text:
    STATE of Louisiana v. Clifton ARDOIN.
    No. 58318.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Dwight D. Reed, Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.
   DIXON, Justice.

The defendant, Clifton Ardoin, was charged with a violation of R.S. 14:34 aggravated battery. A six man jury found the defendant guilty as charged and he was sentenced to serve five years and one day in the parish jail. The State produced evidence that, on the night of August 9, 1975, Leonard Alcide, Jr. and Clifton Ardoin were in the Tip Top Bar in Eunice, Louisiana. "Ardoin asked Alcide for a drink and Alcide refused. The two men had words and Ar-doin hit Alcide in the mouth with his fist. Then Ardoin stabbed him four times in his arm, side and back.

Defendant alleges four assignments of error for reversal of his conviction and sentence. However, Assignment of Error No. 3 was neither briefed nor argued and is thereby deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

Assignment of Error No. 1

At the opening of trial, the trial judge imposed a rule of sequestration on all of the witnesses pursuant to C.Cr.P. 764. After the State had begun putting on its case, defense counsel learned that the complaining victim, Leonard Alcide, had spoken to Willie Lewis, a State witness and bartender of the Tip Top Bar, in violation of the sequestration order. Alcide had already testified and Lewis was about to testify. Defendant first requested that the court exclude Lewis’ testimony and when the court refused this request, the defendant moved for a mistrial, which motion was also denied. Defendant assigns as error the refusal of the trial court to declare a mistrial.

The purpose of the statute providing for sequestration of witnesses is to prevent their being influenced by the testimony of prior witnesses and to strengthen the role of cross-examination. E. g., State v. Holmes, 305 So.2d 409 (La.1974); State v. Fallon, 290 So.2d 273 (La.1974). However, not every violation of a sequestration order must result in the exclusion of a witness’ testimony. That decision is within the sound discretion of the trial judge. State v. Batts, 324 So.2d 415 (La.1975); State v. McKinney, 302 So.2d 917 (La.1974); State v. Browning, 290 So.2d 322 (La.1974). On review, this court will look at the facts of each case to determine whether the violation resulted in prejudice to the accused. State v. Barnard, 287 So.2d 770 (La.1973).

In the case before us the record reveals that Alcide had talked to Lewis for only one minute. Lewis was examined by both the judge and defense counsel as to the conversation and Lewis testified that Alcide had not told him what he (Alcide) had testified to in court, nor any of the details of that testimony. In addition, there was no allegation or showing that the violation was brought about by any action or design of the State. State v. Jefferson, 305 So.2d 465 (La.1974). Under these circumstances, the defendant was not prejudiced by the violation of the sequestration order and there was no error by the trial judge in refusing to order a mistrial.

Assignment of Error No. 2

On direct examination Leonard Al-cide testified that after he refused the defendant a drink, the defendant hit him in the mouth and then stabbed him. Alcide then hit the defendant in the face with a pint of whiskey he had in his hand and grabbed a chair for protection. On cross-examination Alcide testified that after he was hit, he “went and bought the pint.” Therefore, there was a contradiction between his testimony on direct and cross-examination. Subsequently, two other witnesses testified that after Alcide had been stabbed he hit the defendant in the face with the pint of whiskey he had in his hand, thus corroborating Alcide’s testimony on direct examination.

After all of this testimony, the State recalled Mr. Alcide and the following question was put by the prosecutor:

“Q. Mr. Alcide, a while ago when you testified, you told the lawyer for the defendant that you had went and bought a pint of whiskey after Clifton had hit you. Was that correct?
“A. No.
“MR. REED: I’ll object, Your Honor. “THE COURT: State the legal basis for your objection, Mr. Reed.
“MR. REED: He’s trying to impeach his own witness’ testimony.
“THE COURT: I’m going to overrule the objection, Mr. Reed. Ask the question. “Q. Was that correct?
“A. No, I made a mistake. When he hit me, I already had the pint of whiskey. “Q. Before you get to that — Why did you testify that way?
“A. I just was nervous.”

Defendant bases his objection on R.S. 15:487, which provides:

“No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.”

The exchange quoted above was not an attempt by the State to impeach its own witness. This witness had testified on direct examination that he hit the defendant with the whiskey bottle after being stabbed. He made no mention of buying the whiskey after being hit. On cross-examination it appears obvious from the record that the witness became confused. In recalling Mr. Alcide the State was attempting to rehabilitate this witness. In discussing impeachment, McCormick on Evidence states:

“Impeachment is not a dispassionate study of the capacities and character of the witness, but is regarded in our tradition as an attack upon his credibility. . ” McCormick on Evidence (Cleary Ed. 1972), § 49 at 102.

There is clearly no attack upon the credibility of the witness here. In addition, the defendant nowhere indicates in what way he was prejudiced by this rehabilitation. The trial judge is vested with wide discretion to govern the examination of witnesses in court. State v. Calloway, 324 So.2d 801 (La.1976); State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972). There was no abuse of discretion in permitting this examination.

This assignment lacks merit.

Assignment of Error No. 4

After the defendant had been found guilty by a jury, he moved for a new trial alleging that the ends of justice would be served by granting a new trial “in that the court failed to give him the information required by article 780 of the Code of Criminal Procedure, as to his rights of waiver of a jury trial.” C.Cr.P. 780 provides:

“A defendant charged with any offense except a capital offense may knowingly and intelligently waive a trial by jury and elect to be tried by the court. At the time of arraignment, the defendant in such eases shall be informed by the court of his right of waiver and election.”

The minutes and record of the trial do not reflect that the trial judge informed the defendant of his right to waive a jury trial. The State stipulated that at no time up to or through the trial was the defendant notified of his right to waive trial by jury. In addition, defense counsel testified at the hearing on the motion for a new trial that he was not aware that C.Cr.P. 780 required the court to inform the defendant of his right to waive trial by jury. However, defense counsel testified that he was aware of the defendant’s right to waive trial by jury. The testimony of the defense counsel was as follows:

“BY THE COURT: Were you aware of this at that time, Mr. Reed? Were you aware of the provisions of 783? [sic] [780],
“MR. REED: I was not Your Honor. I was aware of his right to waive a Jury trial but I was not specifically aware of' the article requiring the Court to do that.”

Notwithstanding this testimony, the defendant now argues that this conviction must be reversed because there has been a substantial violation of a statutory right, i. e. the right to be informed by the judge of his rights of election and waiver. 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.”

The language of the statute is couched in the negative. “A judgment or ruling shall not be reversed . . . unless” one of the stipulated conditions is met. Not every violation of a statutory right therefore must result in reversal of a conviction. E. g., State v. Sharp, 338 So.2d 654 (La.1976) (failure to inform defendant of his right to waive jury trial — held defendant aware of right); State v. James, 305 So.2d 514 (La.1974) (technical errors in indictment form); State v. McKinney, supra (violation of sequestration rule); State v. Coates, 273 So.2d 282 (La.1973) (no notice to defendant of intent to use inculpatory statements). The particular circumstances of this case do not warrant reversal of the defendant’s conviction. Defense counsel admitted that he was aware of the right involved here (the defendant’s right to waive trial by jury). No prejudice to the defendant is alleged or demonstrated. In fact, in his brief, the defendant does not allege that he wanted to be tried by a judge alone. The defendant’s argument is merely that the requirements of the statute have not been complied with and therefore the conviction must be reversed. As this court said in State v. Sharp, supra:

“. . . We do not sanction and will not hold to a hard and fast rule to the effect that failure of the court to verbalize the option [to be tried by the judge] at arraignment of defendant necessarily constitutes reversible error. . .

Accordingly, the conviction and sentence of the defendant are affirmed.

      . In fact, a motion for a new trial is not the proper procedural vehicle by which to raise this alleged error. A motion in arrest of judgment, pursuant to C.Cr.P. 859 would have been proper. That article provides in pertinent part:
      “The court shall arrest the judgment only on one or more of the following grounds:
      “(4) The tribunal that tried the case did not conform with the requirements of Articles 779, 780 and 782 of this code.”

        State v. Sharp, 338 So.2d 654 (La.1976). However, we will consider the merits of this contention.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Robert D. HEARN and John H. Pruett.
    No. 58338.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Ronald L. Goranson, Frank Jackson, Dallas, Tex., Grant & Scott, Monroe, for John H. Pruett.
    Murphy Blackwell, Jr., Blackwell, Cham-bliss, Hobbs & Henry, West Monroe, for Hearn.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., O. L. Waltman, Jr., E. Joseph Bleich, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendants Robert D. Hearn and John H. Pruett were charged by information on January 21, 1976 with having knowingly and intentionally possessed marijuana with the intent to distribute in violation of R.S. 40:966(A). After trial on the merits on April 27,1976 defendants were found guilty as charged. On May 26, 1976 each defendant was sentenced to serve four years at hard labor with credit for time served and to pay a fine of $1000 plus costs. Defendants appeal their conviction relying upon two assignments of error.

Assignment of Error No. 1

In this assignment of error the defendants contend that evidence admitted over objection was unconstitutionally seized and that its admission into evidence constitutes reversible error. U.S.Const. Amend. IV, XIV; La.Const. Art. I, § 5. The basis for this objection is that on January 20, 1976 the defendants, driving a 1975 blue Dodge van from Dallas, Texas, were stopped in Lincoln Parish by the state police. The defendants were ordered out of the van but were not specifically placed under arrest at that time. The officers searched the van without a warrant; the search revealed a green garbage bag and a blue suitcase in a storage area under a plywood bed in the back of the van. The bag and suitcase were seized; they contained approximately fifty pounds of marijuana. The defendants were placed under arrest after the marijuana was discovered.

A warrantless search is per se unconstitutional subject only to a few well delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Thomas, 310 So.2d 517 (La.1975); State v. Tant, 287 So.2d 458 (La.1974). It is conceded that the only exception applicable to this case is that a moving vehicle may be stopped and searched where there exists probable cause to search the vehicle and where “exigent circumstances” make the securing of a search warrant impracticable. E. g. State v. Massey, 310 So.2d 557 (La.1975).

In this case the existence of probable cause to search is not seriously contested. At the hearing on the motion to suppress Officer Ellis of the Louisiana State Police testified that a few weeks before the search he received information from an informant shown by facts adduced at the hearing to be reliable. This information consisted of the fact that the informant had seen defendant Hearn in Lincoln Parish in the blue Dodge van with a large quantity of marijuana. In addition, the informant told Officer Ellis that he saw both defendants distributing marijuana in Bienville Parish (which adjoins Lincoln Parish). Trooper Payne of the Louisiana State Police testified that a different informant (also shown to be reliable) told him that the two defendants lived in Dallas, Texas, made frequent trips to the Lincoln Parish area to sell marijuana and that the defendants were known to deal from the same blue van which was searched in this case. The informer told Trooper Payne that he had bought marijuana from the two defendants in Lincoln Parish and had seen large quantities of marijuana in the latter part of 1975 in defendant Pruett’s residence in Dallas. Payne also testified that on January 19,1976 this informant told him that either on the night of January 20 or 21 the defendants would leave from Dallas and go to Lincoln Parish in the blue Dodge van carrying a large quantity of marijuana for the purpose of selling it.

Furnished with this information, Trooper Payne and another officer went to Dallas on January 20, 1976 in order to carry out a surveillance of the defendants. Defendant Pruett’s residence was observed from early morning until 5:20 p.m. on January 20, 1976. In the early part of the afternoon the officers observed a woman take the van to a gas station to fill it with gas. When she returned a man came out of the house and backed the van up to the front door of the residence. Some thirty or forty minutes later two white males got in the van, drove to Interstate 20 and headed east (the general direction toward Louisiana). The officers followed the van out of Dallas for eight or ten miles in a Texas police car and then returned to Dallas to get their own car. The officers eventually overtook the van approximately one hundred miles east of Dallas, passed the vehicle, left the Interstate to get gas and food and then proceeded toward Lincoln Parish. These officers did not see the vehicle again until Minden (Webster Parish).

Trooper Noel Reed followed the van from the Texas-Louisiana border until some point past Shreveport. Trooper Danny Warner first saw the vehicle in Bienville Parish, the parish just west of Lincoln, and after the van passed the last exit for that parish, radioed ahead to another officer this fact and told him to stop the van when it entered Lincoln Parish. Trooper Taylor stopped the vehicle a short time after the van entered Lincoln Parish at approximately 9:45 p.m.

This information, corroborated by observation, established probable cause to search the van. In fact, the appellants concede in brief that probable cause existed when the van left Dallas. The serious issue is whether there were exigent circumstances such that it was impracticable to secure a search warrant. The defendants argue that during the four hours it took to drive from Dallas to the point in Lincoln Parish where the van was searched the police could have secured a warrant. The appellants correctly point out that “exigent circumstances” do not exist solely because a moving vehicle is to be searched. “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564. The rationale of the automobile exception is that “the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting . . . ” Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419; State v. Massey, supra.

In this case, as the State argues, the van was traveling at night and due to the van’s construction the contraband could have easily been thrown out of the side door to the shoulder of the road if the defendants detected the surveillance. However, these circumstances, which existed for most of the trip from Dallas to Lincoln Parish, might not constitute “exigent circumstances” if it were practical to secure a warrant before the search. Although probable cause need not arise “coincidentally with the occurrence of the exigent or unforeseeable circumstance,” State v. Tant, 287 So.2d 458, 460, the facts which are alleged to constitute “exigent circumstances” should not be considered as such if they are of a continuing nature giving ample opportunity for the law enforcement personnel to seek a neutral magistrate’s judgment as to the existence of probable cause.

However, the facts adduced at the motion to suppress reveal that during the four hour interval between the van’s departure from Dallas until it was searched it was not practicable for the police officers to secure a warrant. There was evidence that the police reasonably thought probable cause might not have been established until the informant’s tip was confirmed by the vehicle’s entry into its reported destination, Lincoln Parish. Although a number of police officers were utilized to carry out the surveillance of the van from Dallas to Lincoln Parish, the surveillance was not shown to have been a well organized, supervised and synchronized operation, as some officers along the route only had a portion of the information about the case. Finally, Trooper Payne had the information which would have to be conveyed via an affidavit to a magistrate in order to get a search warrant. However, Trooper Payne was an integral part of the surveillance operation following the van from Dallas and he did not have adequate time during the short four hour delay to secure a warrant. Although the vehicles involved had radios they were not compatible, and communications were imperfect. Under these circumstances the police acted reasonably, and, at the time the vehicle was searched, there existed both probable cause to search and exigent circumstances making the securing of a search warrant impracticable.

This assignment lacks merit.

Assignment of Error No. 2

Defendants contend that a mistrial should have been granted when the following exchange occurred in the presence of the jury:

“Mr. Waltman (Assistant District Attorney): Do you all need Trooper Warner? The Court: Is there any reason for him not be excused?
Mr. Jackson: Your Honor, we don’t mind — I don’t mind excusing him if he’s available for us—
The Court: Will you be available in the event you are needed?
The Witness: Yes, sir, I have to fly to Tensas Parish on another drug deal there—
Mr. Jackson: Well, Your Honor, I’ll object to that. There’s no need for him to bring that—
The Court: He’ll be available. Disregard anything that he said.
Mr. Jackson: Your Honor, I’m afraid that that might be so prejudicial, inflammatory, that we’d move for a mistrial at this point.”

The defendants apparently argue that this comment in some manner inferred that the defendants in this case had other criminal charges pending against them. Such an inference would not be made from the comment. The jury knew the defendants were presently on trial for a violation of the controlled dangerous substances law and that the police officer who made the statement was a narcotics agent. This remark is no manner prejudiced the defendants; in any event, the trial judge admonished the jury to disregard the comment. This assignment of error does not present reversible error.

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


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

text:
    STATE of Louisiana v. Raymond PERIQUE and Claudia Merritt.
    No. 58349.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Broderick A. Bagert, Sr., New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Raymond Perique and Claudia Merritt were charged in the same bill of information with possession with the intent to distribute a controlled dangerous substance, to-wit: heroin, in violation of La.R.S. 40:966. After trial by jury, Raymond Pe-rique was found guilty as charged and sentenced to life imprisonment at hard labor. Claudia Merritt was found guilty of possession of heroin and was sentenced to serve ten years at hard labor. On appeal, Perique relies on thirteen assignments of error and Merritt relies on fourteen assignments of error for reversal of their convictions and sentences. Where the alleged errors are common to both appeals, we will consider them together.

ASSIGNMENT OF ERROR NO.

1 (Perique)

Defendant Perique contends that the trial judge erred in not requiring the state to furnish “concisely the time and place of the alleged offense” as requested by him in his motion for a bill of particulars. As a result, defendant argues that the scope of the prosecution was not limited, and he could not properly prepare for trial.

In a motion for a bill of particulars, defendant asked for (in addition to other requests granted) the time of day and the location of the alleged offense. The state answered that defendant possessed the heroin from 1:30 p. m. to 2:10 p. m. on April 16, 1974 (date of crime) and that the heroin was recovered from the yard of 1819 Leonidas Street in New Orleans. At the hearing on the motion for a bill of particulars, the prosecutor further supplied defendant with the details that Perique had run through the alleyway along 1821 Leonidas Street and had thrown the heroin into the yard of 1819 Leonidas Street from where it was recovered.

The purpose of a bill of particulars is to inform the defendant more specifically of the nature and cause of the charge against him. However, the defendant is not entitled to the details of the evidence with which the state expects to prove its case. State v. Knight, 323 So.2d 765 (La.1975).

Not only was defendant Perique furnished with the time and location of the offense, as requested in his motion for a bill of particulars, but the state also supplied the additional details that Perique had thrown the heroin into the yard of 1819 Leonidas Street as he ran down the alley along 1821 Leonidas. Hence, defendant's contention .that the state’s answers failed to apprise him of what he was expected to meet at trial is without substance. The trial judge correctly ruled that the particulars furnished by the state were good and sufficient. Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3 (Perique)

Defendant Perique contends that the trial judge erred in denying his pretrial motion for production of tape recordings of police radio communications between 12 noon and 7:00 p. m. on April 16, 1974 (Assignment of Error No. 2) and in denying his request for the issuance of a subpoena duc-es tecum ordering production of these tapes at the suppression hearing (Assignment of Error No. 3). Defendant argues that an examination of these tapes would reveal no probable cause at the time of defendant’s arrest and search and a conflict between the conversation on the tapes and the trial testimony of the police officers. He further argues that the failure of the state to produce the tapes for his examination constitutes a denial of due process, citing as authority Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963) and Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

According to the record, at the hearing on defendant’s motion for production as well as at a subsequent hearing on his request for the issuance of a subpoena duces tecum for the tapes, despite the state’s assertion that there was nothing of an exculpatory nature contained therein, the trial judge ordered the state to produce any part of the recorded tapes that might contain material of an exculpatory nature. At the conclusion of the second hearing, defendant’s request for an in camera inspection of the tapes was taken under advisement. Subsequently, the trial judge ordered the state to produce the tapes for an in camera inspection. This was held in the court’s chambers, and defense counsel was given the opportunity to hear the tapes. Thus, counsel had full opportunity to hear the content of the conversations of the police officers and to make use of this information at trial. Accordingly, defendant suffered no prejudice as a result of the trial judge’s rulings denying his motion for production and his request for the issuance of a subpoena duces tecum for the tapes. Assignments of Error Nos. 2 and 3 are without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 6 (Perique)

These assignments of error relate to the denial of defendant’s motions to suppress the heroin thrown over the fence into the yard of 1819 Leonidas Street by Perique as he was being chased on foot by the police officers. Perique contends that the initial chase by the police was improper; therefore, the seizure of the abandoned property was illegal and should have been suppressed.

At the suppression hearing, evidence was introduced that on April 11, 1974 information was received by the police from a confidential informant who had given reliable information in the past which led to arrests and convictions of narcotics traffickers in the city of New Orleans; that Raymond Perique, known as “Butterbowl,” was staying at 8611 Belfast Street in New Orleans with Claudia Merritt; and that Perique had sent a messenger out of town to pick up a quantity of heroin. Inquiry to the utility company confirmed that Claudia Merritt resided at 8611 Belfast Street. An immediate surveillance of this residence was set up. One of the police officers participating in the surveillance testified that he had known that Perique had been previously convicted of narcotics violations. This officer recalled arresting Perique for possession of heroin in 1971, which arrest had led to his conviction. From April 11 to April 16, various phone calls were received from the informant relaying information as to the possible arrival of the heroin at this residence. The informant gave the police the information that, when the delivery would be made, Perique would be driving either a 1969 “white over green” Pontiac or an orange Firebird with given license numbers. The information also described the dress of Claudia Merritt (the possible messenger) as a gray pants suit. Taking part in the surveillance were Officers Haab, Dabdoub, Barreré and Brady. At 1:30 in the afternoon of April 16, a green Firebird pulled up to the residence. A tall black male alighted from the passenger side of the vehicle. He knocked at the door and called, out to someone in the residence. He then proceeded down the alleyway alongside the house. A few minutes later, he returned to the vehicle carrying a folded newspaper in his hand and left. At 1:55, Claudia Merritt, wearing a gray pants suit, came out of the residence. She walked down Belfast to Joliet Street where she entered a “white over green” Pontiac and drove back to 8611 Belfast, got out, left the motor running and waved as if signaling to someone in the residence. She then went into the residence and Perique came out carrying a yellow and green box described as a J & B Scotch half-gallon whiskey box. He looked up and down the street, entered the Pontiac, and drove off at a high rate of speed. The officers notified another unit of the surveillance team that picked up and pulled behind the Perique vehicle near Claiborne Avenue, at which time Perique looked back and apparently recognized the unmarked car as a police vehicle. Perique then sped off traveling at times at a speed estimated to be 100 miles per hour. During this automobile chase, Perique crashed into several vehicles. The last car he struck rendered the Pontiac inoperative. Perique alighted from the vehicle with the J & B Scotch whiskey box under his arms and ran into the alleyway alongside 1821 Leonidas Street. The officers gave chase on foot. Perique fired two shots at the police officers who returned the fire. Perique was seen by the officers throwing the J & B Scotch whiskey box into the yard of 1819 Leonidas Street. As Perique attempted to jump the fence, he was caught, arrested and advised of his rights. The cardboard box was immediately retrieved by one of the officers. It contained sixty-one bundles, each bundle containing twenty-five tinfoil packets of what appeared to be heroin. A .22 caliber gun with four live cartridges and two spent casings were recovered from the immediate area in a clump of weeds.

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.Code Crim.P. art. 215.1, as well as both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Dixon, 337 So.2d 1165 (La.1976); State v. Cook, 332 So.2d 760 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be deemed under the facts of each case by whether the officers had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Dixon, supra; State v. Cook, supra; State v. Weathers, 320 So.2d 892 (La.1975). The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Cook, supra; State v. Wines-herry, 256 La. 523, 237 So.2d 364 (1970). If the officers do not have the right to make the investigatory stop, property abandoned or otherwise disposed of as a result thereof cannot be legally seized by the police officers. State v. Lawson, 256 La. 471, 236 So.2d 804 (1970).

The officers in the instant case had reliable information that Perique (and Merritt) would be making a delivery of heroin in a 1969 white and green Pontiac from 8611 Belfast Street. The informant had furnished reliable information in the past which had led to arrests and convictions. The officers knew that Perique had been previously convicted of narcotics violations and confirmed the information that Merritt resided at that address. The details of the information furnished as to the description of Merritt’s dress and the vehicle involved were corroborated by the officers in their surveillance of the residence. Further observations by the police officers of the conduct of Merritt and Perique confirmed the information supplied by the informant. It is clear that, under circumstances such as these, an informant’s tip can provide reasonable cause to detain and question a suspect. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Whether or not the officers in this case may have also had probable cause to make a warrant-less arrest or search at the time of their initial attempt to stop Perique’s vehicle, we are satisfied that the information given by the informant carried with it enough indicia of reliability to justify the officers in making an investigatory stop. Therefore, since the initial stop would have been justified, the subsequent seizure of the abandoned heroin was legal and admissible in evidence against Perique at trial. Hence, the trial judge did not err in overruling defendant’s motions to suppress the evidence. Assignments of Error Nos. 4 and 6 are without merit.

ASSIGNMENT OF ERROR NO.

5 (Perique)

Defendant contends that the trial judge erred in denying his motion for a severance. He argues that a joint trial prevented him from calling his co-defendant to testify as a witness without her consent.

La.Code Crim.P. art. 704 provides:
Jointly indicted defendants shall be tried jointly unless:
(1) The state elects to try them separately; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

At the hearing on the motion for severance, no evidence was adduced. The sole basis for severance in this matter is the contention that a joint trial prevented defendant from calling his co-defendant as a witness without her consent. In State v. Baker, 288 So.2d 52 (La.1973), where a similar contention was made, we stated:

. [T]his court has squarely held that an accused is not entitled to severance simply because he alleges that he wishes to call his codefendant as a witness, which he cannot do when the code-fendant is on trial with him for it was contrary to a defendant’s constitutional right against self-incrimination to compel him to take the stand. In holding this contention to be without merit, we have observed that separate trials would not assure this right. Both defendants were involved in this crime which involved only one transaction. Therefore, even if severance were granted, the codefendant not being tried could not be compelled to testify. He could claim his Fifth Amendment rights, [citations omitted]

This holding was reiterated in State v. Med-lock, 297 So.2d 190 (La.1974), a case also involving a charge of possession with intent to distribute a controlled dangerous substance, wherein we stated:

. Nor can defendants’ bare allegation that a joint trial would deprive them of the right to call the co-defendants as witnesses avail them. We have repeatedly held that such an allegation does not, of itself, warrant severance since the co-defendants can plead the Fifth Amendment privilege against self-incrimination at the separate trials. See State v. Baker, 288 So.2d 52 (La.1973) and cases cited therein.

Accordingly, in the instant case, the trial judge did not err in denying defendant’s motion for a severance. Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO.

8 (Merritt)

Defendant Merritt contends that the trial judge erred in allowing the heroin to be displayed to the jury in a prejudicial manner. She argues that only the box in which the heroin was found should have been shown to the jury rather than the display of its contents (tinfoil packets of heroin attached to white sheets of paper). The basis of her argument is that the only evidence connecting her to the heroin was the fact that she was standing outside her residence when Perique walked out carrying the J & B Scotch whiskey box.

There is no merit to this contention. The jury was presented with evidence relating to the J & B Scotch whiskey box from the time Perique came out of Merritt’s house carrying the box until the time it was recovered by the police from the yard of 1819 Leonidas Street where it had been thrown by Perique as he was being chased by the police. Inside the box were sixty-one bundles — each bundle containing twenty-five tinfoil packets of heroin. The arresting officer testified that he taped the tinfoil packets to white sheets of paper in order to permit him to place his initials on the evidence for identification. Further evidence tracing the custody of the heroin from the time of its recovery to its admission in evidence at trial was presented.

The evidence (heroin) was highly relevant to the prosecution of this case. It was properly identified as being related to the case. The purpose of taping the tinfoil packets to the white sheets of paper was to permit the arresting officer to place his initials on the evidence for identification. Hence, the heroin was admissible in evidence. Moreover, we find no prejudice to defendant in the manner in which it was displayed to the jury. Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO.

10 (Perique)

ASSIGNMENT OF ERROR NO.

11 (Merritt)

Defendants claim that the trial judge erred in permitting Officer Frank T. Ben, who was qualified as an expert in the field of wholesale distribution of heroin and identification of track marks, to examine their arms in the presence of the jury and to state that he could not find any such marks on either accused. Perique argues that the lack of track marks does not negate the use of heroin. Therefore, the evidence was irrelevant. Merritt argues that requiring her to show her arms to Officer Ben in the presence of the jury was highly prejudicial, comparing such exhibition before the jury to the day when prisoners were shown to the jury while still in chains.

Officer Ben’s testimony was offered to establish that, in his many years of experience with narcotics users, he had never seen an addict in possession of sixty-one bundles of heroin (each bundle consisting of twenty-five tinfoil packets). The substance of his expert testimony was to point out that the amount of heroin seized, coupled with the lack of track marks on the arms of either defendant, indicated that the heroin in this matter was to be used in the wholesale distribution of the drug.

On previous occasions, this court has allowed testimony at trial that track marks were present on the arm of an accused to prove an essential ingredient of the crime charged, i.e., guilty knowledge. State v. Thomas, 329 So.2d 704 (La.1976); State v. Pierre, 302 So.2d 10 (La.1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972); State v. Williams, 260 La. 1167, 258 So.2d 539 (1972); State v. Smith, 257 La. 896, 244 So.2d 824 (1971). In these cited cases, the presence of track marks was considered relevant to prove guilty knowledge. Likewise, in this matter, the lack of track marks is relevant in the proof of intent to distribute the drug. Under these circumstances, we do not consider that the trial judge erred in permitting the examination of defendants’ arms for track marks in the presence of the jury. These assignments of error lack merit.

ASSIGNMENT OF ERROR NO.

12(Merritt)

Defendant Merritt contends that the trial judge erred in denying her motion for a directed verdict of acquittal after the close of the state’s evidence. She argues that there was no evidence of her actual or constructive possession of the heroin or that she knew that the content of the J & B Scotch whiskey box was anything other than scotch whiskey.

This court held in State v. Smith, 257 La. 1109, 245 So.2d 327 (1971) that one need not actually possess the controlled dangerous substance to violate the prohibition thereof; constructive possession is sufficient. We further stated in Smith that a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion if he willfully and knowingly shares with the other the right to control it. Guilty knowledge is an essential ingredient of the crime of possession of a controlled dangerous substance. State v. Porter, 296 So.2d 302 (La.1974). Whether the accused knew the substance was a narcotic drug is a matter of proof by direct or circumstantial evidence. However, the question of sufficiency of the evidence is a matter not for this court, but for a jury. It is only where there is no evidence at all of an essential element of the crime charged that this court may legally set aside the conviction on appeal. State v. Knight, 298 So.2d 726 (La.1974).

The record discloses some evidence that Claudia Merritt had knowledge of the heroin in the J & B Scotch whiskey box and shared in the right to control it. Merritt resided in the residence located at 8611 Belfast Street. There was also evidence that Perique, a known convicted narcotics violator, also resided at the same address. On April 16, 1974 at about 1:00 in the afternoon, the police observed a green and white Pontiac located on Joliet near Belfast Street. The police has previously seen Pe-rique operating this vehicle. At 1:55, Claudia Merritt was observed exiting 8611 Belfast Street. She walked down Belfast to Joliet Street where she entered the Pontiac and drove back to 8611 Belfast, got out, left the motor running and the door open, and waved as if signaling to someone in the residence. At this time, Perique came running out of the house carrying the J & B Scotch whiskey box in his arms. He entered the Pontiac, closed the door and drove off at a high rate of speed.

We are of the opinion that these circumstances constitute “some evidence” that Claudia Merritt knowingly and constructively possessed the heroin. Hence, the trial judge properly denied her motion for a directed verdict of acquittal. Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 12 (Perique)

ASSIGNMENT OF ERROR NO. 13 (Merritt)

Defendants contend that the trial judge erred in denying their motions for a new trial. Perique argues that he is entitled to a new trial based upon the errors urged in this appeal. We reject this contention for the same reasons set forth in the previous assignments of error. Defendant Merritt first urges as error the trial judge’s refusal to grant her motion for a new trial grounded on the allegation that the verdict was contrary to the law and evidence. Such an allegation presents nothing for our review. State v. Jack, 332 So.2d 464 (La.1976).

Defendant Merritt also argues that the trial judge erred in not granting a new trial on the ground of newly discovered evidence. Two arguments are advanced in support of this contention. She first claims that her co-defendant, Raymond Perique, after having been convicted, is now prepared to testify on her behalf. Secondly, she argues that the trial judge’s suppression of Perique’s inculpatory statement precluded admission in evidence of that portion of his statement that exculpated her. Therefore, she argues that the trial judge erred in denying her motion for severance.

There is no merit to this contention. First, no showing has been made of the facts that would be established by Pe-rique’s testimony as required by La.Code Crim.P. art. 854 or that, if his testimony had been introduced at trial, it would probably have changed the verdict of guilty. La.Code Crim.P. art. 851(3). In any event, we do not consider that, after a joint trial, an allegation in a motion for a new trial by one co-defendant that the other co-defendant will now testify on his behalf is a sufficient ground for the granting of a new trial. La.Code Crim.P. art. 851. Secondly, we find no substance in Merritt’s claim that, since the suppression of Perique’s in-culpatory statement precluded admission in evidence of that portion of his statement that exculpated her, the trial judge erred in denying her motion for a severance. No showing has been made what portion, if any, of Perique’s statement would have exculpated her. No attempt was made to offer any evidence at either the hearing on the motion for severance or on the motion for a new trial. On the contrary, Merritt’s written motion for severance is grounded on the allegation that Perique’s statement would inculpate her.

In sum, these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 13 (Perique)

ASSIGNMENT OF ERROR NO. 14 (Merritt)

Defendants contend that the trial judge erred in not hearing their motions to quash the bill of information on the ground that the general venire improperly excluded women in violation of their constitutional rights. They argue that these motions to quash were never tried by the court, contrary to La.Code Crim.P. art. 537.

As far as we can ascertain from the record, defendants’ motions to quash were filed on September 30,1974 in the first trial of this matter which ended in a mistrial on October 1, 1974. Defendants argue that it was unnecessary for them to file a new motion to quash in these proceedings as they were tried under the same bill of information and before a panel of jurors selected from the same general venire.

Pretermitting the necessity of filing new motions to quash in this proceeding, we find no substance in defendants’ contentions. The present matter was tried on October 7,1974. In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), decided on January 21, 1975, the Supreme Court held that the Louisiana provisions for the exemption of women from juries was unconstitutional. However, in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 1190 (1975), the Court held that the Taylor ruling was not to be applied retroactively, as a matter of federal law, to convictions by juries empanelled prior to the date of the Taylor decision. This court has held, consonant with Daniel, that, as a matter of state law, Taylor would not be applied retroactively. State v. Devore, 309 So.2d 325 (La.1975); State v. Rester, 309 So.2d 321 (La.1975). Hence, these assignments of error lack merit.

We notice that defendants’ motions for new trial were overruled on November 6, 1974. On the same day, defendants were sentenced. The record does not reveal that defendants waived the twenty-four hour delay for imposition of sentence, after the overruling of their motions for new trial, as provided in article 873 of the Code of Criminal Procedure. Hence, the trial court erred in sentencing defendants prior to the twenty-four hour delay provided in the aforesaid article. We must therefore annul and set aside the sentences and remand for resen-tencing.

DECREE

For the reasons assigned, the convictions are affirmed; the sentences are annulled and set aside, and the case is remanded to the trial court for resentencing in accordance with law.

DIXON, J., concurs with reasons.

CALOGERO, J., concurs.

DENNIS, J.,

concurs, not fully agreeing with the treatment of assignments 4 and 6 (Perique).

DIXON, Justice

(concurring).

I respectfully concur in the majority opinion, but fear that it may be subject to misunderstanding. We do not and cannot hold that Louisiana Code of Criminal Procedure article 215.1 is not circumscribed by the Fourth Amendment of the United States Constitution and Article 1, § 5 of the Louisiana Constitution. The right of the police to stop must be measured by Fourth Amendment standards. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There it was stated:

. . There is some suggestion in the use of such terms as ‘stop’ and ‘frisk’ that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a ‘search’ or ‘seizure’ within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’ Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
The danger in the logic which proceeds upon distinctions between a ‘stop’ and an ‘arrest,’ or ‘seizure’ of the person, and between a ‘frisk’ and a ‘search’ is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. .
Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context. In order to assess the reasonableness of Officer McFadden’s conduct as a general proposition, it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? . . (Citations and footnotes omitted). 392 U.S. 1, 16-22, 88 S.Ct. 1868, 1877-1880, 20 L.Ed.2d 889.

      . Defendant Raymond Perique has neither briefed nor argued Assignments of Error Nos. 7, 8, 9 and 11. Defendant Claudia Merritt has neither briefed nor argued Assignments of Error Nos. 1, 2, 3, 4, 5, 6, 7, 9 and 10. Therefore, we consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976) and State v. Carlisle, 315 So.2d 675 (La.1975).

      . Act No. 527, § 1 of 1975, effective September 12, 1975, amended article 778 of the Code of Criminal Procedure to eliminate the authority of the trial judge to direct a verdict of not guilty in a jury trial. The present jury trial took place on October 7, 1974, prior to the effective date of said amendment. Hence, the amendment is inapplicable here.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Leonard ERVIN.
    No. 58406.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Jake Shapiro, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, III, Dist. Atty., Jack Pierce Brook, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Leonard Ervin, was tried and convicted of the offense of simple burglary, and sentenced to serve nine years, at hard labor. La.R.S. 14:62. On appeal, he relies upon one assignment of error.

In the early morning hours of October 11, 1975, Susan McCullough was awakened by a noise in her house, and armed with a small caliber pistol, went to investigate. In the darkened living room, she saw a man stooped over her stereo. When she attempted to shoot at him, the gun misfired, and the frightened intruder fled from the house. She summoned the police and described the intruder to them as a black male, approximately five feet, four inches tall and weighing around 130 pounds. The record reveals that defendant is approximately five feet, nine inches tall and weighs over 150 pounds.

Ms. McCullough testified at trial that she had seen the man several days before this incident when he opened her front door claiming to have heard someone invite him in, then departed at her request. It is unclear whether she communicated this information to the police during their initial investigation.

Later in the morning of October 11, Ms. McCullough saw defendant at a commercial establishment across the street from her house. Believing him to be the man who had come to her door and later broken into her home, she learned his name and address from neighbors and gave them to the police. Defendant was subsequently arrested for the simple burglary of Ms. McCullough’s residence.

At trial, defendant presented an alibi defense: his sole witness, Laney Mae Speed, testified that defendant had spent the night of the burglary with her.

On cross-examination, Ms. Speed testified that she had known defendant since 1972. When asked how frequently she saw him between 1972 and 1975, she responded, “almost every day.” At this point the prosecuting attorney requested that the jury be removed from the courtroom. When this was done, he informed the court that the witness could not have seen defendant on a daily basis since 1972 because he had been incarcerated in Angola State Penitentiary from October, 1973 until September, 1974. The court advised Ms. Speed of the penalties for committing perjury and instructed the prosecutor to resubmit his questions to her. She then answered that she had visited defendant only three times during his incarceration at Angola, but explained that she had understood the question to ask how often she saw defendant when he was at home in Alexandria.

Defense counsel agreed that the matter should be clarified before the jury but argued that reference to defendant’s previous incarceration at Angola would be inadmissible. The trial judge held a different view:

“He is impeaching her testimony and you are allowed to impeach on this basis under the circumstance we’re under. I don’t think the issue should be brought to extensive amount, but you [the prosecutor] can ask her where she visited him and I will allow that.”

The jury was returned to the courtroom. In response to the prosecutor’s question, Ms. Speed admitted that her earlier statement had been incorrect and that she had in fact seen defendant only three times between October, 1973 and September, 1974. She was then asked, “And where did you see him?” Defense counsel promptly interrupted with an objection, asserting that this had no bearing upon the matter and was unnecessary to impeach her prior testimony. The court overruled the objection whereupon defense counsel again objected that the information sought was irrelevant, but the court adhered to its ruling and instructed Ms. Speed to answer the question. She replied that she had seen defendant “at Angola,” and defense counsel once more noted his objection.

Defendant contends that the trial court erred in ruling the reference to Angola admissible because it alluded to another crime committed by defendant which was not relevant to the impeachment of the witness.

The State urges that defendant has not properly preserved the issue for review. Louisiana Code of Criminal Procedure articles 770 and 771 provide for a mistrial or admonition to the jury when a remark or comment made during trial refers directly or indirectly to other crimes committed by a defendant as to which evidence is not admissible; however, the failure to make the required motion is considered a waiver of the error. La.C.Cr.P. art. 770, Official Revision Comment (b); State v. Pearson, 336 So.2d 833 (La.1976). On the basis of this authority and in the absence of a motion for a mistrial or request for an admonition, the State maintains that the issue is not reviewable.

Defendant argues persuasively that Louisiana Code of Criminal Procedure articles 770 and 771 are inapplicable here. Those articles provide corrective measures where an unheralded prejudicial remark has crept into the proceedings. We have strictly adhered to the rule requiring prompt action by a defense counsel in such circumstances to prevent his gambling upon a favorable verdict and then, upon defendant’s conviction, resorting to appeal on errors which either could have been corrected at the time or should have put an immediate halt to the proceedings. State v. Smith, 339 So.2d 829 (La.1976). In the instance case, defense counsel made every reasonable effort to prevent the introduction of the statement complained of in advance of its utterance. The trial judge was fully aware of the nature of the statement before he allowed it to be presented to the jury. Defendant’s assignment of error relates not merely to the prejudicial remark but to the trial court’s ruling which adjudged the prejudicial reference proper prior to its actual utterance. A motion for a mistrial or request for an admonition after the remark was entered would clearly have been a vain and useless act, and under the circumstances we find that none was required.

The trial judge ruled that the State’s inquiry as to where Ms. Speed visited defendant was a permissible exercise of its right to impeach her testimony. Generally, the State may impeach the testimony and credibility of defense witnesses as to all relevant matters, La.R.S. 15:486 and 15:494; however, where the inquiry bears upon an accused’s past criminal record, relevancy is not the sole limiting criterion. Regard must also be had for the substantial risk of prejudice to the defendant which might result from adverting to his prior misdeeds. The danger inherent in admitting evidence of prior crimes is that the jury will convict a defendant solely because he has been shown to be a bad man:

“ * * * The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge . . These reasons of Auxiliary Policy . . . , directed to prevent the risks of reaching verdicts through insufficient evidence, have operated to exclude that which is in itself relevant.” 1 Wig-more, Evidence, § 194 (3d ed. 1940).

To minimize the possibility of such prejudice to the defendant, our statutes and the jurisprudence interpreting them exclude evidence which tends only to show the bad character of the accused, except in rebuttal of the evidence introduced by him to show good character. La.R.S. 15:481. However, evidence of the defendant’s prior crimes may be admitted when it has a relevancy independent of establishing his criminal disposition. See La.R.S. 15:446 (acts tending to establish knowledge, system or intent); La.R.S. 15:447 (offenses part of the res ges-tae); and La.R.S. 15:495 (impeachment of the defendant’s credibility by evidence of conviction of crime).

These exceptions to the general rule of inadmissibility may not be exclusive. Conceivably, whenever the other crimes evidence is relevant for some other purpose than to show that the accused is a bad man and thus more likely to have committed the crime with which he is charged, the rule of exclusion is inapplicable, and the evidence is admissible if its probative value outweighs its possible prejudicial effect. McCormick on Evidence, § 190 (Cleary ed. 1972). See also, State v. Prieur, 277 So.2d 126 (La.1973) and State v. Moore, 278 So.2d 781 (La.1973).

In the instant case, the fact that Ms. Speed had visited defendant only three times over a period of a year was relevant to impeach her testimony that she had seen him almost daily. However, the witness’ own admission that her previous testimony had been false and that she had in fact seen defendant only three times from October, 1973 to September, 1974, effectively impeached her credibility. Where she visited defendant on those three occasions, although logically relevant, was of limited permissible utility to the State. The statement that defendant had been “at Angola” carried the clear implication that he had been incarcerated in the penitentiary in connection with another offense. Because such information is highly prejudicial, was not admissible for any purpose provided by statute, and in this case had little probative value, we find that the trial judge abused his discretion in failing to exclude it.

For the foregoing reasons, defendant’s conviction is reversed and the sentence imposed upon him is annulled and set aside. The case is remanded to the district court for a new trial.

REVERSED AND REMANDED.

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

       Furthermore, it should be noted that defense counsel may have been prevented by the court from fully articulating a motion for a mistrial when the following transpired:
      “[DEFENSE ATTORNEY]: Your Honor, at this point, I want to enter a formal objection to the admission of that testimony or ask the court—
      “BY THE COURT: That objection is noted.”
      By its interruption of counsel, the court may have cut off a motion for a mistrial, although defendant’s brief does not make such a claim.


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

text:
    STATE of Louisiana, Appellee, v. Jamie Lee WILLIAMS, Appellant.
    No. 58585.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      Curtis W. Cary, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Albert S. Lutz, Jr., Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant, age 16, pleaded guilty to attempted aggravated rape, La. R.S. 14:27, 42, and was sentenced to fifty years at hard labor. The sole assignment of error strongly urged is that the sentence constituted excessive punishment in violation of Article 1, Section 20, La. Constitution of 1974.

I.

The circumstances of the plea are as follows:

The defendant, then a fifteen year old boy, was picked up at about 7:30 in the evening while riding his bicycle from his cousin’s house to his home. The police detained him as a suspect of some rapes in the neighborhood (one of which had occurred a week earlier). They did so because his description and bicycle resembled that of the reported rapist.

He was brought to the police station. Within thirty minutes of interrogation, he orally confessed to the present rape and to two other unsolved rapes in the neighborhood. The police officers testified that they had previously explained his Miranda rights to him and that he voluntarily waived them in confessing. The confession was reduced to writing two days later, after more interrogation the following day.

After an evidentiary hearing, the trial court overruled the defendant’s motion to suppress these confessions as involuntarily obtained. Three months later, the defendant, then aged 16, pleaded guilty by way of a plea bargain.

The defendant, not admitting guilt of rape, expressly pleaded guilty in order to avoid the then-applicable death penalty. (On the other hand, the state made a showing of its strong evidence indicating guilt of the crime.)

The defendant was fully interrogated by the court for it to ascertain that the plea was free and voluntary, with full understanding of its consequences. The defendant also testified that he was satisfied with his representation by appointed counsel.

The state, in agreeing to the plea, did so as to assure the certainty of punishment, without the delays of jury trial and appellate proceedings. It did not dismiss the charges as to the other two rapes; it agreed only not to bring the defendant to trial on them “so long as he is serving a sentence on this plea until such time as the statute of limitations runs on the other indictments.”

II.

A plea of guilty waives all non-jurisdictional defects in the proceedings prior to the plea, except those represented by a qualified plea conditioned upon reservation of specified pre-plea errors. State v. Crosby, 338 So.2d 584 (La.1976). Nevertheless, a complaint of sentence-excessiveness is not waived under this doctrine, since the sentence occurs subsequent to the plea.

However, the issue of the excessiveness of the penalty cannot be raised unless, at the time it is imposed, objection to it is made on the ground that it is excessive. La.C.Cr.P. art. 841; State v. Williams, 322 So.2d 177 (La.1975). See also State v. Bryant, 325 So.2d 255 (La.1976) (concurring opinion, 325 So.2d 265 at 267). After such objection (if the excessiveness is reviewable, which this court has not yet held), a hearing may be held at which the factual circumstances indicating excessiveness or not may be shown, with an opportunity for the trial court to amend its sentence accordingly, La.C.Cr.P. art. 881, if such be the case.

The issue of excessiveness is therefore not preserved for appellate review, if any, by us.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

SANDERS, C. J., and MARCUS, J., concur in the decree.

DENNIS, J., concurs in the result.

DIXON, J., concurs with reasons.

TATE, J., files additional concurring reasons.

DIXON, Justice

(concurring).

I respectfully concur.

To require a contemporaneous objection to the sentence as “excessive” to preserve appellate review is not a reasonable rule. Here, however, there was a plea bargain.

TATE, Justice

(concurring).

The writer appends these additional comments in elaboration of views previously expressed by him in State v. Bryant, 325 So.2d 255, 265 (La.1976) (concurring opinion).

Sooner rather than later this court must face the issue of the added dimension of judicial review provided by Art. I, Section 20, Louisiana Constitution of 1974. This constitutional provision not only prevents subjection of any person by legislature or court to cruel or unusual punishment, but also to “excessive” punishment.

The appeal in the present case forced me, as author for the court, to become concerned with study and consideration of the legal and practical issues which arise if excessiveness of a sentence is now constitutionally a subject of appellate review. For what use they may be in suggesting future lines of inquiry, I am summarizing my at least tentative conclusions as to them; even though, for procedural reasons, we ultimately concluded in the instant case that the issue of excessiveness is not before us.

The issues implicitly raised by appellate review as to excessiveness concern:

I. Did the Louisiana Constitution of 1974 indeed mandate judicial review as to excessiveness; II. If so, what are the procedural methods or problems involved in such review?; III. If excessiveness is reviewable, what sources, if any, provide guidance as to excessiveness or not of a sentence?

I.

The Louisiana Constitution of 1921 merely prohibited “cruel and unusual punishment.” Article I, Section 12. In a deliberate change of wording, the new Louisiana Constitution of 1974 broadened the constitutional provision (and the duty of our courts in review of sentences) by providing, Article I, Section 20: “No law shall subject any person ... to cruel, excessive, or unusual punishment.” (Italics mine.)

The deliberate inclusion of a prohibition against “excessive” as well as “cruel and unusual” punishment adds an additional constitutional dimension to judicial imposition and review of sentences.

By the new constitution’s mandate, the People have made inapplicable the prior standards of judicial review of sentences as cruel and unusual established by prior jurisprudence interpreting the former state constitutional provision, as well as jurisprudence interpreting the federal constitution’s Eighth Amendment prohibition against “cruel and unusual punishments.”

Two of the leading figures of the 1973 constitutional convention have correctly summarized, in my opinion, the effect of the new constitutional requirement that no sentence imposed under our criminal law be “excessive”.

Professor Lee Hargrave of the LSU Law School faculty served as the co-ordinator of legal research for the Constitutional Convention of 1973; he directed research for the committee on the Bill of Rights and Elections. In discussing this provision of the new constitution, Professor Hargrave states in his article, “The Declaration of Rights of the Louisiana Constitution of 1974”, 35 La.L.Rev. 1, 63 (1974):

“The prohibition against cruel or unusual punishment is derived from the eighth amendment and Article I, § 12 of the 1921 constitution. The new section, however, adds that no law shall subject any person to ‘excessive punishment,’ broadening the pri- or prohibition against ‘excessive fines’. This gives the courts, in the exercise of their judicial review power, a basis for determining that sentences, whether fine, imprisonment or otherwise, though not cruel or unusual, are too severe as punishment for certain conduct and thus unconstitutional. It is a basis for extending the court’s control over the entire sentencing process.”

One of the co-authors of the Constitutional Convention’s Declaration of Rights now Article I of the Louisiana Constitution of 1974, State Representative Louis “Woody” Jenkins, wrote, see “The Declaration of Rights”, 21 Loy.L.Rev. 9, 39 (1975):

“The prohibition against ‘excessive . punishment’ makes a great change in the law and requires the courts to do justice in each case, regardless of any legislative assertion. This standard allows the courts to avoid strained interpretations of what is cruel and unusual punishment, in order to reach the sometimes more important question of whether the punishment does, in fact, fit the crime. For example, it is much easier to find that imposition of the death penalty is excessive as punishment for such crimes as rape and kidnapping than that it is cruel or unusual. . . . Mandatory penalties are particularly suspect because they frequently have no relation to the magnitude of the offense.”

In contrast with Louisiana’s Section 20, the United States Constitution does not in terms prohibit “excessive” punishment. The Eighth Amendment reads, “Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted.”

The corollary provision of the previous Louisiana Constitution of 1921, Article I, Section 12, tracks the wording of the Eighth Amendment. Given the prior Louisiana constitution and the classic language of the Eighth Amendment to the United States Constitution, the addition of the word “excessive” — as applying to all punishments and not limited to fines — must be considered intentional, expanding of the prior law, and significant.

The constitutional history of the “cruel, excessive or unusual punishment” clause of the 1974 constitution — from committee through enactment — supports this thesis. And it is a fundamental tenet of constitutional construction that no word is to be treated as mere surplusage.

In order to understand the proper meaning to be given to the term “excessive punishment,” it is helpful to look at the jurisprudential gloss on the “cruel and unusual punishments” language of the Eighth Amendment to the United States Constitution. The United States Supreme Court held in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) that the notion of cruel and unusual punishments included an element of exeessiveness. But as developed in the case law, cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), the excessiveness referred to under the Eighth Amendment approaches the literal meaning of the “cruel and unusual.”

In light of this background, the term “excessive” in Section 20 of the 1974 Constitution must mean punishment which is excessive but which nevertheless might not fairly be characterized as cruel and unusual.

The dictionary defines “excessive” as “exceeding the usual, proper, or normal.” Webster, Seventh New Collegiate Dictionary (1967). A logical inference is the new language was intended to prohibit a level of punishment out of proportion with the offense. The wording of the 1864 (Article 94) and 1868 (Article 102) Louisiana Constitutions is helpful in this regard: “All penalties shall be proportioned to the nature of the offence."

It may be argued that Section 20 scrutiny of the punishment meted out under a law must be limited to the facial constitutionality of the penalty provisions. However, under the federal Eighth Amendment, “[i]t is also settled that the proscription of cruel and unusual punishments forbids the judicial imposition of them as well as their imposition by the legislature. Weems v. United States, 217 U.S. 349, 378-82, 30 S.Ct. 544, 553-555, 54 L.Ed. 793.” Furman v. Georgia, 408 U.S. 238, 241, 92 S.Ct. 2726, 2728, 33 L.Ed.2d 346 (concurring opinion).

Moreover, the focus of Louisiana’s Section 20 is to prevent “any person” from being subjected to excessive punishment (as will be made clear below): Thus, a particular penalty may be excessive, despite its appropriateness in other cases, given particular facts and circumstances in an individual case.

The phraseology of Section 20 is, “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment.” On the face of it, then, it might be suggested that Section 20 confines its application to the “law,” rather than to its application in a particular case. However, a study of the convention antecedents of Section 20 demonstrates otherwise.

As initially introduced in the Committee on the Bill of Rights and Elections (CBRE), the phrasing was as follows: “No person shall be subjected to torture or to cruel, unusual, or excessive punishments or treatments . . . ” CBRE Tentative Proposal No. 89, May 5, 1973; Documents of the Louisiana Constitutional Convention of 1973, Relative to the Administration of Criminal Justice (La. Const. Records Commn. 1976) (hereinafter “Documents”), at 863. On August 22,1973, the Committee amended the section on the Right to Humane Treatment by adding the prohibition against euthanasia, CBRE Tentative Proposal No. 278, Documents, at 929, but left the remainder intact.

The original Committee Proposal No. 2 used the same kind of phraseology, “No person shall be subject to torture or to cruel, unusual, or excessive punishments or treatments . . . ” The substitution for Committee Proposal No. 2 — Committee Proposal No. 25, reprinted as engrossed — used identical phraseology, “No person shall be subjected to euthanasia, torture or cruel, unusual or excessive punishments or treatments . . .” Committee Proposal No. 25 was reported out to the floor, and on First Enrollment, read as described above.

The change in phraseology from “No person shall be subject to” to “No law shall subject any person to” occurred on the floor before the entire convention on September 8, 1973. There was no objection to, or argument about, the phraseology of “No person shall be subjected to” as regards “cruel, excessive or unusual punishments.” Rather, the focus was on the prohibition against euthanasia, and whether or not, as phrased, any person could be allowed to die a natural death. See Verbatim Transcripts, Vol. XIV, 44th day, at 23 et seq. In response to this concern about the euthanasia prohibition, an amendment was proposed, rephrasing the language in the “No law shall subject any person to” form. Id. at 50. This amendment was adopted, id. at 53, and carried over into the final constitutional form of Section 20.

In its evolutionary context, Section 20 thus was meant to prohibit excessive punishment to a person for an offense, rather than merely to bar a legislative act excessive in punishment on its face. Section 20 guarantees each citizen’s “Right to Humane Treatment,” and is not merely a limitation on the legislature to enacting excessive-punishment laws.

Under the 1921 Constitution, the legislature attempted to limit judicial review of particular sentences under the “cruel and unusual punishment” clause, through Article 878, La.C.Cr.P. (1966) (and its source statute):

“A sentence shall not be set aside on the ground that it inflicts cruel or unusual punishment unless the statute under which it is imposed is found unconstitutional.” See also Official Revision Comment (a).

Under the 1974 Constitution, the legislature has not attempted to expand the Article 878 clause to “excessive punishment.” (Nor, if Section 20 mandates judicial review as to excessiveness of a sentence, may it constitutionally do so.)

Thus, at the present time no statutory bar purports to forbid judicial review of the excessiveness of a particular sentence. And indeed, the legislature in the 1976 regular session, Act 694, has recognized the propriety of this court’s review of at least death sentences on a case-by-case basis to determine if, on the facts, the sentences are excessive. Act 694 enacted a new Article 905.9, La.C.Cr.P., which reads in relevant part, “The Supreme Court of Louisiana shall review every sentence of death to determine if it is excessive.”

Support for the proposition that review is proper in this court for “excessiveness” of individual sentences is found in the only reference to “excessive punishment” in the convention floor debates.

Delegate Weiss had been assigned as the floor manager for the section on the Right to Humane Treatment. Documents, at 929. Delegate Willis asked him if the clause would “not allow me to appeal and have the judge review a sentence on the grounds that the sentence is excessive and so the punishment is excessive?” Delegate Weiss answered “yes,” but suggested that “an amendment is forthcoming in this regard.” Verbatim Transcripts, Vol. XIV, 44th day, September 8, 1973, at 20; Documents, at 690. The clause was never amended, however; and the availability of individual sentence review stands as originally intended by the constitutional provision.

This court has previously suggested that it will review a punishment for “excessiveness” in an appropriate case. See State v. Whitehurst, 319 So.2d 907, 909 & n.1 (La. 1975); State v. Fisher, 321 So.2d 519, 520 (La.1975) (majority opinion, and concurrence of Justice Dixon); State v. Pierce, 321 So.2d 523, 524 (La.1975) (concurrence of Justice Dixon). Indeed, in State v. Walker, 328 So.2d 87, 89 (La.1976), the court evaluated the “excessiveness” of a sentence on the merits and rejected the complaint that the sentence was excessive.

The writer suggests, in conclusion, that excessiveness of a sentence is reviewable on appeal by reason of the mandate of Section 20 of Article I of the Louisiana Constitution of 1974.

II.

The several authoritative studies of the criminal justice system made in recent years have all recommended that the sentencing system be reformed to include (a) principled and articulated reasons for sentencing, and (b) appellate review to help assure both individualized consideration and principled reasons for the imprisonment and its relative length.

See: American Bar Association Standards Relating to Appellate Review of Sentences (1968) and Relating to Sentencing Alternatives and Procedures, esp. Standards 41-4.6, 5.1-5.7, 7.1, 7.2 (1968); National Advisory Commission on Criminal Justice Standards and Goals Relating to Courts, Standards 5.1, 6.1 (1973), Relating to Corrections, Standards 5.1-5.19, Standards 16.7, 16.8 (1973); National Council on Crime and Delinquency, Council of Judges, Model Sentencing Act 2d (1972), reprinted at 18 Crime and Delinquency 335 (1972); American Law Institute, Model Penal Code, Sections 6.01-6.13, 7.01 to 7.09 (1962); American Bar Foundation Survey of the Administration of Justice in the United States, “Sentencing” (by R. 0. Dawson, published by Little, Brown & Co., 1969); National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure, especially Rules 612 and 613 (1974).

The substance of these informed recommendations by leading judges, prosecutors, defense attorneys, legislators, academics, penologists and others is that: sentencing should be accomplished as a result of a formal hearing following plea or conviction; at this hearing, a record should be made of aggravating and mitigating factors, such as including pre-sentence reports and relevant statements or information (under liberal rules of admissibility); the sentence itself should be on an articulated basis by the sentencing judge, explaining the reasons for the severity or leniency of the sentence in the light of accepted norms (see III below).

Sentence review is not a novel or revolutionary principle. At least twenty-six American states already afford it. See Comment, Appellate Review of Sentences: A Survey, 17 St. Louis University L.J. 221 (1973). Efficient procedures have been worked out, involving a minimum of technicality and delay. See Hopkins, Reviewing Sentencing Discretion: A Method of Swift Appellate Action, 28 UCLA L.Rev. 491 (1976).

In Louisiana, in the absence of legislation or formal court rule requiring this type of hearing and reasoned explanation for all more severe sentences, the sort of sentencing hearing above-indicated would not be made except where the defendant objected to the sentence as excessive, as noted in the majority opinion. Furthermore, in the absence of formal court rule exercising the constitutional power to review for exces-siveness all sentences (some of the authorities above cited recommend automatic review in all appeals for excessiveness of sentence), the excessiveness of the sentence would not be reviewed unless the offender had both objected to the sentence on that ground and had so questioned the excessiveness by an assignment of error.

III.

The rule of law implies that even discretion shall not be exercised at the whim of an individual officer of government (the judge, in the instance of sentencing), but shall rather be controlled, structured, and subject to some check as to its proper exercise. Davis, Discretionary Justice (LSU Press, 1969) (see especially pp. 133-41, relating to judicial sentencing).

The proposals to reform sentencing procedures and to afford appellate review all conclude that sentencing principles exist by which, on objective basis (but allowing for individualized deviation), certain factors can be used by both sentencing and reviewing judges to weigh the type of punishment (imprisonment, suspension, etc.) and its severity or leniency. In general, the factors tend to measure the seriousness of the crime against the offender’s previous record and his potential for contributing or not to future social stability.

With surprising unanimity, for instance, the recommendations in the light of these factors may indicate sentences of twenty-five to thirty years for violent crimes by those without hope to social redemption, to specified ranges of shorter terms of imprisonment for serious felonies to those without prior record of violence and with good prospects of rehabilitation. The authorities above cited in themselves afford a body of general and specific principle available for judicial application in sentencing and its review — principles evolved by some of the best American minds, judicial, legal, and social scientist, in the light of American experience.

The American Bar Association Standards recommend, for example, that sentencing institutes of judges in each state convene from time to time to develop criteria for the imposition of sentences, with participation of prosecutors, members of the defense bar, and corrections authorities. ABA Standards Relating to Sentencing Alternatives and Procedures, Standard 7.2 (1968).

Drawing on the experience of these studies, our own legislature has recently enacted criteria of aggravating or mitigating circumstances for the sentencing jury and appellate court to take into consideration in determining whether to impose the ultimate death penalty instead of life imprisonment for a capital offense. The surveys and studies cited have developed criteria of this nature with respect to various types of crimes (felonies involving violence or not, misdemeanors) and to various ranges of offenders (professional criminal, first-offender, young offender, etc.).

The experience of other states indicates that from these formal sources, including sentencing institutes in a given jurisdiction, a body of precedential law can develop affording coherence and a rational basis to the sentencing process.

Most of the present national recommendations recognize that a large discretion must be entrusted to the sentencing judge, who has primary responsibility in the sentencing function, to individualize the sentence according to the circumstances of the crime and of the offender before the court. However, important in the rule of law, the recommendations emphasize principled exercise of this discretion, with articulated reason for variations from normal ranges, and with appellate examination to assure some degree of principled regularity in the exercise of this large discretion.

      . The other assignment urges that La.R.S. 14:42, the statutory violation for which indicted, is unconstitutional because of the mandatory death penalty thereby provided. We have held that the statute itself is constitutional, although the death penalty as then provided by it is unconstitutional. Selman v. Louisiana, - U.S. -, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). See decisions summarized in State v. Fletcher, 341 So.2d 340 (La.1976).

      . This is also the understanding of Professor Hargrave:
      An innovation [in Section 20] is the provision, “No law shall subject any person to euthanasia.” The definition of euthanasia referred to during the debate was a common one — the act or practice of killing individuals that are hopelessly sick or injured, for reasons of mercy. As proposed by the committee, the language was, “No person shall be subjected to euthanasia,” but it was feared that this language might be construed to prevent a physician from halting extraordinary life-continuation treatments of a dying patient. A clarifying amendment was thus adopted to make clear that the prohibition is limited to laws requiring persons to be subjected to euthanasia.
      Hargrave, cited above, at 35 La.L.Rev. 63.

      . La.C.Cr.P. art. 905.4 (1976) provides:
      “The following shall be considered aggravating circumstances:
      (a) The offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, or armed robbery;
      (b) The victim was a fireman or peace officer engaged in his lawful duties;
      (c) The offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping;
      (d) The offender knowingly created a risk of death or great bodily harm to more than one person;
      (e) The offender offered or has been offered or has given or received anything of value for the commission of the offense;
      (f) The offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony;
      (g) The offense was committed in an especially heinous, atrocious or cruel manner.”

      . La.C.Cr.P. art. 905.5 (1976) provides:
      “The following shall be considered mitigating circumstances:
      (a) The offender has no significant prior history of criminal activity;
      (b) The offense was committed while the offender was under the influence of extreme mental or emotional disturbance;
      (c) The offense was committed while the offender was under the influence or under the domination of another person;
      (d) The offense was committed under circumstances which the offender reasonably believed to provide a moral justification or extenuation for his conduct;
      (e) At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication;
      (f) The youth of the offender at the time of the offense;
      (g) The offender was a principal whose participation was relatively minor;
      (h) Any other relevant mitigating circumstance.”


author: SUMMERS, J.,

text:
    Terrance E. DOWNEY v. Thomas R. CALLERY et al.
    No. 58964.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Thomas R. Callery, Walter M. Ro-venski, Francis J. Clancey, George Buckley, Edwin J. Herpich, H. F. Garrett and Employers Liability Assurance Corp., Ltd., applying for Certiorari, or writ of review to the Court of Appeal, 338 So.2d 937, Fourth Circuit, Parish of Jefferson.

Writ refused. On the facts found by the Court of Appeal, there is no error of law.

SUMMERS, J.,

see my concurring opinion to the denial of No. 58,998 in this case, La., 340 So.2d 1390.


author: SUMMERS, J., TATE, J.,

text:
    Terrance E. DOWNEY v. Thomas R. CALLERY et al.
    No. 58988.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Terrance E. Downey, applying for certiorari, or writ of review, to the Court of Appeal, 338 So.2d 937, Fourth Circuit, Parish of Jefferson.

Writ refused. On the facts found by the Court of Appeal, there is no error of law.

SUMMERS, J.,

(concurring in denial). I am of the opinion Canter v. Koehring, 283 So.2d 716 (La.1973) should be overruled. See also Act 147 of 1976, legislatively overruling Canter v. Koehring.

TATE, J.,

dissents from the denial. The facts characterized by the Court of Appeal as a delegation do not constitute in law a delegation of the president of this small company’s duty to furnish a safe place to work in this hazardous manufacturing plant, which had no safety program whatsoever. The Court of Appeal should not have disturbed this reasonably-based factual finding by the trier of fact.

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

CALOGERO, J., would grant the writ.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Carolyn CLARK, Appellant.
    No. 58224.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of attempted distribution of heroin, La.R.S. 14:27, 40:966, and sentenced to twenty years at hard labor. On her appeal, she relies upon two assignments of error, both relating to the sufficiency of the evidence by which she was convicted.

The assignments were perfected as to the denial of her motions for acquittal, La.C.Cr.P. art. 778, and for a new trial, La.C.Cr.P. art. 851. For appellate purposes, these assignments do not raise a reversible issue, unless there is a total lack of evidence to prove the defendant’s guilt of the crime charged or of an essential element of it. State v. Williams, 310 So.2d 513 (La.1975); State v. Pryor, 306 So.2d 675 (La.1975).

In the present case, an undercover narcotics agent testified on behalf of the state as an eyewitness to a transaction in which the defendant sold heroin to two individuals. As provided by La.R.S. 14:27 C (“Attempt”), “ * * * any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.” Some evidence thus proves the offense of which the defendant is convicted.

Finding no merit to the assignments of error, we affirm the conviction and sentence.

AFFIRMED.


author: PER CURIAM.

text:
    STATE of Louisiana v. Thomas BROWN, Jr.
    No. 58463.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On May 1,1975, the Orleans Parish Grand Jury indicted defendant, Thomas Brown, Jr., for the crime of aggravated rape, a violation of La.R.S. 14:42. He was convicted by a unanimous jury and sentenced to death, the penalty then required by law.

We have reviewed the single assignment of error urged by defendant on appeal and find it to be without merit. Defendant complains of the trial court’s refusal to order extended pre-trial discovery. The decisions of this Court holding that a defendant is not entitled to the requested information are legion. He is entitled to know what the State intends to prove but not the evidence to be used. See, State v. Hunter, 340 So.2d 226 (La.1976); State v. Huizar, 332 So.2d 449 (La.1976); State v. Jones, 332 So.2d 267 (La.1976); State v. Ball, 328 So.2d 81 (La.1976); State v. Chase, 327 So.2d 391 (La.1976). Furthermore, the case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) is not apposite here because defendant has neither alleged nor shown that the information and evidence sought were favorable to the defense. State v. Edgecombe, 275 So.2d 740 (La.1973). A discussion of defendant’s individual requests would neither clarify our holding nor contribute to the jurisprudence and consequently we have decided to accord them only summary treatment in this opinion. See, State v. Duhon, 340 So.2d 151 (La.1976).

However, the death penalty imposed must be annulled and set aside in accordance with the decisions of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) and Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 50 L.Ed.2d 1212 (1976).

The case must be remanded for resen-tencing of defendant to the most serious penalty for a lesser included offense at the time the crime was committed (February 23, 1975). State v. Lee, 340 So.2d 180 (La.1976), State v. Craig, 340 So.2d 191 (La.1976); State v. Watkins, 340 So.2d 235 (La.1976); State v. Sledge, 340 So.2d 205 (La.1976). At that time, attempted aggravated rape was punishable by imprisonment at hard labor for not more than twenty years, La.R.S. 14:27(D)(1), and simple rape was punishable by imprisonment at hard labor for not less than one nor more than twenty years, La.R.S. 14:43. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor. Thus, we direct the trial court on remand to sentence defendant to imprisonment at hard labor for a period of twenty years.

Accordingly, the conviction is affirmed and the case is remanded for resentencing.


text:
    STATE of Louisiana v. Leonard BROWN.
    No. 58482.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Initially, we note that we have reviewed the entire record in this case and we find no errors discoverable by mere inspection of the pleadings and proceeding. We, therefore, will limit our discussion to the error assigned by defendant and designated assignment number one. In this assignment defendant contends that the trial court erred in failing to grant his motion to suppress. Defendant argues that the police officers did not have probable cause to arrest him and that the evidence (three red and blue capsules of Tuinal, a barbiturate) obtained incident thereto should have been suppressed. He relies principally upon this Court’s decision in State v. Saia, 302 So.2d 869 (La.1974).

We have reviewed the record and we find that defendant’s reliance on the Saia case is misplaced. That case is distinguishable from the situation presented here. A case which we deem similar to this case is State v. Cook, 332 So.2d 760 (La.1976). We conclude that the officers had reason to approach this defendant, whom they knew to be an admitted narcotics user, when they observed him looking suspiciously over his shoulder at the police vehicle and then saw him place his hand in his pocket, causing the police officers to believe that he was about to dispose of something. When the officers, as they were approaching defendant after alighting from the police vehicle, observed him put a small, shiny object to his mouth which resembled the usual packaging of drugs, they then had probable cause to arrest him.

We, therefore, find the assignment is without merit. Accordingly, we affirm the conviction and sentence.