author: DIXON, Justice.

text:
    Conrad STALLINGS v. W. H. KENNEDY & SON, INC.
    No. 57184.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.
    George M. Snellings, Jr., Snellings, Breard, Sartor, Shafto & Inabnett, for defendant-respondent.
    Bridges, Young, Matthews & Davis, Pine-bluff, Ark., for appellant.
    George M. Strickler, Jr., Kidd, Katz & Strickler, New Orleans, for plaintiff-applicant.
   DIXON, Justice.

The petition is this action was filed September 17, 1974, alleging that the defendant wrongfully caused the “impoundment” at a cotton warehouse of 441 bales of plaintiff’s cotton. The petitioner alleged that the price of his cotton dropped from 89^ per pound to 490 per pound when he was finally able to sell it in August, 1974. The petition refers to previous litigation between the parties during which W. H. Kennedy & Son, Inc. had given notice to the cotton warehouse of an adverse claim to Stallings’ cotton.

Defendant filed a motion for summary judgment November 7, 1974, attaching affidavits making certain allegations of fact, and attaching letters concerning the matter in dispute.

On November 20, 1974 plaintiff Stallings filed a motion for summary judgment and attached certain documents, including his affidavit. Other affidavits were subsequently filed by the parties.

The trial court granted summary judgment in favor of the defendant, dismissing the plaintiff’s suit, and the Court of Appeal affirmed. Stallings v. W. H. Kenne dy & Son, Inc., 321 So.2d 411 (La.App.1975).

This suit is the aftermath of prior litigation between these parties. W. H. Kennedy & Son, Inc. had filed an action against Conrad Stallings and others on December 19, 1973 for specific performance of a “forward sale contract” of Stallings’ cotton, alleging that Stallings had repudiated his obligations under the contract. That suit resulted in a jury verdict in favor of Stallings, rejecting the demands of Kennedy, and a judgment in Stallings’ favor on June 7,1974.

It was during the pendency of that litigation that lawyers for W. H. Kennedy & Son, Inc., on December 10, 1973, notified the warehouse where Stallings’ cotton was stored that Kennedy claimed the ownership and right to possession of cotton which had been stored by Stallings. (R.S. 54:18).

Stallings’ petition complains that the “im-poundment” was in bad faith, and that after the termination of the litigation by judgment, defendant refused to permit Stallings to obtain the cotton until Stallings released Kennedy from liability, even though Kennedy did not intend to appeal the judgment of June 7, 1974.

In the opinion of the Court of Appeal, it was considered that, in order for plaintiff to prevail in the instant suit, he must prove either malice or want of probable cause in the litigation during which Stallings could not market his cotton.

The Court of Appeal determined that, even though malice and bad faith are subjective conditions of the mind which are normally not susceptible of proof by affidavit in a motion for summary judgment, the allegation of bad faith in plaintiff’s petition was a “broad-brush con-clusionary allegation . . . without allegations of underlying facts,” and concluded that there were no “genuine issues of material fact bearing on malice or lack of probable cause.” The Court of Appeal ruled that the “nebulous statements contained in plaintiff’s affidavit are not sufficient to raise genuine issues of material fact as to malice and probable cause.” (321 So.2d 411, 415-416).

It is not necessary for us to determine whether there is a genuine issue of material fact on the question of Kennedy’s initial malice and bad faith, for to conclude that the “impoundment” of the cotton was initially not in good faith does not decide whether Kennedy wrongfully prevented the marketing of the cotton after the judgment of June 7, 1974. Stallings’ petition alleges that even though the defendant did not intend to appeal the judgment of June 7, 1974, it prevented the sale and removal of the cotton until August 1, 1974. Stallings’ affidavit filed with his motion for summary judgment on November 20, 1974 alleges:

“After the jury rendered a verdict in my favor, W. H. Kennedy & Son, Inc. refused to release my cotton unless I would sign a release to it for my claim to damages. When I tried to sell the cotton, even after the 18 days had expired, no buyer would buy my cotton unless I got an ‘okay’ from Jim Kennedy. Kennedy refused to release the cotton. I was only able to sell my cotton after the 90 days had run. I received $.49 per pound for my cotton.”

We do not mean to imply that Kennedy’s allegations are not traversed. Kennedy filed a letter from the manager of the cotton warehouse to the attorneys for Stallings, dated July 1, 1974, less than a month after the judgment in the first suit, to the effect that the warehouse recognized the termination of the controversy over the ownership of the cotton, and stood ready to deliver the cotton upon receipt of appropriate instructions accompanied by the warehouse receipts and other related documents.

However, the question on a motion for a summary judgment is not whether Kennedy can prove the truth of the factual allegations in its affidavit; nor is it whether, considering the documents filed by both parties, it is unlikely that the plaintiff will be able to prove his allegations. A motion for a summary judgment should be granted if, and only if, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” C.C.P. 966.

Even though Stallings’ affidavit is controverted, there remains unresolved a genuine issue of material fact.

Therefore, the judgment of the Court of Appeal is reversed, and there is now judgment denying defendant’s motion for summary judgment, at defendant’s cost; the case is remanded to the district court for further proceedings,

DENNIS, J., recused because he performed a judicial act in the case in another court. L.C.C.P. art. 151(3).

      . “If someone other than the depositor or person claiming under him has a claim to the title or possession of the goods, and the Warehouseman has information of such claim, the warehouseman shall be excused from liability for refusing to deliver the goods, either to the depositor or person claiming under him or to the adverse claimant, until the warehouseman has had a reasonable time to ascertain the validity of the adverse claim or to bring legal proceedings to compel all claimants to interplead.”

      . The underlying reason for this position was explained in Consolidated Elec. Co. v. United States, 355 F.2d 437, 438 (9 Cir. 1966):

        . . When an issue requires determination of state of mind, it is unusual that disposition may be made by summary judgment. It is important, and ordinarily essential, that the trier of fact be afforded the opportunity to observe the demeanor, during direct and cross-examination, of a witness whose subjective motive is at issue.”
      See 10 C. Wright & A. Miller, Federal Practice and Procedure, § 2730 (1972).

      . Defendant’s argument that Stallings’ affidavit cannot be considered because it is attached to Stallings’ own motion for summary judgment, which may not be filed until after the answer has been filed (C.C.P. 966) is without merit. Nothing prohibits the judge from considering any affidavit which has been filed in the record and is germane to the questions raised in the motion for summary judgment.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Edward GILMORE.
    No. 57343.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.

      Horace P. Rowley, III, Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Louisiana Dist. Attys.’ Assn, filed an Amicus Curiae brief in support of State’s application for rehearing.
   DENNIS, Justice.

Defendant Gilmore was convicted of manslaughter, a violation of La.R.S. 14:31, and sentenced to serve twelve years at hard labor. On appeal, he relies on seven assignments of error for reversal of his conviction and sentence. After an examination of the entire record, we find that one of the errors complained of resulted in a probable miscarriage of justice, requiring reversal of defendant’s conviction.

In the early morning hours of September 29, 1973 a small group, including Lennie Washington and his brother Noel Washington, congregated outside the Aquarius Bar on Desire Street in New Orleans. The State produced evidence to the effect that Kenneth Sparks and the defendant, Edward Gilmore, had approached and an argument had ensued between Sparks and Noel Washington. Sparks produced a gun over which these two men began to struggle. Lennie Washington intervened on his brother’s behalf and was shot. Several witnesses called by the State testified that the defendant Gilmore had fired the fatal shot with a second weapon which he had in his possession. However, it was the theory of the defense that Kenneth Sparks had shot the victim, and it offered the testimony of one witness who claimed Sparks confessed to the crime while hiding in her apartment after the shooting.

Motion for a New Trial

Defendant moved for a new trial on the basis of newly discovered evidence.

La.C.Cr.P. art. 851 provides:

“The court, on motion of the defendant, shall grant a new trial whenever:
<( jfc * *
“(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

At the hearing on the motion the defendant produced the testimony of three new witnesses. The trial judge denied the motion primarily upon the ground that part of the evidence would be inadmissible at a new trial and secondarily for the reason that defendant had not exercised reasonable diligence in its discovery. We are compelled to conclude that our trial brother fell into error in both conclusions.

Essie Rodgers, who worked at the Aquarius Bar as a barmaid on the night of the shooting, testified that she saw Sparks fight with and shoot Lennie Washington. She further testified that one of the State’s witnesses who named the defendant as the killer at the trial was not even present during the fracas. She also stated that she had not seen the defendant Gilmore at the Aquarius on the night of the shooting.

James Lewis, the owner of the Aquarius, testified that Sparks and Lennie Washington had an argument in the bar the day before the shooting. On the day after the crime, Lewis testified, Sparks had admitted to him that it was he who killed Washington. Lewis was absent from the bar during the time the shooting occurred and could not shed any additional light on the events.

Sylvester Marshall, a regular patron at the Aquarius, was present on the night in question. He corroborated Essie Rodgers’ testimony that one of the State’s eyewitnesses had not been at the bar near the time of the shooting. Marshall testified that an argument had occurred in the bar between Kenneth Sparks and Noel and Lennie Washington only a few minutes before the shooting occurred outside. However, he did not go outside until after Washington had been shot. He stated that he knew Gilmore and had not seen him at the scene of the crime.

The trial judge characterized the admission of guilt by Sparks to Lewis as inadmissible hearsay which could not be introduced at a new trial. However, there was substantial evidence that Sparks had been struggling over a gun with the dead man moments before the fatal shot was fired. Furthermore, evidence that Sparks had also confessed the crime to someone other than Lewis was introduced at the trial without objection by the State. It was established at the hearing that Sparks himself had been killed shortly after making these confessions and would, consequently, be unavailable to testify. Therefore, we hold, under these circumstances, the statements which clearly were against Sparks’ penal interest would be admissible as an exception to the hearsay rule.

Some previous discussion of this issue is found in our opinion in State v. Morrow, 260 La. 72, 255 So.2d 78 (1971). Although Justice Summers, in his dissenting opinion, urged the recognition of such an exception to the hearsay rule, the majority left the question unanswered, finding that it had not been squarely presented by the facts.

Although there is authority to the contrary, Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), we think better reasons for admitting such evidence have been advanced by Justice Summers and by other jurists and scholars. In Donnelly, Justice Holmes, in dissenting from the exclusion of the confession by a deceased person, stated:

“The confession of Joe Dick, since deceased, that he committed the murder for which the plaintiff in error was tried, coupled with circumstances pointing to its truth, would have a very strong tendency to make anyone outside of a court of justice believe that Donnelly did not commit the crime. I say this, of course, on the supposition that it should be proved that the confession really was made, and that there was no ground for connecting Donnelly with Dick. The rules of evidence in the main are based on experience, logic, and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which would be let in to hang a man (Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917); and when we surround the accused with so many safeguards, some of which seem to me excessive; I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight. The history of the law and the arguments against the English doctrine are so well and fully stated by Mr. Wig-more that there is no need to set them forth at greater length. 2 Wigmore, Ev. §§ 1476, 1477.” 228 U.S. at 277, 33 S.Ct. at 461, 57 L.Ed. at 834.

Wigmore has headed the criticism of the exclusion of statements of fact against penal interest:

“ * * * It is plain enough that this limitation, besides being a fairly modern novelty of jujdicial invention, is inconsistent with the broad language originally employed in stating the reason and principle of the present exception (§§ 1457 and 1476 supra) as well as with the settled principle upon which confessions are received (§ 1475 supra).
“But, furthermore, it cannot be justified on grounds of policy. The only plausible reason of policy that has ever been advanced for such a limitation is the possibility of procuring fabricated testimony to such an admission if oral. This is the ancient rusty weapon that has always been brandished to oppose any reform in the rules of evidence, viz., the argument of danger of abuse. This would be a good argument against admitting any witnesses at all, for it is notorious that some witnesses will lie and that it is difficult to avoid being deceived by their lies. The truth is that any rule which hampers an honest man in exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an innocent.
“The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for in its commonest application it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit. The absurdity and wrong of rejecting indiscriminately all such evidence is patent.
« * * *
“In the United States today, hesitation to admit such evidence is lessening. That we are now in the process of retracing our steps and discarding the barbarous doctrine of earlier times is evident not only in the increasing number of contemporary decisions but also in current statutes and rules directed to this end.” 5 Wigmore, Evidence, § 1477 (Chadbourn rev. 1974). (Footnotes omitted.)

See also McCormick on Evidence, § 278 (2d ed. 1972).

The district judge also indicated that the exercise of reasonable diligence by defense counsel would have uncovered the witnesses before trial. Essie Rodgers testified that she had withheld her information because she “didn’t want to be involved in it.” Marshall was merely one of a crowd of customers present in the bar on the night of the shooting. James Lewis was the owner of the bar but was not present at the time of the shooting.

Had the defendant been represented by retained counsel perhaps we would expect the kind of diligent investigation for evidence which would have resulted in the earlier tracking down of these witnesses. However, the defendant here, who was incarcerated from the time of his arrest until trial, was provided a defense by court appointed counsel through the Orleans Indigent Defender Program. In light of its limited resources we are not prepared to say that it failed to exercise reasonable diligence in this case. However, even if it did, the defendant, as an indigent, should not be made to suffer because of a possible shortcoming of counsel provided by the court.

In his per curiam the trial judge stated that the testimony of the witnesses on the motion for a new trial was cumulative and would not have altered the jury’s verdict. If he had not been under the impression that the confession of Sparks constituted inadmissible hearsay he may not have reached this conclusion. In' any event, we disagree because it is very apparent that the testimony of the witnesses at the hearing was material and controverted much of the State’s evidence upon trial. Given the peculiar facts of this case in which it was proven beyond any doubt that Sparks was struggling over a gun with the victim’s brother moments before the victim intervened and was shot, evidence that a witness saw Sparks commit the killing and that Sparks twice confessed the crime to others, in our opinion, would probably have changed the verdict of the jury. When considered in this light, we believe that defendant’s showing, in the interest of fairness and justice, warranted the granting of a new trial and that the trial judge’s failure to do so amounted to an error of law. La.C.Cr.P. art. 858; State v. Randolph, 275 So.2d 174 (La.1973); State v. Williams, 258 La. 251, 246 So.2d 4 (1971).

Two other points raised on appeal deserve mention in order to avoid confusion upon the retrial of the case.

The Amended Indictment

On December 13, 1973, defendant was indicted by the Orleans Parish Grand Jury for first degree murder. On January 24, 1974, more than four months before trial, an assistant district attorney in open court amended the indictment to charge defendant with second degree murder. Defendant strenuously objects to the amending procedure and to the fact that he was thereby deprived of what he terms “a vested right to a unanimous jury verdict.”

Defendant concedes that without amending the indictment the State could have abandoned the charge of murder in the first degree and proceeded to trial on the lesser charge of murder in the second degree. La.C.Cr.P. art. 61; State v. Doucet, 177 La. 63, 147 So. 500 (1933); State v. Edwards, 287 So.2d 518 (La.1973). In State v. Doucet, supra, the accused was charged with murder but the State abandoned that charge and elected to go to trial on the charge of manslaughter. This .Court approved the procedure, saying:

“ * * * The charge of manslaughter is included in that of murder, being a crime of the same generic class as murder, but one of a lesser degree. In such cases the state may abandon the charge of the greater crime and proceed with the prosecution of the lesser, and no formal amendment of the indictment is necessary for that purpose. A motion in open court in the presence of the accused and entered on the minutes prior to the beginning of the trial is sufficient. State v. Bourgeois, 158 La. 713, 104 So. 627. State v. Kelly, 176 La. 405, 146 So. 6.” 147 So. at 501.

Likewise, the charge of murder in the second degree is a charge of the same generic class as murder in the first degree, although it is a lesser grade of the offense. A verdict of guilty of second degree murder is responsive to the charge of first degree murder. La.C.Cr.P. art. 814, as amended by Acts 1973. Under these circumstances, a motion to proceed on the reduced charge made in open court in the presence of the accused and entered on the minutes would have been sufficient to amend the indictment. We perceive no substantial difference in the procedure followed by the district attorney in this case and think it would be inconsistent to hold that he could not accomplish formally what could have been done without formality. We therefore conclude that the district attorney was inherently empowered to amend the indictment to charge a lesser included offense, although there was no specific codal authorization for this procedure.

The amendment of the indictment also effected a change in the number of jurors required to concur in a verdict. Defendant would have us hold that the grand jury vested in him the right to a unanimous jury verdict by indicting him for first degree murder. He relies upon Article 7, Section 41 of the La.Constitution of 1921 (then in effect) and Article 782 of the La.Code of Criminal Procedure, which provide that cases in which the punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. These provisions do not compel the result urged by defendant. Although the number of jurors to try a case is determined by the gravity or nature of the crime charged, State v. Stanford, 204 La. 439, 15 So.2d 817, 820 (1943), an indictment will not unalterably fix the composition of the jury. The controlling provisions graduate the number of jurors composing the jury and the number which must concur in the verdict according to the severity of the punishment which might attend a conviction. We think it clear, then, that the charge under which an accused is prosecuted is the determining factor. Set State v. Doucet, supra.

When the district attorney amended the indictment in this case he not only lessened the gravity of the charge but also eliminated the possibility that the punishment might be capital. We therefore find that a unanimous verdict would not be required on retrial of this case.

The Photograph of the Victim

The State offered into evidence a photograph of the victim taken at the morgue for the avowed purpose of identifying him. In an admitted attempt to exclude the photograph, defense counsel offered to stipulate that Lennie Washington was the man who had been shot on September 29, 1973, and was the subject of the photograph and the autopsy. However, the State refused to accept the stipulation and insisted that the photograph be shown to the jury. Defense counsel claimed that since he had stipulated to the facts which the State sought to prove through the photograph it had no probative value whatsoever and could only serve to inflame the emotions of the jurors.

The test of admissibility of a so-called “gruesome photograph” is whether its probative value outweighs its probable inflammatory effect. State v. Smith, 327 So.2d 355 (La.1976). Here, the photograph was relevant to prove the identity of the victim. The individual who identified the victim at the morgue as Lennie Washington was not available for testimony at trial. Therefore, it was necessary for the State to have the Assistant Coroner identify the body in the picture as that same individual upon whom he performed an autopsy and to have a witness identify the picture as that of the victim, Lennie Washington.

The photograph, while unpleasant, is not especially gruesome. It depicts the upper half of the victim’s body, with a clean wound at the throat, some bandages in the abdominal region, and smudges of blood on his neck and the sheet beneath him. A similar photograph was examined in the Smith case, supra, and was found not to be of the sort which would overwhelm reason and excite the jury to condemn the accused without sufficient evidence. Thus, absent any stipulation by defendant the photograph would clearly be admissible.

The remaining question, then, is whether defendant’s stipulation as to the identity of the victim could prevent the State from placing the photograph in evidence. As a general proposition, no party is required to stipulate with his adversary and may insist upon proving the facts of his case. Parr v. United States, 255 F.2d 86 (5th Cir. 1958), cert. den., 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64. See also State v. Rideau, 249 La. 1111, 193 So.2d 264 (1967). However, the danger of abuse where material objects, e. g., morgue photographs, bloody clothing, and weapons, are exhibited to the jury warrants some qualification of this rule.

Wigmore has recognized a twofold threat in the production of such evidence:

“First, there is a natural tendency to infer from the mere production of any material object, and without further evidence, the truth of all that is predicated of it. Secondly, the sight of deadly weapons or of cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence.” 4 Wigmore, Evidence, § 1157 (Chadbourn rev. ed. 1972).

But as noted above, the inflammatory effect of such evidence must be weighed against its probative value, and generally the possibility of prejudice will not be permitted to thwart the State’s necessary attempts to prove the method and results of the crime. However, where the State’s proof has been rendered unnecessary by defendant’s judicial admission, the prejudicial nature of the evidence assumes added significance and correspondingly reduces the State’s legitimate interest in its admission:

“A fact that is judicially admitted needs no evidence from the party benefiting by the admission.
“But his evidence, if he chooses to offer it, may even be excluded; first, because it is now as immaterial to the issues as though the pleadings had marked it out of the controversy (ante, § 2); next, because it may be superfluous and merely cumber the trial (ante, §§ 1863, 1904); and furthermore, because the added dramatic force which might sometimes be gained from the examination of a witness to the fact (a force, indeed, which the admission is often designed especially to obviate) is not a thing which the party can be said to be always entitled to.” 9 Wigmore, Evidence, § 2591 (3d ed. 1940). (Footnote omitted.)-

Particularly where, as here, the fact to be proved is not seriously at issue a judicial admission offers an expeditious means of serving both the State’s interest in meeting its burden of proof and the defendant’s interest in excluding prejudicial material. To reserve to the State the right to accept or reject the stipulation is to forego an objective balancing of these countervailing interests and to invite the State to exploit the prejudicial impact of the evidence. This was demonstrated in the instant case. When the State asked at trial that the photograph be shown to the jury, the judge remarked, “I don’t see why the jury has to see the picture;” but at the State’s insistence, he complied with the request. Implicit in the State’s refusal to accept the stipulation is the suggestion that it sought to gain something more from the admission of the photograph than proof of the murder victim’s identity. If this “something more” was merely the inflammatory effect of the photograph, the trial judge should have had the authority to prevent it.

On the other hand, a defendant may not be permitted to rob the State’s evidence of its fair and legitimate weight by means of a unilateral stipulation:

“Nevertheless, a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly' made with grudging limitations or evasions or insinuations (especially in criminal cases), so as to be technically but not practically a waiver of proof.” Id.

The sensible solution, offered by Wigmore, is to leave the question of admissibility to the trial judge:

“ * * * Hence, there should be no absolute rule on the subject; and the trial Court’s discretion should determine whether a particular admission is so plenary as to render the first party’s evidence wholly needless under the circumstances.” Id.

Therefore, when the case is tried again, it will be for the trial judge to determine whether a stipulation may prevent the admission of the photograph into evidence.

For the reasons assigned, the conviction and sentence of the defendant are set aside, and the case is remanded for a new trial according to law.

Remanded for a new trial.

SANDERS, C. J., dissents.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS v. Allen Ross McDONALD.
    No. 58033.
    Supreme Court of Louisiana.
    June 9, 1976.
   In re: Allen Ross McDonald applying for certiorari or writ of review to the Court of Appeal, 329 So.2d 898, Second Circuit, Parish of Jackson.

Writ denied.

Under the facts found we cannot say the result is incorrect.

DENNIS, J., is of the opinion the writ should be granted.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Frederick James TUCKER.
    No. 57333.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.

      Nathan S. Fisher, Williams & Fisher, Baton Rouge, for defendant-appellant.
    Dennis R. Whalen, Baton Rouge, for amicus curiae.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Frederick Tucker was charged with committing an armed robbery upon a clerk at a liquor store in Baton Rouge, in violation of R.S. 14:64. He was tried in January 1975, found guilty, and sentenced to thirty years at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals to this Court on the basis of a single assignment of error.

Defendant argues that the trial judge erred in ruling admissible evidence of an oral inculpatory statement made by defendant to police officers. He contends that the statement was not shown to have been made voluntarily. Specifically, defendant argues that his statement was the result of a promise of leniency made by the officers to him. He says that such a promise can be inferred from the fact that the officers transported defendant from Baton Rouge to New Orleans where he led them to a spot where a suspect in another crime was supposed to be.

In order for an oral inculpatory statement to be admissible, the state must prove beyond a reasonable doubt that the statement was freely and voluntarily made. R.S. 15:451; La.Const. art. I, § 11 (1921); State v. Sims, 310 So.2d 587 (La.1975); State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969). On review, however, the decision of the trial judge is given great weight. State v. Sims, supra; State v. Hall, 257 La. 253, 242 So.2d 239 (1970) and the cases cited therein.

At the trial of defendant Tucker, the two police officers present at the time the statement was made testified out of the presence of the jury. Both men stated that they first read a rights form to defendant fully advising him of all his rights, and that he understood and waived them. Thereafter defendant made the statement in question. Both officers steadfastly testified that the oral statement was voluntarily given after they had questioned defendant for thirty minutes at about 11:30 in the morning on March 28, 1974. Each man specifically stated that no inducements or promises were made to the defendant. On cross-examination, defense counsel asked Officer Gill if he had tried to solicit defendant’s help in any way, and the officer denied that he had. Counsel asked if he had promised to “go easy” on defendant if he helped the officers with anything, and the officer said he had not. When counsel asked the officer if he had asked defendant to help him with the case of “Pony Cat” Smith, Officer Gill replied that after defendant had given his statement defendant himself mentioned “Pony Cat” Smith. Counsel did not question Officer Gill further about this conversation, but the other officer, Detective Alford, admitted on cross-examination that, in order for defendant to show them “where a guy lived,” they had taken Tucker to New Orleans after he had already voluntarily confessed, probably on the evening of the day on which he had earlier been arrested and given his statement. He stated that defendant brought up the subject of this other person, rather than responding to questions about it.

The defendant presented no witnesses at all to attack the state’s showing of the free and voluntary nature of the confession during the admissibility hearing out of the presence of the jury. The record does reveal that the defendant testified in his own behalf after the close of the state’s case in chief. On that occasion, he said that Officer Gill promised to help him get out of the armed robbery charge if he helped the police apprehend Paul Smith. However, even Tucker did not testify that he confessed to the crime in response to an offer of leniency; he testified that he led the officers to the suspect’s alleged hiding place in response to a promise of leniency. Furthermore, his testimony came during the presentation of his defense, long after the trial judge had determined, outside of the presence of the jury, that the confession was admissible. Therefore, defendant’s testimony does not affect the admissibility of the confession, but merely affects the weight the confession will be given by the jury. State v. Stevenson, 323 So.2d 762 (La.1975); State v. Sears, 298 So.2d 814 (La.1974).

In light of the content of this record, including the unrebutted testimony of the two officers that no promise of leniency was ever made to defendant in order to persuade him to confess, we hold that the trial court did not err in ruling defendant’s oral inculpatory statement admissible.

A second matter has been presented to the Court on this appeal. Another attorney was granted leave by the Court to file a brief as amicus curiae on behalf of defendant Tucker. Amicus counsel argued that reference at the trial to possible misconduct by defendant’s attorney prejudiced Tucker’s right to a fair trial. He argued to the Court that the appointed defense attorney’s alleged misconduct could hot be imputed to defendant and should be imputed to the state, and he asks that Tucker’s conviction be reversed and a new trial granted. Were this contention properly before the Court, it would be given our consideration. However, the proper remedy for allegations such as these (relating, we assume, to ineffective assistance of counsel or denial of due process) lies through the vehicle of a writ of habeas corpus filed in the district court by the purportedly aggrieved defendant. If defendant Tucker should wish to pursue this matter, he can apply for a writ of habeas corpus. If sufficient and appropriate grounds are stated, an evidentiary hearing will be granted so that he may make a complete record in support of the allegations and plea for habeas relief. Needless to say, this Court offers no view concerning the merit of such habeas application as may be brought hereinafter.

Consequently, the motion of amicus curiae to supplement the record is denied, and, there being no merit in the one assignment of error before us, defendant Frederick Tucker’s conviction and sentence are affirmed.


text:
    STATE of Louisiana v. John J. BELL et al.
    No. 58149.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: John J. Bell, et al, applying for certiorari, mandamus and. prohibition.

Writ denied. Applicant has an adequate remedy by appeal in the event of conviction.

DIXON, J., dissents and is of the opinion the writ should be granted.

CALOGERO, J., is of the opinion that this writ should not be considered except co-incident with this Court’s consideration of the State’s application in State v. Bell, #58,141, presently pending in this Court, the issue in the two applications being inextricably interwoven.


text:
    4626 CORPORATION v. Mike MERRIAM.
    No. 58017.
    Supreme Court of Louisiana.
    June 4, 1976.
   In re: Mike Merriam applying for cer-tiorari, or writ of review, to the Court of Appeal, 329 So.2d 885, First Circuit, Parish of East Baton Rouge.

Writ refused. On the facts found by the Court of Appeal, the result is correct.

SUMMERS, J., is of the opinion the writ should be granted.

DIXON, J., is of the opinion the writ should be granted.


author: TATE, Justice.

text:
    STATE of Louisiana v. Dale A. SNODDY.
    No. 57386.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.

      Dale A. Snoddy, in pro per., George M. Leppert, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of simple burglary, La.R.S. 14:62, and sentenced to five years at hard labor, suspended. The defendant appeals in proper person. (An attorney was also appointed to assist him.)

Context Facts

The burglary (unauthorized entry with intent to commit a theft) is proved. Entrance into a country club was forced, and a screwdriver was stolen.

The defense is that the accused was not the burglar but that he, along with his brother, was following the burglars, who had themselves burglarized young Snoddy’s automobile some minutes earlier.

Snoddy, a very young man, and his younger brother testified that they observed some unknown men taking tools from the backseat of their automobile parked outside an apartment complex. Snoddy and his brother followed the burglars on foot to a point about one-half mile distant, hoping to glimpse the license plate of the burglars’ car.

Snoddy and his brother testified that they waited outside the country club into which the two burglars had apparently entered. They approached and, outside on an air conditioner, found wrapped in a towel their stolen tools (a tin clip, and a pruning shear), together with a screwdriver (which was taken either from their car or from the country club). At this moment, a burglar alarm commenced ringing, and Snoddy and his brother ran towards a field, to avoid the burglars (they said).

The state’s case identifying Snoddy as the offender is represented by the testimony of two officers. They were on routine patrol. Their lights picked up two figures running. The officers pursued the two figures and arrested young Snod-dy and his brother, finding in the vicinity the towel, the pruning shears, the tin snips, and (the following morning) the screwdriver.

The defendant’s explanation for the discovery of himself and his tools at the scene is unusual, if not improbable. On the other hand, the young men from the moment of their arrest have persisted in this explanation, without inconsistency and with apparent straightforwardness. That their version is not incredible is seemingly uncorroborated by the close (9-3) vote by which the jury convicted.

Contentions on Appeal

(1)

At his trial, the defendant Snoddy was represented by the public defender. A most serious contention of his appeal is that he was refused permission to represent himself, despite his repeated requests to do so. If so, he was denied his constitutional right to conduct his own defense and is, thus, entitled to a new trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Because of our concern as to this issue, we ordered the record supplemented by the transcript of the hearings on preliminary motions and fixings.

We do find that, as Snoddy insists, from the beginning his position was that he was innocent and that he did not need the assistance of an attorney. His repeated reiteration of this stand was, as he now states, somewhat irksome to the court and the prosecutorial staff.

However, see pp. 6-7 of the supplemental transcript, the trial court finally informed him, “If you don’t want an attorney you are entitled to represent yourself”; adding, “but I can only question you in that regard after you have at least discussed it with an attorney.”

To this the accused responded: “There is a possibility I need to discuss it with an attorney.” The record then shows that the defendant, after consultation with a public defender, appeared with the latter. The public defender stated, apparently with the accused’s consent, “Your Honor, we represent Mr. Snoddy. We will waive formal arraignment and he will enter his own plea of not guilty.” Immediately thereafter upon being asked “How do you plead?”, the accused personally replied, “Not guilty”.

Under these circumstances, we find that the defendant knowingly waived his right to conduct his own defense and accepted representation by the public defender. This being so, he cannot subsequently urge that a conviction be set aside because of a denial of his right to be his own attorney. State v. Nix, 327 So.2d 301, 353-54 (1975).

(2)

The other assignments of error made by the accused principally relate to an attack on the factual accuracy of the arresting police officers.

He points out the improbability of their testimony as to how they spotted a man running from the building, and he relies with some confidence upon the apparent inaccuracy of their testimony that no loud audible burglar alarm was sounding at the time of the crime; as is seemingly contradicted by the testimony of the country club officer and employee. (The testimony of the officers that no alarm was sounding was, of course, damaging to the accused, since his own defense of the actions in running from the scene of the burglary depended in part upon the sounding of the alarm — by his testimony, allegedly caused by the action of the true burglars).

Nevertheless, the evaluation of the credibility of the witnesses is not reviewable by us on appeal. The determination of the trial jury is final, for appellate purposes, where (as here) there is some evidence from which the jury could find the defendant guilty, however close its vote.

The accused’s other contentions are likewise without merit: (a) In the absence of objection, or of any showing of purposeful discrimination to reach such result, his complaint that he was tried by an all-male jury presents no reviewable issue; (b) Likewise, his complaint that he was not afforded a preliminary examination nor a pre-trial conference or discovery, does not, in absence of prior requests, present a reversible issue, especially where no prejudice is claimed or shown; (c) Preter-mitting whether the issue is properly raised procedurally, the record demonstrates probable cause for the officers to pursue and arrest the defendant and his brother ¿nd to obtain a book of matches (see below) from the latter.

(3)

At the trial, the public defender reserved a bill of exceptions to the trial court’s rule permitting the state to put part of its casein-chief on as allegedly rebuttal evidence. The attorney appointed by us (to assist the defendant conduct his own appeal) argues most persuasively that the trial court’s ruling is erroneous.

The rebuttal evidence is, as the attorney alleges, in reality part of the state’s casein-chief. It is most damaging, for it is the only direct evidence tending to indicate that the young men had actually gone inside the burglarized building. This evidence relates to a booklet of matches marked with the country club’s initials, which was found in the pocket of the defendant’s younger brother at the time of their arrest.

The state may not reserve part of its case-in-chief for rebuttal testimony, after the defense has put on its case and when it can no longer present evidence to rebut the state’s case. This is contrary to statute, to ancient jurisprudence, and to rules of fair play. La.R.S. 15:282; State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972); State v. Davis, 246 La. 383, 164 So.2d 589 (1964); 2 Marr’s Criminal Jurisprudence of Louisiana, Section 633 (1923).

In the present case, the state did not refer to the matches in its case-in-chief. It referred to them for the first time on cross-examination of young Snoddy’s brother, when the latter testified in support of the accused’s defense.

The brother was then asked about the booklet of matches. He identified the booklet as that taken from his pocket, and it was then introduced into evidence by the state. Upon being questioned where he had gotten the matches, he said that he found them by the tools and picked them up at the same time.

Cross-examination immediately ended, and the defense rested.

Over objection, the state then called the police officer to testify on rebuttal as to the matches. The police officer corroborated the Snoddy brother’s testimony, including that he had told the officer he found the matches on the ground. The police officer then testified that the matches were dry, whereas (due to a heavy dew) the tools found on the ground were wet.

Technically, the police officer’s testimony about the circumstances of the dryness of the matches may have tended to rebut the younger Snoddy’s testimony that he had found the matches near the tools, which themselves were wet. (In fairness, the Snoddy testimony could well mean that both matches and tools were dry when picked up from an air conditioner attached to the building, while only the tools became wet when dropped on the ground during the chase.)

A close issue is presented by the state’s failure to introduce the evidence of the matches in its case-in-chief, and its introduction of allegedly rebuttal testimony as to circumstances of their finding essentially not denied by the testimony on behalf of the defendant.

Nevertheless, allowing for the large discretion of the trial court in such matters, we cannot say there is reversible error; especially since the rebuttal testimony is not essentially denied by the defense, nor did it inject any new issue into the trial against which the defendant had no fair opportunity to present countering evidence.

Decree

For the reasons assigned, therefore, we affirm the conviction and sentence.

AFFIRMED.

      . And indeed, if the purpose of withholding the issue until cross-examination was the hope that the apparently truthful boys would damage their credibility by denying the finding of the matches (thus permitting their proper introduction on rebuttal), the failure of such a tactic should not nevertheless allow introduction as “rebuttal” evidence of testimony properly part of the state’s case-in-chief.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Cleveland G. WILLIAMS and Michael L. Herbert.
    No. 57268.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.
    John J. Dolan, New Orleans, for Michael Herbert.
    Philip E. O’Neill, Orleans Indigent Defender Program, Kenner, for Cleveland G. Williams and Michael Herbert.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Michael L. Herbert and Cleveland G. Williams were convicted of armed robbery on April 25, 1973. La.R.S. 14:64. Each was sentenced to imprisonment at hard labor for fifty years. Herbert relies upon a single bill of exceptions reserved to the overruling of his motion for a new trial. Williams urges no bills of exceptions or assignments of error, relying entirely upon unspecified errors patent on the face of the record.

Herbert’s motion for a new trial alleges that the court should order a new trial in this matter under Article 851(5) of the Code of Criminal Procedure in order to further the ends of justice. That Article requires that, on motion of defendant, the court shall grant a new trial whenever “[t]he court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”

Other than the allegations referred to, there is nothing in the record to indicate the basis for the motion. In his per curi-am to the bill of exceptions reserved by the defendant to the overruling of the motion for a new trial the trial judge said:

“The evidence and testimony in this case clearly established beyond a reasonable doubt that the defendant was guilty of the crime charged. It is my opinion that there is no basis in law or fact or for any other reason to grant this defendant a new trial. He received a fair trial, was adequately represented and was found guilty by the jury. There was, in my opinion an overwhelming amount of testimony establishing guilt beyond a reasonable doubt upon which the jury could rely.”

Notwithstanding the fact that no such allegation is made in the motion for a new trial, in brief to this Court defense counsel argues that the ends of justice would be served by granting a new trial because Herbert is not of sound mind and understanding and was not so at the time of the commission of the crime. He asserts that defendant has been diagnosed as a paranoid schizophrenic and was a patient at East Louisiana State Hospital for the criminally insane from December 16, 1971 to August 21, 1972. To hold him responsible for his actions is a denial of due process, he argues.

These are the identical claims asserted by defendant prior to his trial in an application for a hearing to determine his mental condition to stand trial, and his mental condition at the time of the commission of the alleged offense. In response to that application, on January 5, 1973, the trial judge appointed Dr. H. E. Braden III and Dr. G. Usdin to constitute a lunacy commission to examine Herbert and report their findings to the court. After a lunacy commission hearing held on January 22, 1973, the trial judge found the defendant to be sane.

Aside from the fact that the motion for a new trial does not properly present the contention that defendant was mentally unsound, that contention has been adjudicated without objection, so far as this record reflects, and no bill of exceptions was timely reserved and perfected to the ruling.

Herbert’s contention is without merit.

Since Williams relies upon errors patent on the face of the record without pointing out wherein the error occurred, and because a review of the pleadings and proceedings fails to disclose any error, Williams’ appeal is without merit. La. Code Crim.Proc. art. 920.

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


text:
    Thomas Doylas SUTTON v. Larry H. LANGLEY et al.
    No. 58061.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Commercial Insurance Company of Newark, New Jersey applying for certi-orari or writ of review to the Court of Appeal, 330 So.2d 321, Second Circuit, Parish of Caddo.

Writ denied.

No error in court of appeal judgment.

SUMMERS, J., is of the opinion the writ should be granted.

MARCUS, J., is of the opinion that the writ should be granted.


text:
    STATE of Louisiana v. Timothy RUDOLPH.
    No. 57327.
    Supreme Court of Louisiana.
    May 17, 1976.

      Arthur A. Lemann, III, Supervising Atty., New Orleans, Joseph A. Mengacci, Student Practitioner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Ralph Capitelli, Louise S. Korns, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

On January 28, 1973, Lindell Bickham, a cashier at a Lil General Store, Í738 Whitney Avenue, New Orleans, Louisiana, was robbed of sixty dollars ($60.00) by a man with a rifle. Defendant Timothy Rudolph was arrested in connection with this armed robbery in February 1973, after the victim picked out defendant’s picture from a display of photographs and identified him as the robber. Following this arrest, defendant was released without being formally charged. Later defendant was arrested in connection with another offense. On April 16, 1973, a corporeal lineup was conducted at which time defendant was again identified as the perpetrator of the January 28, 1973 robbery of the Lil General Store. Ten days later the district attorney filed a bill of information against defendant charging him with armed robbery in violation of La.R.S. 14:64. On November 19, 1974, after trial by jury, defendant was found guilty as charged and was subsequently sentenced to serve sixty years imprisonment at hard labor.

Relying on six assignments of error, defendant now appeals from his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 and' 3.

These assignments of error relate to the trial court’s denial of defendant’s motions for a change of venue and, alternatively, for a thirty day continuance, which were urged as a means of lessening the impact of publicity associating defendant with the Jo Ellen Smith case.

In an original motion for change of venue, defendant argued that because of extensive media coverage of defendant’s involvement in the Jo Ellen Smith murder case, defendant could not receive a fair and impartial trial in Orleans Parish. This motion was heard on October 30, 1974, at which time defendant introduced a series of newspaper articles about that murder case in which defendant was mentioned by name. In denying the motion, the trial judge concluded : “I think that we could find twelve jurors that wouldn’t be biased in any way against the defendant . . . ” On the morning of trial, the motion for a change of venue was reurged, together with an alternative motion for a continuance, based on the then current issue of New Orleans Magazine featuring “[a]n account of the murder of Jo Ellen Smith, and the subsequent trial of Stephen Berry.” This motion was also denied.

Article 622 of the Louisiana Code of Criminal Procedure places the burden on the defendant to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. State v. Berry, 329 So.2d 728 (La.1976), (decided March 29, 1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Bell, 315 So.2d 307 (La.1975). In establishing this proof, the defendant must show more than mere knowledge by the public of the facts surrounding the offense. There must be proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish in question. State v. Berry, supra.; State v. Stewart, supra.; State v. Flood, 301 So.2d 637 (La.1974); State v. Leichman, 286 So.2d 649 (La.1973).

However, under the test set forth in article 622 of the Code of Criminal Procedure, the fact that a jury can be selected, 1. e., that the requisite number of jurors are not subject to a valid challenge for cause, does not mandate the conclusion that a motion for change of venue was properly denied by the trial court. As stated in Official Revision Comment (b) to Louisiana Code of Criminal Procedure article 622, and noted with approval in both State v. Berry, supra. and State v. Bell, supra.:

“A change of venue ought to be available even though, individually, each juror is not susceptible to a valid challenge for cause, if the defendant can show that overriding all of these things and superimposed upon all of them he still cannot get a fair trial. The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.”

While the trial judge in the instant case did state, in denying the original motion for a change of venue, that he felt a jury could be selected, his reasons set forth in his per curiam opinion indicate that he did consider other factors. In that opinion, the trial judge stated in part as follows:

“Although there was extensive publicity of the rape-murder it focused on Stephen Berry, the major suspect in the case. At the time the first motion for a change of venue was made the publicity surrounding the rape-murder had substantially subsided. The article in the ‘New Orleans Magazine’ may have reminded the public of the rape-murder (although it should be noted that defendant did not prove the circulation of the magazine), however, that' article also focused on Stephen Berry. Subsequently Berry was found guilty and sentenced to life imprisonment for that offense which fact also received wide publicity. There has been no publicity concerning this armed robbery. Defendant’s evidence consisted only of the newspaper clippings and the magazine article concerning a different offense than the armed robbery for which the defendant was on trial. There has been no proof of prejudice to the defendant. The Court believes that a metropolitan area like New Orleans may be the place defendant would best receive a fair trial.”

While we recognize the inherent difficulty of presenting direct evidence of prejudice against a defendant and acknowledge that positive proof of such prejudice is not generally available or indeed always required, we nonetheless conclude that in the instant case there was not a sufficient indication of the impact of the news media coverage on the public mind to sustain defendant’s burden of proof.

The granting or denial of a motion for change of venue rests within the sound discretion of the trial judge and his ruling-will not be disturbed unless the evidence affirmatively establishes that the ruling was erroneous and an abuse of judicial discretion. State v. Berry, supra; State v. Stewart, supra; State v. Richmond, 284 So.2d 317 (La.1973). Under the evidence presented to support the defendant’s motion for change of venue, we conclude that the trial judge did not abuse that discretion.

With respect to defendant’s alternative motion for a thirty (30) day continuance, article 712 of the Louisiana Code of Criminal Procedure provides that “[a] motion for a continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.” For the same reasons discussed above in relation to the motion for change of venue, we conclude that the trial judge did not act unreasonably and did not abuse his discretion in refusing to grant the continuance.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2.

By this assignment of error, defendant argues that the trial court erred when it refused to grant defendant’s motion to suppress Lindell Bickham’s identification. He contends that the identification was based on illegal photographic and corporeal lineups and that there was no independent basis for the in-court identification.

The photographic lineup was challenged on. the grounds that the state was unable to produce the actual photographs displayed to Lindell Bickham, the victim of the robbery. At the hearing on the motion to suppress the identification, Officer Adams, who had conducted the photographic display, testified tha the original photographs shown to Bick-ham had been lost. However, the officer had noted the Bureau of Investigation numbers from the front of each photograph in his supplemental report. These B of I numbers enabled him to obtain additional photographs which, if not identical to the originals, definitely portrayed the same individuals who were pictured in the originals.

In State v. Johnson, 306 So.2d 724 (La.1975), this Court rejected the defendant’s argument that where the original photographs displayed to a witness are replaced by duplicates, “the jury was deprived of evidence it needed to determine whether the photographs themselves were free from the taint of suggestibility.” Defendant attempts to distinguish State v. Johnson, supra., arguing that while the witness in that case testified that the duplicates were the same as the original prints exhibited to him, in the instant case Bickham was unable to state positively that the prints were identical to the originals. He did, however, testify that in all probability they were the same.

Defendant argues that since the state could not verify that all the prints produced at the hearing were identical to the photographs shown to the witness, the photographic display should have been presumed by the trial court to have been impermis-sibly suggestive. However, we are not here required to determine whether this argument is meritorious. The photographs in question were not introduced at trial. Thus for the reasons hereinafter discussed we conclude that even if the photographic display was impermissibly suggestive defendant was not prejudiced thereby.

It is well-established that even if a pretrial identification of an accused was the product of impermissible suggestion, the in-court identification is nevertheless admissible if it has an independent basis. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Bland, 310 So.2d 622 (La.1975); State v. Newman, 283 So.2d 756 (La.1973). In the instant case Lindell Bickham, the identifying witness, testified that he had observed defendant hanging around the Lil General store for about a year prior to the robbery; that he knew defendant’s first name was “Timmy” and so informed the police the night of the robbery; and that on the night in question defendant wore a hooded sweat jacket which left his face exposed, he was in the well-lighted store for approximately three minutes and he came within two feet of the witness. Under these circumstances, there was an adequate independent basis for the in-court identification by Bickham.

With respect to the corporeal lineup, defendant argues that the composition of the lineup itself was conducive to mistaken identification in that Stephen Berry was a participant in the lineup and defendant was not represented by counsel at that time.

The constitutional validity of an identification procedure depends on whether, judging from “the totality of circumstances surrounding it,” it was “so unnecessarily suggestive and conducive to irreparable mistaken identification,” that an accused was denied due process of law. Stovall v. Denno, supra.; State v. Newman, supra. The lineup complained of in this case was composed of thirteen subjects exhibited in two separate groups, one group of seven members and one of six. Defendant was placed in the second group of six, along with Stephen Berry. Bick-ham testified at the hearing on the motion to suppress the identification that he recognized Berry in the lineup, and that he had seen pictures of both Berry and defendant in the newspaper. However, there is no indication that Berry’s presence in the lineup influenced Bickham’s identification. Furthermore, as previously noted, there was an independent basis for the witness’ in-court identification so that even if the corporeal lineup was tainted, defendant was not prejudiced thereby. See State v. Cloud, 319 So.2d 793 (La.1975); State v. Bland, supra.; State v. Newman, supra.

Defendant also argues that he was entitled to have counsel present at the April 16, 1973 lineup, which took place ten days prior to the filing of a bill of information against defendant on April 26, 1973. Defense counsel contends that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) did not limit the right to counsel to post-indictment matters, but rather set forth a test of “initiation of adversary judicial criminal proceedings” which can be met by factors other than merely the date of formal charges. It is argued that this test is satisfied in the instant case because defendant was arrested in connection with the robbery, released without being charged and then later rearrested and placed in the linteup.

The United States Supreme Court in Kirby v. Illinois, supra., held that an accused is entitled to the right to counsel when adversary criminal proceedings are initiated, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Arrest alone does not entitle an accused to have counsel present at his lineup. As the Court in Kirby v. Illinois, supra., noted:

“The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified.”

Applying the holding in Kirby v. Illinois, supra., this Court has consistently held that the presence of an attorney is not required at lineups held prior to the filing of bills of information. State v. Stewart, 325 So.2d 819 (La.1976); State v. Nero, 319 So.2d 303 (1975); State v. Lawrence, 294 So.2d 476 (La.1974).

In the instant case, defendant was not formally charged until ten days after the lineup. His arrest, release, and rearrest did not mark the initiation of adversary criminal proceedings against him. Therefore, defendant was not entitled to have counsel present to represent him at the lineup. This does not mean, however, that an accused has no protection against an abuse of identification procedures during the course of a criminal investigation. As noted above, unnecessarily suggestive lineups are violative of due process of law. See Stovall v. Denno, supra., State v. Newman, supra. However, no such showing was made under the facts of this case.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4.

By this assignment of error, defendant argues that it was error for the trial court to refuse to allow defense counsel to challenge for cause juror number 246.

Prior to voir dire examination, defense counsel, in an effort to insure that defendant’s trial on this matter would not be adversely affected by the extensive media coverage of the Jo Ellen Smith murder case, informed the prospective jurors that defendant had been arrested along with Stephen Berry for that offense, that Berry had been convicted, but that the charges against defendant had been dismissed. Defense counsel then inquired whether knowledge of these facts would affect their ability to give defendant a fair trial. Juror number 246 responded that he had a nineteen year old daughter who was a nursing student “and I don’t know whether that would influence me or not, I would try not to, but.” He then added “I don’t know until I hear the evidence . . . right now I would say it wouldn’t but that doubt is there.” In response to further questioning by the assistant district attorney, the juror testified that he had no preconceived opinion relative to the instant armed robbery case and that he would try to wait until he had heard all the evidence before reaching a decision. While the juror did equivocate when questioned again by defense counsel, in response to the trial judge’s question “if you were asked to pass your verdict right now, either guilt or innocence, do you have a decision at this point that you would make?”, the juror stated, “No, I couldn’t; I haven’t heard anything yet.” At the conclusion of this voir dire examination, defense counsel moved for a challenge for cause, which was denied by the trial court.

Louisiana Code of Criminal Procedure article 797 provides that the defendant may challenge a juror for cause on the ground that:

“(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.”

The determination of the qualification of a juror is within the sound discretion of the trial judge. State v. Johnson, 324 So.2d 349 (La.1975); State v. Frazier, 283 So.2d 261 (La.1973). In reviewing the entire transcript of the voir dire examination of this juror, we do not find any abuse of discretion in the trial judge’s refusal to grant the challenge for cause. While the juror did make some equivocal responses with respect to the effect knowledge of defendant’s arrest in the Jo Ellen Smith case would have on his attitude toward defendant, those responses did not establish that the juror was unable to set aside those feelings and render a fair and impartial decision based on the evidence relative to the instant charge. See State v. Frazier, supra. Indeed the juror clearly indicated that he had no preconceived opinion as to defendant’s guilt or innocence on this armed robbery charge as shown by his statements that “I haven’t heard anything yet”, “[i]t depends on what the witnesses say,” and “I don’t know until I hear the evidence.”

This assignment of errors lacks merit.

ASSIGNMENT OF ERROR NO. S.

At the hearing on the pretrial motions, defendant testified that at the time of the robbery he was staying at 1800 Le-Bouef Court, across the street from the Lil General store where the robbery took place. On cross-examination at trial, however, defendant stated that at the time in question he lived at 3600 Cadillac Street. Over defense counsel’s objection, the trial court admitted into evidence the appropriate page of the transcript of the pre-trial hearing as proof of defendant’s prior inconsistent statement. It is this objection that is the basis of this assignment of error.

La.R.S. 15:493 provides as follows:

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.” (Emphasis added).

When questioned about the earlier statement by the assistant district attorney, defendant several times flatly denied having made it. He then finally conceded: “No, I don’t deny making the statement, I might have been confused. . . . ” Defense counsel argues that this final remark was a distinct admission by defendant that he had made a prior inconsistent statement and that, therefore, page ninety-seven of the transcript of the pre-trial hearings, which contained that statement, should not have been admitted into evidence.

We conclude, that in light of previous denials by defendant and his equivocal and reluctant admission, it was not error for the trial court to allow proof of the prior statement to be admitted into evidence.

The assignment of error lacks merit.

ASSIGNMENT OF ERROR NO.' 6.

This assignment relates to the trial judge’s refusal to declare a mistrial when the jury reported that it was unable to reach a verdict.

The trial began at 11:55 a. m. and at 9:38 p. m. the jury began its deliberations. At 10:05 p. m. they returned to the courtroom to request additional instructions, and resumed their deliberations at 10:15 p. m. At 11:27 p. m., the foreman reported that the jury was unable to reach a verdict, but added that one juror, who was joined by two others, had suggested that if the deliberations could be continued the next morning, perhaps this would break the deadlock. He related that others had said during jury deliberation that they would not change their minds. The court ordered the jury sequestered for the evening, and the following morning they reached a decision.

The trial judge in this instance behaved both sensibly and properly in refusing the motion for a mistrial. Neither the procedure followed nor the judge’s instructions to the jury was coercive; he did not demand that they reach a verdict, but only required that the matter be given further consideration. Nor did he state or imply that the court would not accept a mistrial. In this respect, this case is clearly distinguishable from State v. Rodman, 208 La. 523, 23 So.2d 204 (1945) relied upon by defendant. The court did make the inquiry suggested in State v. Nicholson, 315 So.2d 639 (La.1975), as to whether “other jurors felt the deadlock could be broken.” This language does not require, as defendant suggests, that when several jurors indicate that the deadlock might be broken, the remaining jurors be polled to determine whether they agree. Furthermore, while State v. Mims, 263 La. 193, 267 So.2d 570 (1972) also relied upon by defendant, holds that the court did not err when it permitted the jury to decide whether further deliberations would be fruitful, it did not hold that the jury as a whole must make this decision.

This assignment of error lacks merit.

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

      . Jo Ellen Smith was the daughter of a prominent public official who was raped and murdered while visiting a housing project in Orleans Parish as a student nurse. Stephen Berry and defendant were originally jointly charged in connection with that offense. The charges against defendant, however, were subsequently dropped. Stephen Berry was ultimately convicted on that charge and sentenced to life imprisonment. State v. Berry, 324 So.2d 822 (La.1975).

      . For various factors to be considered when determining whether to change venue see State v. Berry, supra.; State v. Bell, supra.; Annotation 33 A.L.R.3d 17 (1970).

      . See footnote 1.

      . The Court in Kirby v. Illinois, supra., noted that the only deviations from the rule that right to counsel attaches at the initiation of adversary proceedings are Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), where the prime purpose was not “to vindicate the constitutional right to counsel as such, but . . . ‘to guarantee full effectuation of the privilege against self-incrimination . . . . ’ (citation omitted).”

      . As defense counsel exhausted all his peremptory challenges, the issue of the propriety of the trial court’s ruling on this challenge for cause is properly before this Court. State v. Oliphant, 220 La. 489, 56 So.2d 846 (1952).

      . We are not called upon in this ease to decide whether the state can properly rely on article 296 of the Louisiana Code of Criminal Procedure as an alternative basis for the admissibility of this statement. The issue was not raised by either state or defendant and is not necessary to a decision on this assignment of error.


author: CALOGERO, Justice. SANDERS, Chief Justice SUMMERS, Justice

text:
    STATE of Louisiana v. Hugh Lee PROCELL a/k/a R. D. Procell.
    No. 57350.
    Supreme Court of Louisiana.
    May 17, 1976.
    Dissenting Opinion June 2, 1976.
    Rehearing Denied June 18, 1976.

      John P. Godfrey, Many, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Hugh Lee Procell was charged by bill of information in May of 1975 with attempted second degree murder of Clellie Lee Batson in violation of R.S. 14:30.1. Procell was tried by jury, convicted, and sentenced to sixteen years imprisonment. From that conviction and sentence, defendant has perfected this appeal.

The single perfected assignment of error complains that the trial court erred in overruling defendant’s motion to quash the information on the grounds that the jury was improperly constituted. Specifically, defendant alleges that the list from which the petit juries are chosen is not made up of names selected at random from a fair cross section of the community because all qualified citizens were not given an opportunity to be considered for jury service, in contravention of the fifth, sixth, and fourteenth amendments to the Constitution of the United States and of Articles I, Section 16 and V, Section 33 of the Louisiana Constitution of 1974.

We pretermit the question of whether the system of selecting the general -venire violated defendant’s rights under the federal constitution and statutory law.

The Louisiana Constitution of 1974 states that “Every person charged with a crime . is entitled to [an] . . . impartial trial.” La.Const, art. I, § 16 (1974). This guarantee of an impartial trial continues the predecessor provision in the 1921 Constitution. La.Const. art. VII, § 41 (1921). These general provisions which extend to criminal defendants the right to an impartial trial apply to the selection of the general venire by the jury commission of each parish. C.Cr.P. arts. 408, 409. Although the names of the persons which make up the general venire must be selected impartially, each of those persons may not actually have to serve on a jury because he may be exempt from jury service. Before January of 1975, exemptions from jury service were granted by the Legislature. R.S. 13:3042, 13:3056; C.Cr.P. arts. 402, 403. However, the 1974 Constitution changed this system, directing that this Court decide which classes of qualified persons are exemptable.

Specifically, the Constitution mandates that “The supreme court shall provide by rule for exemption of jurors.” La.Const. art. V, § 33(B). In response to this constitutional charge, this Court unanimously passed Rule XXV, effective January 1, 1975, which states in full as follows:

“Section 1. It is the policy of this court that all litigants in Louisiana courts entitled to trial by jury shall have the right to grand, petit and civil juries selected at random from a fair cross-section of the parish wherein the district cottrt convenes, that all qualified citizens shall have the opportunity to he considered for jury service in the district courts of Louisiana and shall have an obligation to serve as jurors when summoned for that purpose, and that no citizen shall be excluded from jury service in the district courts of Louisiana on account of race, color, religion, sex, national origin or economic status.
“Section 2. This court finds that the exemption of the following groups or occupational classes is in the public interest and, accordingly, members of such classes are exempt from jury service:
(a) Public officers in the executive, legislative, or judicial branches of the Government of the United States, or the State, or any subdivision thereof, who are actively engaged in the performance of official duties;
(b) Members in active service in the Armed Forces of the United States and members of the National Guard of this State while on active service;
(c) Members of paid fire or police departments of the State or any subdivision thereof and federal law enforcement officers;
(d) Members of the following groups when regularly and actively engaged in the practice of their professions: attorneys at law, ministers of religion, chiropractors, physicians, dentists, pharmacists and optometrists;
(e) All persons over seventy years of age;
(f) Persons who have served as grand or petit jurors in criminal cases or as trial jurors in civil cases during a period of two years immediately preceding their selection for jury service.
Section 3. Any person may waive his exemption from jury service, but the exemption is personal to him and is not a ground for challenge.” (Emphasis added).

Coincident with this constitutional directive, the Legislature repealed C.Cr.P. art. 402 and amended Article 403 to provide: “Exemptions from jury service shall be as provided by rules of the Louisiana Supreme Court pursuant to Section 33(B) of Article V of the Louisiana Constitution of 1974.”

Our rule was passed with the stated purpose of guaranteeing “that all qualified citizens shall have the opportunity to be considered for jury service.” Under the rule certain classes of qualified citizens are granted a personal exemption from jury service. The rule directs no action on the part of the jury commissioners whose preparation of the general venire is directed by Code of Criminal Procedure Articles 408 et seq. Instead, as we held in State v. Gaines, 315 So.2d 298, 300 (La.1975), the rule “effectively [prohibits] the exclusion from the jury selection process of any qualified segment of our citizenry...."

In Sabine Parish, however, the rule has been used to facilitate the exclusion of segments of the population. There, the five jury commissioners attempt themselves to avoid selecting a person for the general venire whom they believe falls into one of the exemptable classes of citizens. J. E. Wright, the Clerk of Court and one of the five jury commissioners, testified in response to questions as follows:

“Q. In your selection of them (the jurors), do you attempt to grant the exemptions that were set forth in the Supreme Court Order of October 24, 1974 (now Rule XXV) ?
A. Yes, sir.
Q. In other words, you don’t put them in there if you know that they fall within that list of exempted persons?
A. We try not to, yes, sir, unless they waive that exemption to us and none have.
Q. In other words, they would have to waive it to you instead of to the Court, is that right?
A. That is the way we do it, yes, sir.”

Thus, under the system employed in Sabine-Parish, certain persons qualified to serve on juries are never given an opportunity to serve because the jury commissioners exclude their names from the general venire on the basis that they fall under exemption set out by the rule, a rule which allows them, if they choose, to serve notwithstanding the claimable exemption. This exclusion clearly contravenes the letter and spirit of the law. It means that the general venire is not selected impartially, as our constitution and statutes require, and that the general venire was improperly constituted under our Rule XXV, Code of Criminal Procedure Article 403, and Louisiana Constitutional Articles I, § 3 and V, § 33 (1974).

In order to enforce these provisions, we are constrained to reverse the conviction of defendant Procell arid remand his case to the district court for retrial by a petit jury chosen from a general venire which has been selected according to law. The state argues that this Court has recently affirmed two convictions of defendants who were tried and/or indicted by juries drawn from this same general venire. However well-intentioned our efforts were in attempting to ease the commissioners’ change from an unlawful system of choosing the venire to a lawful system, those efforts have proved fruitless. It is now clear to us that the jury commissioners have made no attempt to correct' or change that system. Since we have the chief responsibility for the enforcement of the laws of this state and since the only method open to us for that enforcement is a case-by-case review of convictions, reversing those convictions gained after improper procedures, we must reverse the conviction of defendant Procell.

The state also argues that defendant Procell cannot be heard to complain about the method used to choose the names in the general venire because at his trial he failed to exercise all of his peremptory challenges. It is true, of course, that if a defendant does not exhaust his peremptory challenges he cannot complain on appeal of a judge’s ruling refusing to sustain a challenge for cause. C.Cr.P. art. 800. However, no such exhaustion is a prerequisite to the complaint that the selection of the names for the general venire was unconstitutional.

Although we do not base our ruling on this ground, we note that defendant makes a second argument to us to support his position that the venire was improperly constituted. He complains that the method used by the commissioners to prepare the venire does not produce a jury selected at random from a fair cross section of the community. The basis of this assertion is the fact that names for the general venire are not drawn indiscriminately from available lists, but are selected individually by the commissioners because of their personal judgment that the person selected would make a good juryman. Although this personalized selection offers the opportunity for commissioners to include in the venire only special segments of the population, or to systematically exclude classes of qualified citizens, either of which would violate the fair cross section standard, there is' no evidence in the record before us that this is the case in Sabine Parish. In the absence of any evidence in the record supporting defendant’s allegation that the jury pool did not represent a fair cross section of the community, we cannot assume such a violation. State v. Morgan, 315 So.2d 632 (La.1975); State v. Anderson, 315 So.2d 266 (La.1975).

Accordingly, for the reasons assigned, the conviction and sentence of this defendant are reversed, and the case is remanded for retrial.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents with written reasons.

MARCUS, J., dissents.

SANDERS, Chief Justice

(disesnting).

Article 419 of the Louisiana Code of Criminal Procedure provides:

“A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant.’’

Here, the testimony indicates that the Jury Commission attempted to avoid selecting exempt persons for the general venire, unless they waived the exemption. There is no showing of how many, if any, exempt persons were so excluded.

The method used here to excuse exempt persons from jury service is irregular. However, as to the present case, there is certainly no showing of fraud or great wrong, as required by the above code article. See State v. Lynch, La., 323 So.2d 781 (1975); State v. Larue, La., 324 So.2d 384 (1975).

The irregular practice can be easily corrected by a proper order from the trial court. I find no adequate basis for upsetting the conviction.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I cannot agree with the majority opinion which is in direct contravention of this Court’s unanimous opinion in State v. Clifton, 247 La. 495, 172 So.2d 657 (1965), where we said:

“By his motion to quash appellant also attacks the actions of the jury commission in not including on the general venire the names of persons entitled by law to claim exemption from jury service.
“In support of this contention it is urged that by excluding persons entitled to exemptions from jury service from the general venire the due process and equal protection clauses of the state and federal constitutions are violated in that the grand and petit juries were not drawn from a cross section of the community.
“The statute creating exemptions from jury service, as it existed in November 1962 when the general venire in question was formed, permits exemption to be claimed by officers and clerks of the legislature, the governor and other officials of the State, their clerks and employees, judges, officers of the courts, attorneys-at-law, physicians, surgeons, dentists, school teachers, school bus drivers, apothecaries, fire department employees, commercial travelers, employees of common carriers, persons over sixty-five years of age, persons who had served as grand and petit jurors, telephone and telegraph operators, etc.
“The jury commissioners testified that these persons were not placed upon the list of persons comprising the general venire for, by their experience, it was shown that these exemptions were invariably claimed by the persons entitled to them and because of this the process of jury selection in court was delayed by their inclusion. But appellant points out that the exemptions created by this statute are not in the nature of disqualifications of the categories therein enumerated, but, the exemptions are ‘ * * * personal to those entitled thereto to be claimed by them alone, and the Jury Commission is not authorized by that law to bar those individuals from the jury lists.’ as we declared in State v. Goree, 242 La. 886, 139 So.2d 531 (1962).
“A review of the language of LSA-R.S. 15:174 makes it quite clear that it was irregular for the jury commission to refuse to place the persons belonging to the exempted categories upon the general venire solely because they were entitled to claim exemption from jury service by that act.
“However, it has often been held that persons in this category may properly be excluded from jury service by state law without impairing the right of the' accused to a jury selected from a cross section of the community when the excluded categories are such as those concerned with official public duties, health, spiritual affairs, education, legal counsel, etc., as is true of those entitled to exemptions under our law. In such cases it is said that the best needs and interests of the community are served by permitting these categories to continue their services without the interruptions incident to jury service. Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899 (1906); 21 Tul.L.Rev. 116 (1946).
“What we found in the Goree case was that there were many Negroes in that parish but not many were qualified, and among those who were qualified many were Negro professors, school bus drivers and others who were entitled to claim exemptions from jury service. By excluding these exempted categories from the general venire, we found the jury commission thereby reduced substantially the number of qualified Negroes who' might be included on the jury lists. The accused in the Goree case were Negroes and, because of the limited number of qualified Negroes in that parish, and because no Negroes had been included on the juries for many years, we noted that the exclusion of Negroes in the exempted categories contributed substantially to the total exclusion of Negroes. This combination of circumstances, we held, established a prima facie case of systematic and intentional exclusion on the basis of race and color in direct conflict with the Constitution. The exclusion of Negroes entitled to claim exemptions only contributed to the system; it was not, in itself, the sole basis for the decision in the Goree case.
“In the case at bar it does not appear that defendant belonged to an excluded class such as was true of the Negroes in the Goree case, and, even with the exclusion of persons entitled to exemptions in the case at bar, there remained a sufficient number of qualified jurors from an adequate cross section of the parish to assure a fair and impartial trial to the accused without any evidence of discrimination against the class to which he belonged. There is nothing to indicate that inclusion of any of the exempted categories might have altered the jury verdict. Here, as our Federal Supreme Court has observed (Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1946)), we may reiterate that,
‘This Court * * * has never entertained a defendant’s objection to exclusion from the jury except when he was a member of the excluded class. * * * Even in the Negro cases this Court has never undertaken to say that a want of proportionate representation of groups, which is not proved to be deliberate and intentional, is sufficient to violate the Constitution.’ ”

I respectfully dissent.

      . The same guarantee, of course, is afforded to criminal defendants by the federal constitution. The United States Supreme Court has held that the sixth amendment right to an impartial jury encompasses a fundamental right to trial by a jury which is a truly representative cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). See Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This sixth amendment right applies to trials in state eases through the fourteenth amendment. Taylor v. Louisiana, swpra.

      . Of course, there are other reasons that a particular person may not be required to serve on a jury; for example, he may be challenged for cause. C.Cr.P. art. 797.

      . A qualified citizen is one who has reached the age of majority La.Const. art. V, § 33(A) (1974) and who meets the qualifications set out by the Legislature in C.Cr.P. art. 401.

      . It was felt that taking the responsibility for exemptions from the Legislature would lessen the power of particular interest groups to provide for their members exemptions from jury service. This change would presumably raise the number of qualified citizens available for jury service. XI Transcripts of the Constitutional Convention of 1974, 36th Convention Day, pp. 98t110.

      .No dispute exists between the state and defense as to the method used in Sabine Parish to prepare the lists of names which make up the general venire. The state and defense have stipulated to the testimony of Elmo Langton, the Registrar of Voters for Sabine Parish, and J. E. Wright, the Clerk of Court and one of the five Jury Commissioners of the Parish. The parties likewise stipulated that the other four jury commissioners’ testimony would be consistent with the stipulated testimony of Mr. Wright.

      . See State v. Lynch, 323 So.2d 781 (La.1975); State v. Larue, 324 So.2d 384 (La.1975).

      . When questioned by the court in oral argument, the prosecutor acknowledged that no changes were made nor contemplated following the general venire and petit jury selection in the cases of Lynch, Larue, and the case now under consideration.

      . The system used in this parish is very different from the system we approved in State v. Millsap, 258 La. 883, 248 So.2d 324, 329 (1971) where we described the system used in preparing the venire in this way:
      “Each of the five jury commissioners submits lists of names from which individuals are selected to supplement the general venire. These lists are, for example, telephone books, light meter lists, voter registration rolls, union memberships, employee lists of large companies, a Junior Chamber of Commerce membership roster and church memberships.
      * J|< * * *
      “Prom these lists, names are selected at random, such as every third name, and no effort is made to include or exclude any particular class. The lists contain names from all walks of life an all geographic areas. The venire is truly composed of a cross section of the eligible population, selected ‘impartially’ in keeping with the mandate of Article 408 of the Code of Criminal Procedure.”

      . See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); State v. Anderson, 315 So.2d 266 (La.1975) and the cases cited therein.

      . LSA-R.S. 16:174 as amended by Act 215 of 1962.

      . Although the jury commissioners testified to this effect, they also testified that it was possible that some persons entitled to exemptions may have been included if they were unaware of their occupations. Our review of the evidence establishes that some of the persons entitled to exemptions were included on the general venire.


text:
    Thomas Doylas SUTTON v. Larry H. LANGLEY et al.
    No. 58048.
    Supreme Court of Louisiana.
    June 11, 1976.
   In re: Larry H. Langley, John H. Thompson and Empire Ins. Co., applying for Certiorari, or writ of review, to the Court of Appeal, 330 So.2d 321, Second Circuit, Parish of Caddo.

Writ denied. On the facts found by the Court of Appeal there is no error in the judgment complained of.

SUMMERS, J., is of the opinion the writ should be granted.

MARCUS, J., is of the opinion that the writ should be granted.


text:
    E. C. CHAPPELLE, Jr. v. The GREATER BATON ROUGE AIRPORT DISTRICT et al.
    No. 58025.
    Supreme Court of Louisiana.
    June 9, 1976.
   In re: E. C. Chappelle, Jr., applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 329 So.2d 810.

Writ denied; no merit in the assignment of errors.

DIXON, J., is of the opinion the writ should be granted.

CALOGERO, J., is of the opinion the writ should be granted. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) mandates relief for applicant.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Don E. DAVIS.
    No. 57365.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.
    John J. Dolan, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Don E. Davis was charged by bill of information with attempted simple burglary. La.R.S. 14:27; La.R.S. 14:62. After trial by jury, he was found guilty as charged and was thereafter sentenced to serve one year at hard labor. The district attorney subsequently filed a bill of information against defendant under La.R.S. 15:529.1 charging him with being an habitual offender. It was alleged that, in addition, to the present felony conviction for attempted simple burglary, defendant had been convicted in 1973 of the crime of simple burglary, also a felony. After a hearing, the trial judge found defendant guilty of being an habitual offender, vacated the previous sentence imposed, and sentenced him to serve two years at hard labor. Defendant appeals from his conviction and sentence.

Defendant made two objections during the course of the trial. However, defendant notified the trial judge that he would perfect no assignments of error on appeal and, in brief to this court, now considers that the two objections made at trial have no merit. Consequently, absent errors designated in assignment of errors, the scope of our appellate review is limited to the consideration of errors that are discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim. P. art. 920(2), as amended, La.Acts 1974, No. 207, § 1. We have scrutinized the record for such errors and have found none.

DECREE

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