated residence fire at 120 Kan Tally Estates, Hammond, Louisiana belonging to Mr. Mark Lamartiere (sic) at approximately 6:30 a. m., November 27, 1977 which appeared to be the result of arson. A five gallon green plastic container containing a small amount of combustible liquid was found near the patio doors on the outside also a five gallon green plastic container about % full of combustible liquid was found inside the house. The house also had the smell of diesel fuel or some type of flamable (sic) mixture. Also the house had very little furniture or contents. Further investigation determined that Mr. Lamartiere (sic) had rented storage space at Tangi Store All on October 9, 1977 for three months. A statement was obtained from neighbors who are respected citizens of the community and who are known for their truth and veracity that approximately three weeks prior to November 27, 1977, they observed the La-martiere’s (sic) loading merchandise from the home into a pickup truck one item in particular was the 3-wheel 5 h.p. tri-cat. On Wednesday, December 21,1977, Mr. S. A. Robertson, adjuster for the Insurance Company which had the insurance on the Lamartiere (sic) residence and contents received a certified letter from Mr. La-martiere (sic) listing all of the items reportedly lost in the fire. Articles listed in search warrant (illegible) the articles listed. Attached is a complete list received by Mr. Robertson. Information was received from a citizen of the community who is known for his truth and veracity that he observed the articles listed above in Unit 9 Building A, of Tangi Store All 1029 South Holly St., Hammond, La.”

The search resulted in the seizure of certain items which the defendant had listed as destroyed in the fire.

Two serious issues were raised through the motion to suppress: first, whether the defendant’s expectation of privacy in the storage unit was violated by the initial discovery of the unit’s contents, and second, whether the warrant was invalid because the affidavit contained intentional misrepresentations of fact.

The Expectation of Privacy

The record shows that the defendant rented a ten foot by thirty foot storage unit from the Tangi Store All. The owner of Tangi Store All, Lou Faucette, described the unit as having a cement floor, metal walls and large, overhead doors at both ends. The units have no windows and the walls meet the ceiling at both ends. Because of the pitch of the roof, there is a space of approximately one foot between the side walls and the ceiling at the center of the unit. This ventilation space is approximately twelve feet above the floor and opens into the adjoining units. Mr. Fau-cette stated that when the units are rented, the lessee supplies his own locks and that the management has no means of access unless the lessee so provides.

On December 14, 1977 Samuel Robertson, the claims representative, and Emerson G. Wilkinson, a fire marshal in the Department of Public Safety Office of Fire Protection, approached Mr. Faucette and learned that the defendant had rented a storage unit. Wilkinson and Robertson had been investigating the fire along with Detective Bignar of the sheriff’s department. Mr. Faucette took them to the locked storage unit and the two investigators photographed the unit. Upon the investigators’ request, Faucette opened the unit adjacent to the defendant’s, which at that time was not rented. Wilkinson noted the ventilation space and requested Faucette to get a ladder. From atop the ladder first Wilkinson, then Robertson, peeked over the twelve foot wall into defendant’s unit. Wilkinson testified that he was able to see household items which were missing from the burned house inside the unit without having to actually enter through the vent. Wilkinson told Detective Bignar of his discovery and requested that Bignar go to the storage unit to see the evidence himself. Gus Faucette, the son of the owner of the Tangi Store All, testified that Detective Bignar and another officer came to the unit after Wilkinson and Robertson and that they asked for the ladder, climbed up and took pictures of the interior of the defendant’s storage unit. Eight days later, on December 22, 1977, Bignar submitted his affidavit and was issued the search warrant.

The evidence obtained through peeking over the wall was essential to the establishment of probable cause in the affidavit for the search warrant. The question is whether that action violated the defendant’s expectation of privacy protected by the Fourth Amendment to the United States Constitution and Art. 1, § 5 of the Louisiana Constitution of 1974.

It is said that it is the privacy of a person, and not places, which is protected by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Abram, 353 So.2d 1019 (La.1978); State v. Fearn, 345 So.2d 468 (La.1977). The United States Supreme Court explained this principle in the following simple manner:

“. . . What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. . .” 389 U.S. at 351, 88 S.Ct. at 511. (Citations omitted).

Justice Harlan, in his concurring opinion in Katz, posed a basic test by which the person’s “expectation of privacy” may be measured. The Justice stated:

“. . . My understanding of the rule that has emerged from prior decisions is that there is a two-fold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ...” 389 U.S. at 361, 88 S.Ct. at 516.

Justice Harlan’s test is helpful in determining the extent of this defendant’s expectation of privacy. It is clear that the defendant had an actual, subjective expectation of privacy in the contents of his storage unit. The unit had no windows and no one could gain access without first obtaining the key from the defendant. The owners of the Tangi Store All testified that they represent to the prospective lessees that the units are not open to the public. And, though the unit did have the one foot ventilation space which opened into the next unit, the defendant would not be unreasonable in believing that no one would scale the twelve foot wall in order to see the contents of the unit.

We also find that the defendant’s expectation of privacy is of a type which society at large would recognize as being reasonable. Most people would believe their property to be safe from uninvited view when that property is stored in a locked storage unit with no exterior openings, and only a one foot ventilation space twelve feet above the floor.

A citizen may have a reasonable expectation of privacy in an area which is not impervious to all possible invasion, cf. Katz v. United States, supra; State v. Fearn, supra. When that expectation is determined reasonable, the Fourth Amendment protects against intrusion through gymnastics such as those involved in the present case. Accordingly, we find that the defendant’s rights, protected under both the federal and state constitutions, were violated by the unwarranted invasion occasioned through the efforts of Wilkinson and Robertson. Further, without the information gained through that intrusion, the affidavit submitted for the search warrant fails to establish probable cause to search.

Misrepresentations in the Affidavit

In State v. Rey, 351 So.2d 489 (La.1977), this court adopted the reasoning of United States v. Thomas, 489 F.2d 664 (5th Cir. 1975), cert. den. 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975), and stated:

“. . . when faced with an affidavit containing inaccurate statements the preferred approach is to excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause. If, however, the misrepresentations were intentionally made, a different result is required. Because these distorted statements constitute a fraud upon the courts and represent impermissible overreaching by the government, a warrant based on an affidavit containing intentional misrepresentations must be quashed.
. The primary purpose of the exclusionary rule is the deterrence of such deliberate governmental wrongdoing, and this policy is best served by quashing the warrant.” 351 So.2d at 492.

The testimony adduced at the hearing on the motion to suppress revealed several misrepresentations which must be considered “intentional” within the meaning of Rey. First, and most serious, the affiant refers to Wilkinson, the fire marshal, only as a “citizen of the community,” apparently to prevent the judge from learning of the State activities in peering over the wall into the defendant’s storage area. To compound that deception, the affiant fails to mention that he himself had climbed the ladder and seen the goods. The apparent motive behind these omissions was to prevent the magistrate from learning of possibly illegal searches of the defendant’s property.

The affidavit is also deceptive in that it was written in a manner which intimates that all of the facts which it reveals were within the firsthand knowledge of the affiant. In truth, the facts contained in the affidavit were the result of combined investigative efforts and the affi-ant did not have firsthand knowledge of many of them. While it is not required that each of the investigators appear and swear to the affidavit, when that information is not within the personal knowledge of the affiant, he must so indicate in the affidavit. See State v. Culotta, 343 So.2d 977, 979 (La.1976). Without this information, the magistrate cannot properly evaluate the credibility of the information contained in the affidavit.

We find that the trial court properly ruled the evidence seized pursuant to the invalid search warrant inadmissible. Accordingly, we affirm its judgment and remand for further proceedings consistent with the views expressed herein.

SANDERS, C. J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I respectfully dissent. In every case where a violation of the fourth amendment is alleged, analysis must begin with the question of whether the fourth amendment is applicable. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme court announced the principle that the fourth amendment protects people and not places. Regardless of an individual’s subjective expectation of privacy, however, the protection of the fourth amendment extends only to those expectations of privacy that are constitutionally justified. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). The disputed evidence in the instant case was located in a rental unit where a space of approximately one foot existed between the side walls and the ceiling opening leading into adjoining rental units. In my view, the facts of this case do not warrant the conclusion that defendant had a justifiable expectation of privacy in the area where the evidence was located. Accordingly, the fourth amendment is not applicable in this case.

      . The State conceded in brief that the activities of Fire Marshal Wilkinson could not be considered as those of a private citizen outside the scope of the Fourth Amendment protection against unreasonable searches and seizures.

      . “Intentional” in this context means a deliberate act designed to deceive the issuing magistrate. State v. Rey, supra.