author: DIXON, Justice. TATE, Justice, SUMMERS, Justice

text:
    Chester FRANK v. Elin PITRE, Sheriff of Evangeline Parish.
    No. 59630.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.

      Marion Overton White, White & Pitre, Opelousas, for plaintiff-appellee.
    J. Wendel Fusilier, Fusilier, Pucheu & Soileau, Ville Platte, for defendant-appellant.
   DIXON, Justice.

This application was granted to review the ruling of the Court of Appeal, 341 So.2d 1376 (La.App. 3d Cir. 1977), in awarding damages to a policeman who had suffered gunshot wounds in the performance of his duty. Plaintiff had been shot in attempting to quell a barroom disturbance by one L. J. Dick, who was killed in the melee. Dick was supposed to be a prisoner in the Evangeline Parish jail at the time. Defendant, Elin Pitre, was the custodian of the jail, and was cast in judgment.

Dick was a young man, recently returned on parole from Angola where he was serving a sentence for burglary. While on parole he was again arrested for burglary and was in jail on that charge and as a parole violator.

The courts below found that Dick had been permitted to leave the jail on the Saturday in question under a lenient policy of granting “passes” to certain prisoners. Testimony of deputies (Pitre did not testify) tending to establish that Dick escaped from the antiquated jail with a key they found in his bed was not believed.

Accepting the facts relied upon by the courts below to find the defendant negligent, we are unable to agree with their conclusion that there was sufficient causation between the negligence and the injury to cast the defendant. The Court of Appeal held that one of the main reasons to incarcerate a prisoner is to protect the public from him, and that it was a natural, probable and foreseeable consequence that Dick might intentionally injure someone if released.

A prisoner arrested for burglary is entitled to bail. Art. 1, § 18, La.Const.1974. The purpose for incarceration after arrest for a crime is to assure the presence of the accused for trial. Although a parolee does not have the constitutional right to bail, he may be admitted to bail within the discretion of the trial judge. Argro v. United States, 505 F.2d 1374 (1974); U. S. v. Schreiber, D.C., 367 F.Supp. 791 (1973). A parole violator is entitled to a quick “probable cause” hearing when charged with violating the conditions of release. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); R.S. 15:574.2-574.11. It is true that a parole officer may cause to be incarcerated a parolee suspected of a violation when the delay for a hearing might cause an undue risk to the public or to the parolee. There is no such evidence in this record. The probation or parole officer merely placed a detainer on Dick when he was jailed for burglary, apparently awaiting the conviction to commence revocation proceedings. (Dick had been in jail about a month when the shooting occurred). Since there was nothing in Dick’s background to connect him with serious, violent crime, or with shooting, we cannot agree with the conclusion that one of the main purposes of the incarceration of Dick was to protect the public from intentional injury by him.

This case is not the first in which the liability of those charged with the custody of prisoners was at issue. In Green v. State of Louisiana, 91 So.2d 153 (La.App. 1st Cir. 1956), plaintiffs filed suit against the State for damages incurred when a fifteen year old inmate of a State institution escaped and negligently operated an automobile in such a fashion as to injure the plaintiffs. Defendant’s exception of no cause of action was sustained by the trial court and the plaintiffs appealed. The First Circuit Court of Appeal affirmed the ruling, holding that even assuming the State employees to be negligent in allowing the prisoner to escape, as a matter of law, the acts were not the “direct, efficient and proximate cause of plaintiffs’ injuries.” Then Judge Tate, writing for the court, discussed the duty in the following manner:

“An institution’s duty to restrain a convicted criminal is not based upon the purpose of protecting the general public from all harms that the prisoner might inflict if he were allowed to escape. A convicted person may be as dangerous on the day of his legal release as he was on the first day that he was confined, although the institution may still be under a legal duty to detain or to release him. There is no more reason for the State to be civilly responsible for the convict’s general misconduct during the period of his escape than for the same misconduct after a legal release, unless there is some further causal relationship than the release or escape to the injuries received. ...” 91 So.2d at 155.

In a case decided by the First Circuit the same day as Green, Webb v. State of Louisiana, 91 So.2d 156 (La.App. 1st Cir. 1956), the plaintiff brought suit against the State alleging that the negligence of State employees allowed a prisoner to obtain a gun and escape. During that escape, the plaintiff was shot. The Court of Appeal affirmed the trial court’s judgment in favor of plaintiff, noting that the inflicting of wounds during an escape was a “most probable and reasonable foreseeable consequence of the original act or acts of negligence.” 91 So.2d at 163. See also Walker v. Interstate Fire & Casualty Insurance Co., 334 So.2d 714 (La.App. 2d Cir. 1976); Geiger v. State of Louisiana, 242 So.2d 606 (La.App. 1st Cir. 1970). One further case is instructive. In Cappel v. Pierson, 15 La.App. 524, 132 So. 391 (2d Cir. 1931), plaintiff brought a wrongful death action against the superintendent of the Central Louisiana State Hospital after an inmate of that institution killed her husband on the day of his release. The Court of Appeal affirmed the judgment in favor of the defendant on two grounds. First, the court stated that the defendant’s good faith execution of his quasi-judicial, discretionary authority could not be questioned in a civil damage suit. Second, and more importantly for our purposes, the court held that even assuming the negligence of defendant in releasing the inmate, that negligent act could not be the basis of liability because it was not the proximate cause of the death of plaintiff’s husband. The court, by quoting a passage from a North Carolina case, noted that the release of the inmate “. was a mere condition which accompanied but did not cause, the injury . . . ” 132 So. at 392.

It is not enough to say that if Dick had not been released under the sheriff’s policy of weekend passes, the tragedy would not have occurred. If Dick’s friend had not given him a ride to town the shooting would not have happened. There must be something more; there must be a closer connection between the act of the defendant and the injury of the plaintiff. Although Professor Stone says, “Proximate cause as a theory in negligence cases appears to be out in Louisiana” (Stone, Tort Doctrine, 12 La. Civil Law Treatise 54), it may be that proximate cause survives, and influences judges to say there is no liability, even though a reasonable man might have concluded, if he had thought about it, that a prisoner allowed to go home on Saturday might have gotten into a brawl in a saloon and shot a policeman. Whatever the theoretical basis for liability is called, the claimed cause of the injury (the release of Dick) did not sufficiently contribute to the injury to create liability in defendant.

The judgment of the Court of Appeal is reversed, and there is now judgment in favor of the defendant, rejecting the demands of the plaintiff, at plaintiff’s cost.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

SUMMERS, J., dissents for the reasons assigned.

TATE, J., assigns concurring reasons.

TATE, Justice,

concurring.

Assuming that the defendant sheriff violated some legal duty by affording the prisoner a weekend pass, this violation was not the proximate or “legal” cause of the plaintiff’s injuries. For a defendant’s violation of a duty to be a legal cause of an injury, his violation must not only be a cause in fact of (i. e., a substantial factor contributing to) the injury, but the duty violated must also have included within its purpose the prevention of the risk encountered by the plaintiff to his injury. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive-It-Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Robertson, Reason v. Rule in Louisiana Tort Law, 34 La.L.Rev. 1 (1973).

Here, as the majority correctly notes, the sheriff’s duty to confine the person held for bailable charges plainly did not include within its scope the protection of third persons from injury should the prisoner be released, with or without bail. I would prefer to rest our conclusions solely upon this analysis of proximate (“legal”) cause, rather than also upon the additional use of pre-Dixie principles enunciated by the majority.

SUMMERS, Justice

(dissenting).

Plaintiff Chester Frank instituted this suit in tort against Elin Pitre, Sheriff of Evangeline Parish. A cause of action is asserted based upon allegations of- injuries incurred by Frank when he was shot and seriously wounded by L. J. Dick shortly after midnight on September 12, 1971. At the time L. J. Dick was alleged to be on temporary leave from custody in the Evangeline Parish prison by virtue of the sheriff’s orders.

After a bench trial judgment was rendered in favor of the plaintiff Frank against the defendant Pitre for $41,004, with interest and costs. On appeal to the Third Circuit the judgment was affirmed. 341 So.2d 1376 (1977). Certiorari was granted on defendant’s application. 345 So.2d 53 (La.1977).

In important particulars the facts are disputed. In these instances the credibility of witnesses was at issue and the factual determinations were resolved in favor of plaintiff by the trial court and the Court of Appeal. A review of the record discloses evidence to support these determinations. Under these circumstances, finding no manifest error and being aware of the trial judge’s favored position where questions of credibility are involved, these conclusions are accepted.

On September 11, 1971 L. J. Dick was incarcerated in the Evangeline Parish jail situated in the Town of Ville Platte. He had been confined there when, about five weeks before, on August 5, 1971, he was arrested by the city police on charges of simple burglary and theft. At the time of his arrest he had just been released on parole from the State Penitentiary at Angola after serving twenty months of a five-year sentence for a conviction of burglary and forgery. He was then under supervised probation, and upon learning of his arrest and incarceration the probation officer assigned to his case filed a detainer with the sheriff on August 16.

During his incarceration in the parish jail it was the stated policy of the sheriff as custodian of the prisoners to grant passes to misdemeanants with the admonition to go home, remain there and not be seen or make trouble. Parole violators in custody under this policy were not supposed to leave jail without the permission of the probation officer. However, on some occasions even multiple offender felons were permitted to go out on passes, and, at least in this case, a parole violator was given the leave privilege contrary to the stated policy.

The policy was rather loosely administered. There were no formal written passes or log entries made of the prisoner’s departure or return; nor was the policy or practice reduced to writing in a set of orders or regulations. While acknowledging that there was no legal authority for the policy or practice, the chief deputy testified that “the sheriff has taken it upon himself to grant passes . . . .” It was not uncommon under these conditions for the city police to arrest and return prisoners who had breached the peace while at liberty on passes.

On September 11,1971 the parish jail was old and not well maintained. The locks were in such disrepair that chains and padlocks were used on some doors to provide a measure of security. Although it may have been feasible for the prisoner L. J. Dick to escape from confinement because of the jail’s condition and the lax security measures, as the sheriff contends, the trial judge found, and the Court of Appeal agreed, that Dick was allowed to go home for the weekend on this Saturday morning about 11:30. This finding is consistent with the failure of the sheriff’s office to send out an alarm or make any effort to find the prisoner and return him to custody after learning of his absence from the jail about one o’clock that afternoon. Significantly, the probation officer was not advised of Dick’s release from confinement.

When Dick left the jailhouse on September 11, 1971, he met another prisoner, Ray-field Jackson, on the streets of Ville Platte. Jackson too had been allowed to leave prison for the week-end. Together they obtained a ride part-way to Jackson’s house in a rural area. While there they ate, Jackson changed clothes, and they watched television until 4:30 that afternoon. A neighbor then gave them a ride back to Ville Platte. They arrived at “Will Jack”, a saloon, where they remained a short while until they decided to go to L. J. Dick’s mother’s house about three blocks away. There they again ate and watched television. About 7:30 that evening L. J. Dick changed clothes at his sister’s house nearby and they returned to the “Will Jack” saloon. Two cousins of L. J. Dick’s there gave them a ride to the “Wood”, a section of town where several saloons, lounges and dance halls were situated. After frequenting one or two of these establishments, they arrived at “Happy Landing”, a saloon and dance hall. Drinking continued there with girls and other friends.

In the course of the activity, Dick got into an argument with Sidney Gallow. A fight was about to take place when Chester Frank, the plaintiff, intervened. Frank was then on duty as a city policeman. In order to avoid a situation which would require arrest and incarceration of Dick and Gallow, Frank broke up the confrontation and led Gallow outside.

Dick returned to his companions of the evening. At that time Jessie Sims, the floor walker at the Happy Landing, who had assisted Frank in quieting the disturbance between Dick and Gallow, was in the process of quelling another threatened fight when, without provocation or warning, he was struck a vicious, stunning blow to the head by Dick. When he fell unconscious to the floor, Dick grabbed the handgun from his holster and bounded toward the door of the hall as the onlookers scattered.

Dick arrived at the door just as Frank, who had been talking to Gallow across the street, was walking back to the hall. As Frank approached the door Dick shot him three times. Another officer nearby then shot and killed Dick; Frank was seriously injured and permanently disabled as a result of the three gunshot wounds. This suit followed.

Courts of this State have recognized that the operation of a prison in such a manner that it creates a risk, danger, nuisance or cause of harm to another constitutes actionable negligence. It is said in these cases that recovery may be permitted based upon a finding that the sheriff or other custodian of prisoners is negligent in permitting a prisoner to escape or allowing him to leave custody without proper lawful authorization, where the act of the prisoner is a foreseeable consequence of permitting him to escape, and where such negligence is the proximate cause of injuries which result to others. Geiger v. State, 242 So.2d 606 (La.App.1970); Webb v. State, 91 So.2d 156 (La.App.1956); Green v. State, 91 So.2d 153 (La.App.1956). The same is true of other jurisdictions. See State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970); Moss v. Bowers, 216 N.C. 546, 5 S.E.2d 826 (1939); West Virginia v. Fidelity & Casualty Co., 263 F.Supp. 88 (D.C.W.Va.1967); 44 A.L.R.3d 899. The principle has been recognized since 1897. See Henderson v. Dade Coal Co., 100 Ga. 568, 28 S.E. 251. Some jurisdictions have recognized that officers who are at fault are criminally responsible for escapes by those entrusted to their custody. Barthelow v. State, 26 Tex. 175 (1862). Such a result appears to be based upon the principle that allowing the departure of a prisoner voluntarily or negligently is an offense against public justice and authority. 30A C.J.S. Escape.

In the instant case the trial judge and Court of Appeal based recovery upon a finding that L. J. Dick was, “without question”, a man of violent propensities. Although most witnesses agreed that Dick seldom made use of weapons, it was generally recognized by those who knew him that Dick was a “fighter” who had been cited for breach of the peace on numerous occasions. The sheriff and his deputies had knowledge of Dick’s propensities as a fighter. As already pointed out, Dick had recently returned from serving a sentence at the state penitentiary on a simple burglary and forgery conviction when he was again apprehended on charges of simple burglary and theft. The sheriff knew that he was awaiting trial on the latter charges and that a detainer had been issued charging him as a parole violator. In addition, the officials in charge of the jail knew that Dick had been arrested on a number of occasions in the past for disturbing the peace and fighting.

On the basis of these findings I agree that it was negligence on the part of the sheriff to adhere to a practice which allowed prisoners with violent propensities and with records of former convictions to leave the jail for the week-end. Especially it was negligence when, as here, no supervision or restriction on the prisoner’s activities while on leave was enforced or insisted upon. Such negligence was therefore a breach of the sheriff’s duty to maintain a proper restraint upon prisoners lawfully confined and entrusted to his custody, for he is charged by law as the keeper of the public jails of his parish, La.Rev.Stat. 33:1435, 15:704, and as such he is responsible for the safe custody of inmates in the parish jail.

I am, moreover, of the opinion that a duty is owed by the sheriff as keeper of the jail to those who may suffer harm as a result of negligently allowing a prisoner of violent propensities to leave confinement without adequate supervision or restraint.

Considering a person with L. J. Dick’s record and reputation the sheriff could reasonably anticipate that he would frequent the saloons and dance halls of the town, as he had before, and become involved in the disputations and violent encounters which had characterized his past activity. Dick had been in fights in this neighborhood on prior occasions, and his brother had been killed in the Rainbow Inn, an establishment near the Happy Landing dance hall and saloon. Dick had used a weapon on at least one previous occasion, when, two years previously, he threatened Officer Frank with a knife as Frank attempted to intercede in a fight in which Dick was involved. As a result, Dick was charged with disturbing the peace. Dick was six feet tall and weighed 200 pounds, and his reputation as a fighter in public places should have alerted any reasonably cautious officer to the probability that weapons would eventually play a part in these offenses against the law. Consequently, harm to others was reasonably foreseeable.

It is pertinent to note also that the harm which befell Officer Frank was not the result of negligence or passive action on the part of Dick, a circumstance which may have relieved the Sheriff of responsibility where the negligence was unrelated to the risk involved in the prisoner’s release. Cf. Green v. State, 91 So.2d 153 (La.App.1956). Instead Officer Frank’s injuries were a natural, probable and foreseeable consequence of Dick’s release from prison followed by his intentional, violent and unprovoked conduct. The injuries which resulted to Frank following Dick’s release from custody fell within the scope of the protection owed by the sheriff under the facts and circumstances of this case. These injuries were also the natural, probable and proximate consequence of the sheriff’s breach of his duty to maintain custody of L. J. Dick, consequences which should have and could have been anticipated and foreseen. Hill v. Lundin, 260 La. 542, 256 So.2d 620 (1972).

I respectfully dissent.


source: Caselaw Access Project

author: SUMMERS, Justice. TATE, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Frank WILLIAMS.
    No. 59813.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.

      Eugene P. Cicardo, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Charles J. Yeager, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant, Frank Williams, was indicted by the Rapides Parish Grand Jury on October 6,1976 for the offense of second degree murder. In a trial by jury he was found guilty as charged and sentenced to imprisonment at hard labor for life without benefit of probation, parole or suspension of sentence for a period of forty years.

At approximately 6:50 a. m. on August 21, 1976, a body was discovered on Brin-ghurst Street in Alexandria. The police were called, and upon arrival at the scene they found the bloody, battered body, nude from the waist up, lying on the side of the street in high grass. A crowd of neighbors had gathered, and one woman identified the body as “Sheri Williams”, whom she had seen the previous night with Mary Louise Chew.

Acting upon this information, Sergeant Darren Coutee of the Alexandria Police Department proceeded to the residence of Mary Louise Chew who was known to him. Mary Louise Chew related to the officer that the victim’s name was Shirley LaFon-tain and that she had been living with defendant Frank Williams, whose nickname was “Beaver”, from whom she had separated several weeks previously. Williams, she said, lived in the Oil Mill Quarters.

Mary Louise Chew then related that while she was with LaFontain the night before at the Big Wheel Lounge defendant Williams arrived. During a conversation which followed with LaFontain Williams struck her with his fists, pulled a knife on her, banged her head against the wall and knocked her to the floor. He then picked her up and shoved her out of the place and into his car, a white automobile Chew believed to be a Chevrolet. This information brought to Officer Coutee’s mind the fact that he had had contact with Williams before in the Lee Street area where he was formerly assigned as a foot patrolman.

Following this interview with Chew Officer Coutee returned to police headquarters where it was decided that he should contact the owner of the Big Wheel Lounge. At the lounge the owner, Milton Payne, Jr., verified the fact that Williams came into the lounge on August 20 and had an argument with LaFontain. A disturbance followed in which Williams slapped LaFoun-tain several times and she fell to the floor. He saw Williams pick her up and they left the place together.

In the meantime the police had ordered an autopsy of the victim to determine the cause of death. After interrogating Payne, Coutee learned that the autopsy revealed that the victim died from a severe beating, blows to the head and brain hemorrhage. With this information and the statements of Chew and Payne, Officer Coutee proceeded to search for Williams. He began with a review of police records, where he found a reference to Frank Williams who lived at 431 North Seventeenth Street in Alexandria, an address in the Oil Mill Quarters referred to by Mary Louise Chew. According to the records, Williams had been arrested several times in the past, once involving a disturbance with Shirley La-Fountain. The arrest report gave his alias as “Beaver”.

Thus informed, and after conferring with the Assistant District Attorney, and having been advised by him that their information supported probable cause for an arrest, the police proceeded to 431 North Seventeenth Street to arrest Williams. Upon arrival at the North Seventeenth Street address the police knocked at the front door. Finding that door padlocked, they called out, “This is the Police. Is anybody home?” No one responded, so they went to the back door. Finding the back door slightly open and not locked, the police again knocked and announced their presence. When no one answered, they entered with drawn weapons in search of a person they considered to be a dangerous felon who had committed a homicide. At that time they were instructed by the police captain not to touch anything.

As they entered they saw bloody towels in a bathroom area, and a pair of socks on the floor near a bath tub. In the bedroom they observed what appeared to be blood on the door facing and spots of blood on the floor and on a small table. Coutee also recognized a photograph of Frank Williams on the small table. The photograph depicted Williams standing near a white Oldsmobile. An envelope and a knife were found on the same table. Officer Coutee opened and examined the contents of the envelope and found the automobile registration papers for a 1967 Oldsmobile belonging to Williams.

Finding no one in the house, the officers proceeded to headquarters to obtain a search warrant, leaving Officer Guillot outside to secure the premises. Officers Cou-tee and Mayeaux decided en route to pass through the Lee Street area hoping to locate the white Oldsmobile. In doing so they located the vehicle near the 1000 block of Lee Street.

An inspection disclosed the window on the front passenger side to be open, through which the officers saw a pair of men’s trousers and what appeared to be traces of blood which had been wiped off of the front and rear seats. The car was then towed to headquarters.

In the meantime Frank Williams had been located in the Lee Street area and arrested. He was booked at the city jail, advised of his rights and questioned. In the beginning of this interrogation Williams signed a consent to search the premises at 431 North Seventeenth Street and the 1967 Oldsmobile, authorizing the taking from the premises or vehicle any letters, papers, materials, or other property which the police should desire. As a result of the questioning which followed, and after Williams was again advised of his rights, a lengthy statement was reduced to writing by Sergeant Coutee and signed by Williams at 1:00 p. m. Therein Williams admitted virtually all of the facts recited above, except that he denied killing LaFontain, saying she left his house the night before at ten o’clock.

Relying on the written consent to search signed by Williams, Detectives Christie and Hay proceeded to 431 North Seventeenth Street. Upon arrival they entered the house through the unlocked back door. Detective Christie photographed each room and particular places or things pertinent to the investigation. They also collected objects as evidence, such as a man’s bloodstained shirt, a bloodstained photograph depicting Williams standing next to his white Oldsmobile, a knife, a bloodstained iron bar, two towels from the bath tub and samples of blood droplets from the front porch floor and from several areas of the living room. They then returned to headquarters where the evidence obtained was tagged and placed in the evidence locker.

Detective Christie was then directed to search the white Oldsmobile. He found the back seat to be saturated with coagulated blood, blood on the front seat and Williams’ bloody trousers. After a thorough search, the items having evidentiary value were taken to police headquarters and placed in the evidence locker. All items were delivered to the State Crime Laboratory the next day.

On February 7, 1977, prior to trial, a motion to suppress was filed on behalf of defendant. The motion alleged that certain photographs and physical evidence in the possession of the State Crime Laboratory should be suppressed as evidence because they were obtained by an unconstitutional search and seizure without a search warrant at the residence of the defendant and his 1967 white Oldsmobile.

At the same time a separate motion was filed to suppress all written statements, confessions or other written inculpatory statements obtained by law enforcement, officers from the defendant Williams. The ground alleged for the suppression was that the statements were not free and voluntary and defendant did not knowingly or intelligently waive his right to remain silent, his right to counsel or his right against self-incrimination.

The hearing on those motions to suppress established the facts narrated above. On the basis of this evidence the trial judge found that the original entry into defendant’s home was proper, because the officers had probable cause to arrest defendant and no warrant was necessary in an effort to carry out an arrest. He further held that the evidence was overwhelming that the consent to search was providently given after full rights were explained to defendant and he voluntarily consented to the search of his house and ear. Both motions to suppress were denied.

Concisely stated, defendant’s position at the trial was that on August 20, 1976, the day of the alleged altercation at the Big Wheel Lounge, LaFontain had been at his house. She was suffering a nose bleed at the time and took a bath to wash away the blood. However, after she visited there during the early evening, she left and he did not see her again. He denied that he killed her.

I.

The motion to suppress should have been granted, the defense contends, because entry into a man’s house without a warrant in order to arrest him on probable cause is per se constitutionally unreasonable in the absence of one of a number of well-defined exceptions to the warrant requirement. In this instance, it is argued, there were no exigent circumstances to satisfy the probable cause exception to the warrant requirement. While this proposition may be supported by court decisions, the circumstances of this case present another problem. For the purpose of this discussion it is assumed that the officers had probable cause to arrest Williams when they arrived at his house, and that there was no showing that exigent circumstances existed supporting any entry into his house without a warrant. Nevertheless, the written consent to search and seize objects and information from defendant’s house and automobile, which was later signed by him, in this Court’s view, rendered the previous entry lawful and reasonable under the consent or waiver exception to the warrant requirement.

At the outset it is noted that the trial judge found the evidence was overwhelming that the consent to search was providently given after full rights were explained to defendant and he voluntarily consented to the search of his house and car. The record amply supports this factual finding. There is, in fact, no defense evidence to the contrary. At the trial defendant took the stand in his own behalf and readily admitted signing the consent to search, declaring he “had nothing to hide.”

It is noted, also, ■ that at the time of signing the written consent Williams was aware of the fact that the police had previously entered his house to arrest him, and the written statement signed by him conceded that he lost his temper at the Big Wheel Lounge, “hit her a coupla times”, and “pulled . . . [his] pocket knife on her and scratched her in the chest with the knife.” He admitted pulling her out from the table and that she fell to the floor and her head was bleeding. When they entered his car she rode both in the back seat for a time, and in the front seat; blood from her head was on the front and back seat. At his house, he said, he slapped her again. At that time her nose started bleeding and blood was on the floor, on her clothes and in the bathroom. Williams claimed that the victim bathed and left, and that he did not kill her.

These admissions and concessions demonstrate that defendant harbored no reasonable expectation of privacy relative to these facts which were also revealed to the officers conducting the initial search.

The consent given under these conditions is not only a consent to future searches and seizures, but it amounts to a waiver of the warrant requirement with respect to the search previously conducted. Essentially all facts uncovered by the initial search, except the actual killing had been admitted.

The Fourth Amendmént to the United States Constitution and Section 5 of Article I of the Louisiana Constitution guarantee that people shall be secure in their houses and effects against unreasonable searches and seizures, and that no warrant shall issue without probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

Evidence obtained by a search and seizure in violation of the Fourth Amendment is now inadmissible in state as well as federal courts by virtue of the principles announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Mapp held that the Fourth Amendment to the United States Constitution is applicable to the states through the due process clause of the Fourteenth Amendment. The decision declared further that, as a matter of federal due process, evidence obtained as a result of an invalid search or seizure is inadmissible. This decision interpreting the United States Constitution requires all states to follow the exclusionary rule. James v. Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965).

One may waive any constitutional right or privilege, provided it inheres in the individual and is intended for his benefit, and provided further the waiver is voluntary. More specifically the constitutional right to be secure against unreasonable searches and seizures may be waived, Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946); thus, a search to which an individual consents meets Fourth Amendment requirements, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and is another in “these carefully defined classes of cases” which constitute an exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Anthony, 347 So.2d 483 (La.1977); 345 So.2d 452 (La.1977); State v. Cook, 345 So.2d 29 (La.1977); State v. Temple, 343 So.2d 1024 (La.1977); State v. Johnson, 343 So.2d 155 (La.1977).

In resolving the issue of voluntariness of consent to search and seizure, the circumstances of each case are to be considered. Custody is only one factor and does not of itself render the consent involuntary. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Nor is a voluntary consent to a search rendered invalid solely on the basis that a suspect has not been given the Miranda warnings, United States v. Kunkel, 417 F.2d 299 (9th Cir. 1969), or warnings as to his Fourth Amendment rights. Govt. of Virgin Islands v. Berne, 412 F.2d 1055 (3d Cir. 1969), cert. denied, 396 U.S. 837, 90 S.Ct. 96, 24 L.Ed.2d 87, reh. denied, 396 U.S. 937, 90 S.Ct. 261, 24 L.Ed.2d 239. Notwithstanding that Miranda warnings were not required, this record reflects that Williams was given those warnings prior to signing the consent to search.

On several occasions recently, this Court has upheld consent searches where the suspect granting the consent was in custody and the consent was to search a vehicle which had already been impounded by law enforcement officers. State v. Linkletter, 345 So.2d 452 (La.1977); State v. Rogers, 324 So.2d 403 (La.1975); State v. McMellon, 295 So.2d 782 (La.1974). There was, in those cases, no exploitation of the challenged impoundment, but the searches and seizures were made as a result of subsequent valid consents, a basis sufficiently distinguishable to be purged of the primary taint. The situation is the same here. The first search was not unreasonable, oppressive or such as would shock the conscience of justice, nor was it contrary to one’s sense of fair play. The searching officers did not offend defendant’s dignity. Any taint resulting from the initial intrusion is sufficiently purged by the subsequent consent.

Therefore, even if the initial entry into defendant’s house and impoundment of his automobile resulted in a warrantless search or seizure, the subsequent voluntary, written consent to search a second time amounted to a waiver of the warrant requirement rendering both the first and second search and seizures valid. Consequently,- the ruling of the trial judge denying the motion to suppress was correct.

II.

A contention is made on behalf of the defense that a number of photographs introduced in evidence were inflammatory and lacking in sufficient probative value to counterbalance their prejudicial effect upon the jury. Moreover, according to the defense, a number of these photographs were irrelevant and unrelated to the element of the crime the prosecution was required to prove.

Thirty photographic color slides were exhibited to the jury by projection onto a five-by-six-foot screen. They were taken by Officer Christie and depicted the body of the victim at the place where it was first discovered, the defendant’s car and its bloody condition, the interior and exterior of defendant’s house where the alleged homicide occurred, etc. In an abundance of caution the prosecution asked for an out-of-court session to have the trial judge view these pictures and rule upon their admissibility before they were presented to the jury. This was done, and the trial judge found the pictures admissible. The defense objected and assigned error.

The photographic slides were projected on the same sized screen used in the trial court in order that the Justices of this Court might view them under the same circumstances. The Court has concluded that the pictures as projected were not unduly inflammatory, gruesome or prejudicial. They were relevant and material to the issues before the jury, and the ruling of the trial judge was correct.

Nor does the fact that the defense stipulated to the death of the victim relieve the State of the burden of establishing the cause of death. In this case the body of the victim was shown by the photographs to have been subjected to multiple wounds and bruises. The State’s case was based upon the theory that defendant brutally battered the victim to death. The photographs were relevant to prove not only the death of the victim, but that she died as a result of a beating.

While the photographs were unpleasant they were not so gruesome as to overwhelm reason and cause a jury to lose sight of the need for the prosecutor to establish with sufficient independent evidence the guilt of the accused. State v. Smith, 327 So.2d 355 (La.1976).

III.

While the defense brief complains that the prospective juror Donna W. Edwards should have been challenged for cause, the record discloses that she was accepted by the defense. This assignment is without merit.

IV.

It was an objectionable inference without basis, the defense argues, for the police to testify that drag marks on the porch leading from the front door of defendant’s house to the edge of the porch appeared to be heel marks, as though someone had been dragged from the front door to the edge of the porch.

Reasonable inferences from facts may be drawn by witnesses sufficiently knowledgeable and experienced with the subject matter; permitting such an inference to be drawn will ordinarily fall within the sound discretion of the trial judge. The common sense inference drawn by this officer who had participated in this investigation was permissible.

V.

At the trial defense counsel requested permission to read to the jury from a copy of defendant’s statement which had been reduced to writing by Officer Coutee. This was objected to by the prosecutor on the ground that the original of the statement was in evidence and available to defense counsel and it should be used instead of the copy. The original was, moreover, according to the prosecutor, the best evidence of Williams’ statement, and, furthermore, Williams was able to testify to what he said at the time the statement was reduced to writing. The objection was sustained on the last ground. Defense counsel was not permitted to argue the objection.

A better ruling, in this Court’s view, would have been to permit defense counsel to read the original statement to the jury if a proper basis for doing so had been presented. However, no prejudicial effect is shown by the ruling. There is no validity to the defense argument that this illiterate defendant could not know and should not have been required to testify to facts contained in the statement without having it read to the jury. A copy of the statement was shown to be in possession of defense counsel. He could have fully informed the defendant of its content by reading it to him before he took the witness stand.

VI.

The prosecutor’s rebuttal in closing argument is claimed by the defense to be beyond the subject matter of the closing argument of defense counsel. As the defense argument is understood, the State should not have been permitted to reargue its entire case on rebuttal, and mention by the prosecutor on rebuttal that the victim had been beaten by defendant with his fists was improper. Beating of the victim by defendant with his fists had never been alluded to until it was mentioned by the prosecutor on rebuttal, the defense argues.

According to Article 774 of the Code of Criminal Procedure, argument of counsel must be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case, and the State’s rebuttal shall be confined to answering the argument of the defendant.

If the rebuttal goes beyond the scope of the defense argument, the only protection available to the defense is admonition by the court or contempt proceedings.

A review of this record indicates that defense counsel’s closing argument touched upon almost all aspects of the case. The State’s rebuttal, then, was entitled to similar scope. Reference to defendant beating the victim with fists was an acceptable conclusion to be drawn from the evidence.

There is no merit to this assignment.

VII.

After the jury returned a verdict of guilty, the defense moved for a new trial. Although the written motion has apparently not been made part of this appellate record, it is understood from the transcript of the hearing held on the motion that it is based upon an allegation that Officer Christie lied at the trial. In his rebuttal testimony at the trial Officer Christie testified that he observed many small BB-sized holes in the kitchen wall of defendant’s house. These holes, he said, were similar in size to certain holes in the victim’s arm. This was proper rebuttal since defendant had previously denied that the wall had any such holes.

The trial judge denied the motion and refused to go to the scene to inspect the wall which defendant said contained no such holes. In his per curiam the trial judge explained that Officer Christie’s testimony at the trial was to the effect that there were holes in the wall similar to those in the victim’s body. The trial judge laid considerable stress upon the fact that the defendant, who had testified in his own behalf, did not take the stand to rebut Officer Christie’s testimony. He was in a position to do so having lived there two years. The trial judge held, therefore, that the motion alleged no newly discovered evidence which could not have been discovered by the exercise of reasonable diligence by the defendant. He was of the opinion also that the evidence if presented at the trial would not have changed the guilty verdict. There was no error in this ruling. La.Code Crim.Pro. art. 851.

For the reasons assigned the conviction and sentence are affirmed.

CALOGERO, J., concurs.

TATE, J., concurs and assigns reasons.

DENNIS, J., concurs for the reasons assigned by TATE, J.

TATE, Justice,

concurring.

The writer concurs in the affirmance. However, he differs with the majority’s rationale in denying the motion to suppress evidence as unconstitutionally seized.

The warrantless entry and search of the accused’s home was an unconstitutional entry and search. State v. Ranker, 343 So.2d 189 (La.1977). If items introduced in evidence had then been seized, the motion to suppress them should have been sustained.

The initial entry through a partially opened door, when the police had probable cause to arrest a person for a homicide of a few hours earlier, may have been justified, at least for purposes of ascertaining if the killer were present. Even so, their full search of the premises without a warrant is not shown to be justified by any exigent circumstances.

Nevertheless, in view of the information received from other informants and from the accused himself, there was probable cause for the later search of the premises, at which the evidence sought to be suppressed was actually seized. The accused’s consent to this search made constitutionally valid both it and the subsequent seizure of the evidence now objected to; just as if a search warrant had been secured upon a probable-cause affidavit setting forth the facts relied upon.

I would not agree that a subsequent consent necessarily validates a prior un constitutional search and seizure. While no abuse is here shown, the deterrent purposes of the exclusionary rule could be undermined, if lawless searches and seizures were used to justify arrests and interrogation, which in turn produced a post-dated consent to a previous search, a consent obtained from an accused only after he is in police custody.

In conclusion, however, even conceding the unconstitutional entry and search in this case, the evidence was seized as a result of a subsequent lawful search. It was thus admitted into evidence on a basis independent of the initial unconstitutional search.

For approximately the same reasons, I would also not hold to be constitutionally deficient the post-consent search of the automobile, which resulted in the only seizure of its contents (till then only glimpsed in plain view through the windows).

Accordingly, I concur in the majority’s affirmance of the district court ruling denying the motion to suppress, and in its af-firmance of the conviction.


author: TATE, Justice. PER CURIAM.

text:
    George M. PAULAT, Plaintiff-Appellee-Respondent, v. Jasper PIRELLO, Defendant-Appellant-Applicant.
    No. 60003.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearings Denied Jan. 27, 1978.

      Leon Gary, Jr., Gary & Field, Baton Rouge, for defendant-applicant.
    Clifton O. Bingham, Jr., Jimmie R. Major, Baton Rouge, for plaintiff-respondent.
   TATE, Justice.

La.R.S. 9:3501 provides for forfeiture “of interest in excess of that authorized by law” collected by virtue of a contract so providing. The issue before us is whether a lender may avoid forfeiture of payments made and received as usurious interest, by re-characterizing them as payments on principal, after the borrower disputes their usurious character.

We hold that the lender may not avoid forfeiture of usurious interest under such circumstances. Accordingly, we reverse the intermediate and trial courts’ decisions to the contrary. 345 So.2d 527 (La.App. 1st Cir. 1977), certiorari granted 347 So.2d 257 (La.1977).

(1)

The facts are set forth in full in the cited court of appeal opinion. They essentially show:

From 1964 to 1968, the lender Paulat and the borrower Pirello had transacted several loans on the following basis: In borrowing $10,000, the borrower executed a note payable in six months for the sum of $10,900 (thus capitalizing interest at the rate of 18% per annum), bearing interest at the maximum conventional rate of 8% from maturity. When these notes became due, the borrower paid $900 (i. e., the capitalized interest) and then executed a new note for $10,-900 (i. e., thus capitalizing interest for an additional six months).

For present purposes, it is sufficient to say that the notes and interest so collected did not violate the maximum conventional 8% rate of annual interest allowed by Civil Code Article 2924. The provisions of this article have been interpreted to except from a usurious nature those capitalized sums to be paid for the use of the money which are included within the face amount of the note, providing that the note does not bear interest after maturity for more than the maximum interest allowable. General Securities Co., Inc. v. Jumonville, 216 La. 681, 44 So.2d 702 (1950).

(2)

The present two notes sued upon were apparently initially intended to bear 18% capitalized interest and to be paid and renewed in the same manner. On May 15, 1969, the borrower renewed a $10,000 loan by executing a new note for $10,900, due in six months, and bearing interest at 8% from maturity until paid. On July 28, 1969, the borrower executed a similar note of $10,900, due in six months, in return for a loan of $10,000.

However, unlike prior lending agreements between the parties, thereafter until 1972 the borrower simply paid $900 on each note every six months, without executing a new note. These payments were denoted as for interest on the face of the checks by which the borrower paid them, and the lender received them and entered them into his books as interest.

Succinctly, by so doing, the borrower paid and the lender accepted interest at the usurious rate of 18% annually on each of the notes, even though the notes were stated to bear interest only at the allowable rate of 8% annually from maturity.

These payments were apparently made and received without the benefit of advice from a lawyer. The issue of their usuriousness arose in 1973, when the borrower retained counsel in connection with the lender’s demand that he re-execute notes on these two loans in order to secure extensions of them. These notes were to include capitalized interest at the rate of 18% for post-1972 periods during which the borrower was delinquent in his (18%) interest payments.

Upon the borrower’s refusal to execute these new notes, the lender brought suit on the two 1969 notes. However, in his suit the lender credited each $900 payment partly to interest at the maximum 8% conventional rate allowable, and the remainder to principal. By this (re)calculation, only $6,683.51 (plus 8% interest from November 15, 1972, and attorney’s fees) was due on the May 15, 1969 note of $10,900; while only $7,291.84 (plus interest at 8% from July 28, 1972, and attorney’s fees) was due on the July 28, 1969 note of $10,900.

The previous courts essentially allowed judgment as prayed for.

(3)

The legal principles applicable are clear:

“Any contract for the payment of interest in excess of that authorized by law shail result in the forfeiture of the entire interest so contracted,” La.R.S. 9:3501 (1950) (Italics supplied). All sums collected as interest (however denoted) after maturity in excess of the maximum 8% per annum allowed by Civil Code Article 2924 are usurious and are forfeited to the borrower. Karmgard v. Southland Mtg. & Title Co., 341 So.2d 1109 (La.1977); Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973). “ * * * [Wjhere usury is a defense to a suit on a promissory note or other contract of similar character, . . . it is permissible for the defendant to show usury whether same was given by way of discount or otherwise, by any competent evidence,” Civil Code Article 2924. Karmgard and Thrift Funds decisions, cited above.

Under these principles, the lender forfeited all interest during the period in which he collected usurious interest, while the borrower is entitled on his reconven-tional demand to receive credit against the principal for all such usurious payments, since by La.R.S. 9:3501 they were forfeited by the lender.

(4)

In arguing to the contrary, the lender essentially argues that the notes themselves (bearing 8% interest only from maturity) were not usurious on their face. Therefore, it is argued, any agreement subsequent to execution of the notes could not convert them into a usurious contract (it being further denied that there was any such agreement).

The lender relies heavily on Grunewald v. Bartholemew, 269 So.2d 274 (La.App. 4th Cir. 1974). There, interest due on a note, held to be usurious as written, was held to be forfeited by the lender, despite his attempt to avoid forfeiture by suing on the note in a manner so as to avoid collection of usurious interest. In holding the interest to be usurious (and thus forfeited), the court stated that “usury is determinable from the face of the instrument.” 269 So.2d 277.

Grünewald under its facts is a correct statement of principle. It does not, however, purport to legitimize, as non-usurious, payments exacted after execution of a note not usurious on its face, when such subsequent payments in fact and by agreement of the parties constitute usurious interest. And that is the issue before us in this litigation.

In the present case, following maturity of the two notes, the borrower made payments denoted as interest, and the lender accepted them as such, at the rate of $900 on each note every six months, being at the usurious rate of 18% per annum.

In denying that these payments were made pursuant to a “contract” so as to be forfeitable under La.R.S. 9:5801, the lender overlooks that “A contract is an agreement” between two parties, Article 1761. (Cf., Article 1762: “The contract must not be confounded with the instrument in writing by which it is witnessed.”) By mutual agreement of the two parties following maturity of the notes, payments of interest were made and received at the rate of 18% per annum. These payments were thus made and received by virtue of the contract or agreement, express or implied, entered into by the parties after maturity of the notes that interest would be paid in that manner and at that rate. Articles 1797 et seq.

Since the interest payments so made by virtue of the agreements) are usurious, the “entire interest so contracted” by the borrower is forfeited by the lender. La.R.S. 9:3501.

Conclusion

The following payments were made on the respective notes:

A. On May 15, 1969 note of $10,900: 7 payments of $900 each for interest through November 15, 1972, totaling $6,300 — since these payments are usurious and the defendant borrower is entitled to their return as credit against the principal, the balance of this note now due is $3,600. Further, all interest so collected is forfeited up through the payment of November 15, 1972, La.R.S. 9:3501; the lender is thus entitled to interest at 8% per annum only from November 15, 1972, until paid, as allowed by the trial court.

B. On July 28, 1969 note of $10,900: 6 payments of $900 each, plus $29 in payment of interest on interest (usuriously collected, see Article 1939 and Thrift Funds decision cited above), for interest through July 28, 1972, totaling $5,429 — for the same reasons as in A above, the borrower is liable for a remaining balance of principal on this note of $5,471, plus interest at the rate of 8% per annum from July 28, 1972, until paid.

Decree

For the reasons assigned, we amend the judgment of the district court so as to allow the defendant judgment on the May 15, 1969 note only in the principal amount of $3,600 and on the July 28,1969 note, only in the principal amount of $5,471, with both sums to bear interest and be assessed attorney’s fees on these amounts from the dates and at the rates set forth in the district court judgment. As thus amended, the judgment is affirmed.

The plaintiff-appellee is assessed the costs of the appeal and of supervisory review in this court; all other costs are assessed one-half against each party.

AMENDED AND AFFIRMED.

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal. 345 So.2d 527.

On Application for Rehearing

PER CURIAM.

Both parties have applied for rehearing.

The plaintiff Paulat calls to our attention a mathematical error of $1,000 in calculating the principal amount due on the note of May 15, 1969; accordingly, our original judgment is revised so as to show the net principal amount due to be $4,600. The other contentions raised by Paulat’s application have been found by our majority opinion to be without merit.

The defendant Pirello complains:

(a) That we allowed interest on the principal of the May 15, 1969, and July 28, 1969 notes at 8% per annum from November 15, 1972, and July 28, 1972. The defendant suggests that, where usurious interest is contracted, “the entire interest so contracted” is forfeited. La.R.S. 9:3501 (Italics supplied).

The agreement (contract) between the parties for the borrower to pay usurious interest on the respective notes was in effect up until the 1972 dates stated. In our opinion, we held forfeited all interest prior to these dates; accordingly, we treated the notes as entitled to immediate credit in the amount of the interest payments against the principal due. Since no usurious interest was contracted beyond the 1972 dates, we found no legal bar to the lender’s collection thereafter of the non-usurious rate agreed upon between the parties.

(b) That we failed to award the borrower legal interest on each of the usurious interest payments from the date it was paid by the borrower until the date the borrower collected it back. Karmgard v. Southland Mfg. & Title Co., 341 So.2d 1109, 1116 (La.1977). We did not allow such interest only because, on the record before us, allowing immediate credit for each usurious payment against the principal did not permit the usurious lender to avoid payment of legal interest due to the borrower for such usurious payments improperly exacted.

By application for rehearing, the defendant borrower notes that, when the lower court judgment against him became ex-ecutory, he paid the lender the full principal amount held due by the district court. (This amount, we held subsequently, was excessive, since it incorrectly did not reflect credit against the principal for usurious payments received by the lender from the borrower.) Accordingly, we reserve to the defendant Pirello, the borrower, the right to recover legal interest at 7 per cent per annum upon the excess of the amount paid by him after the district court judgment became executory, over the lesser amount to which our judgment held the lender to be entitled.

Both applications for rehearing are denied in all other respects.

As thus amended, our original opinion and decree is reinstated. We reserve to both parties the right to apply for further rehearing within the legal delays the further application to be limited to issues pertaining to these amendments of our original decision.

SUMMERS, J., is of the opinion a rehearing should be granted.

      . We are also cited to a quotation from 91 C.J.S. verbo Usury § 61, p. 642, which contains broad statements that a contract not tainted with usury at its inception will not be affected by subsequent usurious payments, “although such illegal payments . . . may well be usurious and void or unenforceable in themselves.” The quotation does not rely upon any Louisiana decisions and, without examination of other jurisdiction’s decisions cited, may well refer to those arising in jurisdictions which declare void and unenforceable the principal as well as the usurious interest exacted by the contract, cf. Section 56. The decisional authority allegedly summarized by the quotation is not shown to be relevant to the issues of Louisiana law with which we are now involved.

      . This was in accordance with the rate agreed upon in the confection of original notes. However, the initial $900 payments for the first six-months use of the money prior to maturity of the notes was capitalized in the principal of each note and are therefore, under Civil Code Article 2924, excepted from the usury regulations.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Phil LEMELLE.
    No. 60128.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.
    Leonard K. Knapp, Jr., Cox, Cox & Knapp, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was convicted after trial by jury of armed robbery and sentenced to forty years imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. On appeal he urges twelve arguments on assignments of error for a reversal of his conviction. Because we find merit in one of these assignments, defendant’s conviction must be reversed.

In Assignment of Error No. 5 defendant argues that his motion to recuse the trial judge, the Honorable L. E. Hawsey, Jr., was improperly denied. The defendant was originally charged on January 28, 1975 by a joint bill of information together with Larry Fowlkes and Sylvester Jackson. On January 29, 1975 L. E. Hawsey, Jr., then a practicing attorney, was appointed to represent Sylvester Jackson. Jackson éntered a plea of guilty on February 12, 1975 and was sentenced to serve ten years imprisonment. L. E. Hawsey, Jr. thereafter was elevated to the district bench, and, in February, 1977, presided over the trial of defendant Phil Lemelle. On the morning of the third day of trial, counsel for the defendant filed a motion to recuse Judge Hawsey, alleging grounds under C.Cr.P. 671(3). Judge Hawsey immediately recessed the trial and referred the motion-to Judge Cecil C. Cutrer. After hearing the testimony of Judge Hawsey and defendant counsel Knapp, Judge Cutrer denied the motion. The defendant’s trial thereafter resumed with Judge Hawsey continuing as the presiding judge.

Our task in properly resolving the issues presented by this assignment is three-fold: first, we must determine whether the motion to recuse was timely filed; second, if the motion was timely, we must decide whether its denial was error; and, finally, if the denial was error, it must be determined whether a reversal of the conviction is required.

C.Cr.P. 674 provides:
“A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recu-sation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.”

First, it must be noted that under the procedure employed by the Fourteenth Judicial District Court at the time of this trial, cases were not assigned to a specific judge until the day of trial. Thus no grounds for recusal would exist until the case.was assigned.

Testimony at the trial of the motion indicates that neither Judge Hawsey nor defense counsel Knapp had an independent recollection of Judge Hawsey’s appointment in the matter, that appointment having occurred nearly two years prior to trial. Knapp discovered the fact after the second day of trial when he came upon a notation made by his secretary in a case file containing the names of lawyers appointed to represent the individuals charged jointly with Lemelle. Knapp testified that he is not certain whether he ever had knowledge of the appointment, though it was possible that he had contacted Hawsey at that time. He testified that it was the practice of his office to have the secretary obtain the names of other counsel in the case and record it in the file. It is apparent that the motion to recuse was filed as soon as possible after the discovery of the facts constituting grounds for recusal, and therefore it was timely.

C.Cr.P. 671 provides:
“In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree;
(3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause ;
(4) Is a material witness in the cause;
(5) Has performed a judicial act in the case in another court; or
(6) Would be unable, for any other reason, to conduct a fair and impartial trial. In any cause in which the state, or a political subdivision thereof, or a religious body is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body is not of itself a ground for recusation.” (Emphasis added).

Judge Cutrer, in a per curiam to the assignment of error, stated essentially that because Judge Hawsey had no recollection of his appointment or of the case, no grounds for recusation were proved. The State argues that this reasoning is consonant with that expressed in State v. Mad-uell, 326 So.2d 820 (La.1976). In Maduell the defendant filed a motion to recuse the trial judge alleging bias, prejudice and interest because he had previously prosecuted the defendant on a different offense while serving as an assistant district attorney. This court held that the defendant had not demonstrated grounds under C.Cr.P. 671(1) sufficient to require the recusal of the trial judge. The present case is distinguishable in that recusation was sought under the provisions of C.Cr.P. 671(3). That section, when read with the mandatory “shall” used in the opening paragraph of article 671, requires recusal upon the mere showing of employment in the cause. There is no reference to whether that employment was of such consequence as to prejudice the judge, nor is there any requirement that the defendant show actual prejudice. The article simply and clearly states that the trial judge shall be recused when he has been employed as an attorney in the cause. The legislature, by providing for a mandatory recusal in this situation, has apparently concluded that the appearance of impartiality, as well as impartiality itself, outweighs the inconvenience caused by the recusal of the trial judge. Therefore, because of his prior representation of a defendant jointly charged with the same offense, Judge Haw-sey should have been recused upon the motion of the defendant.

C.Cr.P. 921 provides:

“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.” (Emphasis added).

The error in the present case may not be considered harmless, because the defendant was denied the statutory right provided by C.Cr.P. 671(3). When the error is a substantial violation of a constitutional or statutory right, there is no “harmless error” doctrine in Louisiana which might prevent a reversal. State v. Michelli, 301 So.2d 577 (La.1974); State v. Herman, 304 So.2d 322 (La.1975); State v. Murphy, 309 So.2d 134 (La.1975); State v. Green, 315 So.2d 763 (La.1975).

While we find reversible error in the assignment discussed above, another of defendant’s assignments bears comment. In Assignment of Error No. 1 defendant complains of the denial of a motion to quash the petit jury venire. The motion alleged the improper selection of the venire.

Judge Hawsey, the trial judge, described the method used for jury selection in his per curiam to the assignment of error:

“. . .on January 7, 1977, we issued a joint order summoning ninety (90) prospective petit jurors for service during the week commencing February 22, 1977. There was quite a number of cases fixed for trial on that date. Judge Yelverton and I decided that he would hear any excuses of prospective jurors commencing at 10:00 A. M. in one courtroom and then commence the first trial. While he was doing that, I held court in another courtroom, taking pleas and holding plea bargaining conferences. In the afternoon I was ready to commence a trial and twenty (20) names were drawn from the ve-nire box which was brought from Judge Yelverton’s courtroom. The twenty (20) names were placed in a separate box and the prospective jurors were drawn from this second box until it was exhausted. At that time, Judge Yelverton had completed the selection of his jury and I used the first box to complete the selection of the jury after having put into the box the names of anyone who had been challenged in Judge Yelverton’s court. As a result, some of the persons who served on the Lemelle jury had been challenged in Judge Yelverton’s court.”

While defense counsel’s arguments on the assignment do not reveal reversible error, he does correctly point out that Code of Criminal Procedure articles 783-785 apparently contemplate a separate venire for each section of criminal court. However, the procedure employed by the court is not unlike that provided in C.Cr.P. 785 for the replenishment of a depleted or nearly depleted venire. Because the accused has no right to a trial by a particular jury or juror, but only to a trial by a competent, impartial jury, no reversible error is shown. State v. Stephenson, 291 So.2d 767 (La.1974); State v. Preece, 270 So.2d 850 (La.1973). Nevertheless, drawing a separate venire for each section would obviate a repetition of objections here raised.

For the reasons assigned in the discussion of Assignment No. 5, defendant’s conviction is reversed and the case is remanded for new trial.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Frederick FRANKLIN, Jr.
    No. 60182.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.

      Robert Glass, Martzell & Montero, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Frederick Franklin, Jr., was convicted by a jury of possession of heroin with intent to distribute, a violation of La. R.S. 40:966A(1). He was sentenced to life imprisonment at hard labor. La.R.S. 40:966B(1). On appeal, he relies upon two assignments of error.

ASSIGNMENT OF ERROR NO. 1

In July and August of 1976 two New Orleans police officers received information from a reliable confidential informant, whose information in the past led to arrests and convictions, that defendant was engaged in the wholesale distribution of heroin from several addresses, one of which was the Lawrence Creek Apartments, Court 6, Apartment 112. The informant said that defendant drove a ’73 or ’74 black Thunderbird. From July 1976 through September 9, 1976, the officers conducted periodic surveillance of Franklin with negative results except they observed defendant driving a 1972 black Thunderbird.

On September 10, 1976, at 3:30 p. m., the officers received information from a second informant, whose information in the past had led to arrests and convictions, that the defendant was presently in possession of a large quantity of heroin and was distributing it in large form. According to the second informant, Franklin sold one bundle of heroin for $175.00 to a third person when the informant was present.

The officers proceeded to Apartment 112 and began surveillance of the apartment and the 1972 black Thunderbird. At 7:15 p. m., defendant left the apartment in his automobile and the officers, assisted by other police personnel, followed and watched the defendant. At one point when defendant stopped for a traffic light, a male pedestrian stepped up to the vehicle from the neutral ground, and Franklin handed him a brown paper bag. At another site within the city, the defendant got out of his vehicle and handed a brown paper bag to another man while entering a business establishment. The officers followed Franklin back to Apartment 112, arriving at approximately 8:30 p. m., and continued surveillance of the apartment and the Thunderbird automobile. At 9:35 p. m. a man and a woman arrived in separate automobiles and entered Apartment 112. About five minutes later defendant left the apartment, walked to his Thunderbird, and opened the passenger side door. After bending down briefly in the glove compartment area, he stood up and started to close the door. According to the officers nearest the Thunderbird, one of whom was observing defendant with field glasses, Franklin looked in their direction, a shocked expression came over his face, and he slammed the car door as he turned and ran. At this time he was carrying an unidentified object in his hand. Other officers who were stationed near the front of the apartment identified themselves as police and advised Franklin to stop and that he was under arrest. He did not stop, and the officers gave chase. By the time the first policeman reached the apartment door, it had been closed, but the officer used force to gain entry. At this moment the officer saw Franklin coming out of a closet in the living room area with his hand in the pocket of a jacket. Upon seizure of the defendant and search of the pocket, the police found a plastic bag containing heroin and a large sum of money. Other officers proceeded to search the rest of the townhouse apartment, including a kitchenette fifteen to twenty feet from the closet, where they found cut-up tinfoil, a blender and materials commonly used for the dilution of heroin.

Defendant moved to suppress all of the evidence resulting from the arrest, search and seizures. The trial judge denied the motion to suppress and filed a per curiam stating that the defendant failed to meet his burden of proving grounds for suppression by a preponderance of the evidence.

Defense counsel astutely points out that the trial judge applied an incorrect standard in allocating the burden of proof in this case involving a warrantless search. Paragraph C of La.Code of Criminal Procedure article 703 provides:

“On the trial of a motion to suppress filed under the provisions of this article the burden of proof is on the defendant to prove the grounds of his motion, except that the state shall have the burden of proving that a purported written confession or written inculpatory statement was made freely and voluntarily and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

The Official Revision Comments to article 703 explain that “Paragraph C states the general rule as to burden of proof, and continues the specific exception of R.S. 15:451.” That statute provides that before a confession can be introduced into evidence, the State must affirmatively show that it was made free and voluntary. The comment to article 703 then provides, “No attempt has been made to deal with other possible exceptions to the general rule of burden of proof(emphasis added).

Defense counsel did not point out nor were we able to find any Louisiana cases in which the issue of who bears the burden of proof at a motion to suppress hearing involving a warrantless search was squarely presented before this Court. In State v. Welch, 256 La. 1, 235 So.2d 72 (1970), for example, this Court stated that the State had carried its burden of showing that consent to search was given freely and voluntarily. Again, in State v. Dupuy, 319 So.2d 299 (La.1975), we stated that “the State bore its burden of proving by clear and convincing evidence” that consent to a war-rantless search was freely given. However, in State v. Wood, 262 La. 259, 263 So.2d 28 (1972) and State v. O’Conner, 320 So.2d 188 (La.1975), cases also dealing with warrant-less searches, this Court indicated that the burden of proof upon the motion to suppress is on the defendant. Thus, while Welch and Dupuy, supra, implicitly recognized that in warrantless search cases the burden of proof shifts to the State to justify the search, the contrary pronouncements in Wood and O’Conner, supra, illustrate that the law in this area is unsettled and confused.

We are of the opinion that article 703 must be construed in light of pronouncements by the United States Supreme Court that in the case of a warrantless search, the burden of proof rests on the State to show that an exception to the requirement of a search warrant is applicable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1945).

While the United States Supreme Court apparently has never been squarely confronted with the issue of which party has the burden of proof in suppression hearings, the lower federal courts take the position that once the defendant shows that the search was conducted without a warrant the burden then shifts to the government to prove that the search fits within an exception to the search warrant requirement. The Fifth Circuit in United States v. DeLa-Fuente, 548 F.2d 528 (C.A.5 1977), succinctly stated:

“(b) Burdens of proof in suppression hearings. — It is well established that the burdens of production and persuasion generally rest upon the movant in a suppression hearing. E. g., Rogers v. United States, 330 F.2d 535 (5 Cir. 1964); Addison v. United States, 317 F.2d 808 (5 Cir. 1963); Wilson v. United States, 218 F.2d 754 (10 Cir. 1955); White v. United States, 194 F.2d 215 (5 Cir. 1952); Jarabo v. United States, 158 F.2d 509 (1 Cir. 1946). Concededly, in some well-defined situations the ultimate burden of persuasion may shift to the government upon an initial showing of certain facts by the defendant. For example, if a defendant produces evidence that he was arrested or subjected to a search without a warrant, the burden shifts to the government to justify the warrantless arrest or search. E. g., Manuel v. United States, 355 F.2d 344 (5 Cir. 1966). * * * ”

See also, United States v. Lee, 541 F.2d 1145 (5th Cir. 1976); United States v. Moody, 311 F.Supp. 756 (S.Car.1970); United States v. Carignan, 286 F.Supp. 284 (Mass.1967); United States v. O’Brien, 265 F.Supp. 953 (Mass.1967).

In accordance with these views, we hold that once the defendant makes the initial showing at a motion to suppress hearing that a warrantless search occurred, the burden of proof shifts to the State to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. Cf. State v. Lain, 347 So.2d 167 (La.1977); State v. Manso, et al., 352 So.2d 1282 (La.1977), docket No. 61,136.

Police entry into a residence in “hot pursuit” is one of the exceptions to the warrant rule. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642,18 L.Ed.2d 782 (1967). However, in order for this exemption to apply, the officers must have had probable cause to arrest a culprit before pursuing him. Therefore, the initial inquiry is whether the officers had probable cause to arrest Franklin before entering Apartment 112.

In State v. Thomas, 349 So.2d 270, 272 (La.1977), we set forth the applicable principles:

“A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause, [citations omitted] Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense, [citations omitted] While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest, [citations omitted]
“LaFave, ‘Street Encounters’ and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40, 73-74 (1968) observes:
“ ‘As to the probability required for an arrest, it may generally be stated that it must be more probable than not that the person has committed an offense, although this is less certain as to the probability that a particular person is the offender than to the probability that a crime has been committed by someone. In the latter situation, which assumes central importance when there is no doubt who the offender is if a crime has been committed, courts ordinarily require that criminal conduct be more probable than non-criminal activity. This approach is reflected in those decisions which say that there must be “more evidence for [the existence of criminal conduct] than against” or that the suspect’s actions must be “inconsistent with any innocent pursuit,” and also in the many cases where grounds for arrest have been found lacking because the conduct of the suspect was equivocal, that is, where the possibility of criminal conduct was no greater than the possibility of innocent behavior.’ ” (Footnotes omitted.)

Applying these principles to the evidence in this case, we conclude that probable cause to arrest the defendant existed at the time he ran from his automobile with the object in his hand upon seeing the officers watching him with binoculars. The fact that a person runs or flees does not in and of itself establish probable cause. See, State v. Herbert, 351 So.2d 434 (La.1977), No. 58,726. Flight does not always indicate guilt; it may result from fear and possibly other causes. Even where flight does reasonably appear designed to avoid apprehension, reasonable cause will not arise unless the flight, combined with other information upon which the officers are entitled to rely, would indicate to a reasonable mind that the combination of circumstances is inconsistent with any innocent pursuit. In the instant case, when the officers arrived at Apartment 112 for their final stakeout, they were in possession of the following information: Two informants had reported that the defendant was engaged in wholesale heroin distribution within the city of New Orleans. One of the informants had seen the defendant sell a $175 bundle of heroin to a third person at an undisclosed location. The defendant left one of the apartments which an informant had said he was using in heroin trafficking and entered an automobile very similar to the one described by the informant’s information. Defendant then drove to two locations within the city, and at each one transferred a brown paper bag to another man in a manner consistent with heroin distribution, except that no money was seen to have changed hands. At the time defendant saw the officers observing him at his car parked near Apartment 112, they were seated 30 to 50 feet away, and one was watching with binoculars. The area was fairly well illuminated with street lamps and light from a laundry room. Under all of the circumstances, including but not limited to the defendant’s behavior upon his discovery of the police surveillance, criminal conduct was more probable than non-criminal activity

Thus, we find that the officers had probable cause to arrest the defendant and consequently were entitled to pursue him into the apartment to effect the arrest. Santana, supra; Warden, supra; State v. Roach, 338 So.2d 621 (La.1976); State v. Wyatt, 327 So.2d 401 (La.1976).

In arresting the defendant the police were entitled to search the arrestee’s person and the area within his immediate control to prevent the defendant from gaining possession of a weapon or destroying evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). When the police were making the arrest the defendant had his hand in the pocket of a coat in the closet. Thus, at that time, the plastic bag containing heroin and the large sum of money were within the immediate reach of the defendant. Under the narrow search allowed by Chimel, supra, these items were lawfully seized and properly admitted into evidence.

The defendant contends that some of the most damning evidence introduced at trial resulted from a search of the apartment’s kitchen which exceeded the constitutional limits imposed by Chimel, supra. The State does not contend that it was necessary to search the kitchen in order to secure weapons or criminal evidence possibly within the reach of the defendant or other suspects. The man and the woman who had entered the apartment shortly before the arrest were seated in the living room when the first officer entered and had peaceably submitted to physical custody before the extended search of the apartment began. The State contends, however, that the items which were seized from the kitchen were in “plain view” of the officers making the arrests. Therefore, it is argued, the seizure was constitutionally permissible. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1964), the Supreme Court set forth the criteria' necessary for the plain view doctrine to be operative.

“It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
“An example of the applicability of the ‘plain view’ doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character, [citations omitted] Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in ‘hot pursuit’ of a fleeing suspect, [citations omitted] And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant, [citations omitted] Finally, the ‘plain view’ doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object, [citations omitted]
“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last ' emerges.” [citations omitted] Id. at 465-66, 91 S.Ct. at 2037-38.

See also, State v. Fearn, 345 So.2d 468 (La.1977).

We cannot determine from the present record whether these criteria were met in the instant case. The evidence is clear that the officers did search the entire apartment so that it may not be contended by the State that they were content to a reasonable search incident to a lawful arrest as defined by Chimel, supra :

“There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less.” 395 U.S. at 763, 89 S.Ct. at 2040.

The evidence is conflicting and confusing as to whether the kitchen was, in fact, a separate room, or merely a kitchenette, divided from a combined dining and living room area by a breakfast bar, such as is located in a typical modern efficiency apartment. The fact that the kitchen was 15 to 20 feet away from the living room closet and the fact that the items seized in the kitchen were on the “counter” suggests the latter possibility. However, on the record before us we find it is also possible that the kitchen was a separate room into which the officers had no reason to extend their search and which was not in their plain view. If the evidence is in equipoise, since the burden of proof is on the State, then the motion to suppress should have been granted as to the items in the kitchen.

However, we hesitate to declare such a state of equilibrium. Because we did not see or hear the witnesses testify, we are not in a position to assign equal or unequal weight to their testimony. The trial judge was in a better position to assess the credibility and reliability of the testimony, but his ruling is flawed by his erroneous assumption that the burden of proof was upon the defendant. Instead, he should have required the State to affirmatively show that the search of the kitchen was within the bounds provided by Chimel and Coolidge in order to justify the seizure the blender and other items located therein. If he had applied this standard of proof to his assessment of the witnesses’ testimony it is possible that he would have found that the seizure of the articles in the kitchen resulted from an unlawful search. We find, therefore, that this assignment may have merit.

ASSIGNMENT OF ERROR NO. 2

Trial counsel stipulated that one of the State’s police officer witnesses “is an expert in the field of narcotics trafficking and can give his expert opinion thereof.” However, an objection to the relevancy of the evidence sought was interposed when the State’s attorney asked the witness to “tell the court and jury about heroin coming into the country.” The objection was overruled, and the prosecutor amended his question by asking the witness to “tell us how narcotic traffic operates.” In response, the officer testified:

“Heroin originates in one of three places in the world: one in Turkey where they have poppy fields where raw opium is made, the golden triangle, which is Thailand and the Burma poppy fields are there and Mexico, some of the raw poppy owned by golden triangle goes into Europe and from Turkey also, some of the raw opium from Mexico, they have poppy fields there, but there is a basic difference between heroin in Europe and Mexico, Europe refines to the fullest extent, its [sic] white in color. We find in Nexico [sic] in the last two stages it is deleted in a cleaning process and brownish in color, it is brought in the country in various ways, by boat or planes in sealed luggage, in Mexico in automobiles, hidden in engines or transmissions or the body and carried in. Once it is smuggled in the U.S. it goes to the highest eschelon of drug traffic normally at this point from Europe it goes to New York and from Mexico it goes to California and Los An-geles area, from there people from our cities go to California or New York, and purchase wholesale quantities of heroin, return it to New Orleans to be polished or cut and the uncut is diluted to a weaker form in order to be distributed out of the City of New Orleans.”

The officer proceeded to testify that the heroin obtained from New York and California, which ranges from 15% to 70% pure, is usually diluted to approximately 3% before being sold on the street. He described the dilution process as follows:

“It is brought to New Orleans and taken to a cutting pad where they cut it and the uncut heroin strength percentage is placed in a blender and diluted with dor-min, procaine, novacaine, something of this sort, or milk sugar is placed in the uncut heroin and brought to a lower percentage. The person cutting the heroin usually does not have a way of chemically analyzing the heroin so usually he has an addict with him who is known as a tester and he throughout the entire operation will test the heroin to see when it is the right strength, from there the heroin is taken from the blender and put in papers and at one time it was 100 mgs per paper. In the past six months it has gone down to Va of a mg, it is placed in tinfoil and is sold to the addict on the street for a price of $12.00 to the addict.”

Defendant acknowledges that it is relevant to a charge of possession with intent to distribute heroin to demonstrate that “the form and quantity of heroin usually associated with wholesale and street level distribution of that substance” was present in this case. State v. Marks, 337 So.2d 1177, 1183 (La.1976); see, State v. House, 325 So.2d 222 (La.1975). However, the defendant contends that the international and national distribution scheme — tied nowhere in the trial evidence to the appellant Franklin — was not only irrelevant to the charge but overwhelmingly prejudicial.

La.R.S. 15:435 provides that evidence must be relevant to a material issue. Relevant evidence is defined in La.R.S. 15:441 as follows:

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

Even though evidence may be deemed relevant because it has probative value, counterbalancing factors may exist which lead a court to exclude this otherwise relevant evidence if the probative value is outweighed. Among the factors to be considered are: the danger that the evidence may unduly arouse the jury’s emotions of prejudice, hostility or sympathy; the probability that the evidence may create a collateral issue which will unduly distract the jury from the main issue; delay in the trial; the danger of unfair surprise. McCormick on Evidence, § 185 at 435; Comment, Louisiana Evidence: Relevant and Material Aspects, 21 Loy.L.Rev. 476 (1975).

The defendant points out that in State v. Luneau, 323 So.2d 770 (La.1975), this Court dealt with a similar problem and found that a reference to the foreign source of marijuana was inadmissible evidence. However, the conviction in that case was upheld because the testimony was unresponsive and volunteered. Further, because the jury returned a verdict of simple possession, the error complained of did not result in sufficient prejudice to warrant reversal. In the present case, unlike in the Luneau case, it was necessary to refer to the foreign source of heroin to explain the relevant fact that the drug enters the country in a condensed form and must be diluted before it can be consumed safely by addicts. It was not necessary to refer to the ways in which heroin is illegally imported, and under different circumstances such testimony could have been so highly prejudicial as to require reversal of the conviction. In the instant case, however, a review of the entire record shows that the danger was slight that the jury could have drawn the prejudicial inference that Franklin himself had smuggled the heroin. This assignment is without merit.

Since we find no trial error except for the possible error on the motion to suppress, it is not necessary at this time to reverse the conviction and order a new trial, because the possibility of error might be eliminated upon another trial of the motion to suppress. State v. Simmons, 328 So.2d 149 (La.1976); see, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We reserve to the trial judge the power to grant a new trial should he determine that the articles seized from the kitchen are inadmissible. If, on the other hand, the trial judge determines, after a hearing on the motion to suppress, that the evidence is admissible, the right to appeal from such ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

The case is remanded to the district court for further proceedings in accordance with this opinion.

SUMMERS, J., dissents.

      . One of the officers, in answer to a complex question, indicated that the informant said that he, the informant, had purchased the heroin from defendant at Apartment 112. But the other officer testified that the informant had merely witnessed the transaction between defendant and a third person, and the second officer’s testimony did not specify whether the informant identified the site of the transaction. For purposes of our review we adopt the view more favorable to the defendant.

      . In Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), a case concerned with an involuntary confession, the Court stated that the prosecution “must prove at least by a preponderance of the evidence that the confession was voluntary.” Id. at 489, 92 S.Ct. at 627. In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), which did not deal squarely with the issue of burden of proof at a suppression hearing involving a war-rantless search, the Court did note “that the Government sustained its burden of proving by the preponderance of the evidence that Mrs. Graffs voluntary consent to search . . . Id. at 177, 94 S.Ct. at 996. See, LaFave, Search and Seizure: “The Course of True Law * * Has Not * * * Run Smooth,” 1966 U.Ill.L.F. 255, 347.