author: SANDERS, Chief Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. James E. BADON and Herman M. Thomas.
    No. 58009.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      Craig J. Cimo, Gretna, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Gretna, Abbott J. Reeves, Director, Research and Appeals Division, Metairie, for plaintiff-appellee.
   SANDERS, Chief Justice.

The defendants, James E. Badon and Herman M. Thomas, were charged under LSA-R.S. 14:64 with the armed robbery of Clifton Rivet. On February 25, 1975, their trial ended in a hung jury. A second trial was held, but it too ended in a mistrial. Finally, on June 18,1975, a jury returned a unanimous verdict of guilty as charged as to both defendants. James Badon was sentenced to thirty-three years imprisonment under the provisions of the Louisiana Habitual Offender Law, LSA-R.S. 15:529.1. The court sentenced Herman Thomas to ten years imprisonment at hard labor.

The defendants appeal from these convictions and sentences.

ASSIGNMENT OF ERROR NO. 1 (Badon) ASSIGNMENT OF ERROR NO. 2 (Thomas)

Both defendants assign as error the procedure used by the trial judge during the voir dire examination whereby he explained to prospective jurors certain legal concepts later included in the judge’s general charge. The defense asserts that these remarks constituted a premature charge of the law by the judge, and as such deviated from the normal order of trial as prescribed by Louisiana Code of Criminal Procedure Article 765.

In his Per Curiam, the trial judge explained his procedure as follows:

“Article 786 of the Code of Criminal Procedure directs itself to the examination of jurors upon voir dire. It reads in part:
The Court, the State, and the defendant shall have the right to examine prospective jurors. The scope of the examination shall be within the discretion of the Court.
“Thus, the voir dire examination is a joint undertaking of the Court, District Attorney and defense counsel. It is designed to discover bases for challenges for cause (and to secure information for an intelligent exercise of peremptory challenges) State v. Sheppard, 1972, [263 La. 379], 268 So.2d 590. One of the bases for challenging a juror for cause is that the juror will not accept the law as given to him by the Court. C.Cr.P. Art. 797(4).
“It is the opinion of this Court that in order to determine whether or not a juror will accept and apply the law as given by the Court it is necessary to inform the jury on certain general principles of law which are applicable to all criminal trials. Thus the Court instructed the jury panel, among other points, as to the presumption of innocence, proof of guilt beyond a reasonable doubt, and the filing of a bill of information is not to be considered evidence, and as to the defendant’s right against self-incrimination.”

In light of these reasons, we find no abuse of the trial court’s discretion in the preliminary explanation of the basic legal concepts to the prospective jurors.

ASSIGNMENT OF ERROR NO. 2 (Badon) ASSIGNMENT OF ERROR NO. 3 (Thomas)

This assignment of error is concerned with the propriety of the court’s denying defendant’s motion for a mistrial. Both defendants base their motions on the fact that 52V2% of the total number of jurors subpoenaed did not appear. They aver that due to this high rate of absenteeism, they were denied a trial by a fair cross section of the community, and thus were deprived of a fair and impartial trial as required by the Sixth and Fourteen Amendments to the United States Constitution.

When the defense’s allegations of prejudice caused by the absenteeism is not substantiated by any evidence proffered as proof of that fact, the court’s denial of the motion for a mistrial is not error. State v. Bluain, La., 315 So.2d 749 (1975); State v. Elie, 257 La. 130, 241 So.2d 515 (1970); State v. Ceaser, 249 La. 435, 187 So.2d 432 (1966).

In State v. Dallao, 187 La. 392, 175 So. 4 (1937), U.S. cert. denied 302 U.S. 635, 58 S.Ct. 51, 82 L.Ed. 494 (1937), this Court set forth the controlling principles as follows:

“The law presumes the legality of an array or a venire and he who asserts the contrary must prove it. State v. Gonsoulin, 38 La.Ann. 459; State v. West, 116 La. 626, 40 So. 920; State v. Bussa, 176 La. 87, 145 So. 276. No proof was offered by defendants to rebut this presumption. The mere circumstances that fifteen veniremen were unavailable for the trial of defendants is not sufficient to overcome the presumption that they were competent jurors when their names were placed in the jury wheel perhaps many months before.
“In the trial of every criminal case, the nonattendance of some of the veniremen for unforeseen causes is to be expected. It is something that no human foresight can provide against, but it can never become serious, unless it can be shown that fraud has been committed or that a wrong has been worked on the defendant. Such is not the case here.”

Based on these principles, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3 (Badon) ASSIGNMENT OF ERROR NO. 4 (Thomas)

Through this assignment of error the defendants direct the Court’s attention to the trial court’s refusal to give a special charge submitted by the defense, explaining to the jury that they are not required to reach any one of the responsive verdicts given, and that if they failed to do so, this would result in a hung jury and a mistrial.

Louisiana Code of Criminal Procedure Article 807 mandates the court to give a special charge if it is wholly correct, pertinent, and does not require qualification, limitation, or explanation. There is, however, an exception built into the article which states:

“It need not be given if it is included in the general charge or in another special charge to be given.”

Although the court’s general charge omitted an explanation of the consequences of a hung jury, the jury was instructed that each juror has the obligation to arrive at and adhere to a verdict which squares with his conscience, and that this verdict should not be abandoned simply because he was outnumbered by other jurors entertaining a contrary opinion. A review of the general charge and the submitted special charge satisfies us that the proposed jury instructions were adequately included in the general charge. This holding follows the decisions in State v. Ross, La., 320 So.2d 177 (1975) and State v. Williams, La., 310 So.2d 528 (1975), both of which rejected similar proposed charges in light of the general charges given.

ASSIGNMENT OF ERROR NO. 4 (Badon)

Prior to the close of defense’s case, Badon’s counsel moved for a mistrial on the ground that a key defense alibi witness who had been timely subpoenaed could not attend the trial due to his alleged hospitalization. (No evidence was brought forth to prove if he was in fact confined to a hospital or if he was even ill.) The authority relied on is Louisiana Code of Criminal Procedure Article 775 which permits a mistrial to be ordered when

“(5) It is physically impossible to proceed with the trial in conformity with law;”

It is thus asserted that to conduct this trial in compliance with the law would be impossible in that the defendant would be denied his Sixth Amendment right to compulsory process.

Defense counsel makes much of the fact that the State was granted a mistrial on a prior occasion, because one of its crucial witnesses was unable to attend trial due to illness. In denying the motion the judge distinguished the factual circumstances in each instance. When the prior mistrial was granted, the jury had not yet been impan-elled nor had any testimony been taken, whereas, the motion here was made minutes before the defense rested. Consideration was also given to the fact that this was the third attempt to have these defendants stand trial since twice previously mistrials had occurred. Of greater moment to the judge was the fact that he stood ready to grant a continuance until the following day in order to allow the defense the opportunity to produce the absent witness or to call someone from the hospital to verify the witness’ inability to appear. In his Per Curiam, the trial judge stated that he con-eluded the declaration of a mistrial would have been inappropriate, especially since the defendant refused to take advantage of his offer of a continuance. We agree.

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 5 (Badon) ASSIGNMENT OF ERROR NO. 6 (Thomas)

In these assignments of error, the defendants argue that prejudicial error was committed when the trial judge refused to grant the defense a mistrial, based on a violation of the witness-sequestration order. LSA-C.Cr.P. Art. 775.

The conduct complained of surfaced when, on the State’s rebuttal, testimony was elicited from the State’s witness that the sequestration order was violated. The testimony disclosed that this violation occurred after two of the State’s witnesses, Deputy Seur and Deputy Lee, left the courtroom under a sequestration order and Deputy Seur remarked to Deputy Lee that he remembered no one on the street at the time of the commission of the crime. Deputy Lee then remarked that he recalled this fact also. Both deputies subsequently testified that Joe Louis’s Bar was closed, that no lights were on, no cars in front, and no one standing outside the bar. This rebuttal testimony contradicted that of the alibi defense witness, Alberta Marks, who testified that she saw and spoke to both defendants on the side of Joe Louis’s Bar at the time in question. The rebuttal testimony had not been adduced at the previous trial.

It is well established that Louisiana Code of Criminal Procedure Article 764, providing for the exclusion and conduct of witnesses, vests discretion in the trial judge as to the disqualification of a witness when a sequestration order has been violated. State v. Batts, La., 324 So.2d 415 (1975); State v. Holmes, La., 305 So.2d 409 (1974); State v. McKinney, La., 302 So.2d 917 (1974); State v. Bradford, La., 298 So.2d 781 (1974); State v. Browning, La., 290 So.2d 322 (1974); State v. Lewis, La., 288 So.2d 324 (1974).

In State v. Raymond, 258 La. 1, 245 So.2d 335 (1971), this Court defined the purpose of Article 764 as follows:

“The purpose of this Article is to prevent witnesses from being influenced by the testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts.”

Both officers who violated the order stated that their testimony was from their own memory. The cross-examination was thorough and disclosed no indication of collusion or fabrication.

We conclude that the trial judge did not abuse his discretion in allowing the officers to testify.

ASSIGNMENT OR ERROR NO. 6 (Badon) ASSIGNMENT OF ERROR NO. 1 (Thomas)

Both defendants assign as error the court’s denial of their request to depose witnesses prior to trial. They assert that their right to confront witnesses and to have compulsory process for obtaining them as guaranteed by the Sixth Amendment to the United States Constitution and Article 1,- Section 16 of the Louisiana State Constitution was abridged.

The identical issue was raised by the defendant in State v. Morgan, La., 315 So.2d 632 (1975). There, the Court held that the confrontation secured to all defendants by the constitution is confrontation at the trial, itself, and not prior thereto. See also State v. Whitsell, 262 La. 165, 262 So.2d 509 (1972); State v. Wright, 254 La. 521, 225 So.2d 201 (1969).

ASSIGNMENT OF ERROR NO. 7 (Badon) ASSIGNMENT OR ERROR NO. 9 (Thomas)

The thrust of this assignment is that the judge’s ruling which allowed the two prosecution witnesses who violated the sequestration order to testify was prejudicial error, and as such a new trial should be afforded the defendants as provided in Louisiana Code of Criminal Procedure Article 851(2).

For the reasons outlined in Assignment of Error No. 5 (Badon)/Assignment of Error No. 6 (Thomas), we find this contention to be devoid of merit.

ASSIGNMENT OF ERROR NO. 8 (Badon)

Defendant Badon was sentenced to a term of thirty-three years in the Louisiana State Penitentiary under the provisions of the habitual offender statute, LSA-R.S. 15:529.1. At the time of sentencing his counsel objected, challenging the constitutionality of that statute and asserting that the statute denies the defendant equal protection and due process.

His constitutional argument rests on the discretionary power given the District Attorney by which he decides whether or not to invoke the provisions of the habitual offender statute. This argument was explicitly rejected in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). The United States Supreme Court stated:

“Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, of other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks [213 Or. 619, 325 P.2d 794 (1958)]; cf. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (by implication).”

That decision is dispositive here.

Counsel also avers that by imposing additional punishment on one previously convicted of another offense is in effect punishing a status, and therefore constitutes cruel and unusual punishment.

In State v. Williams, La., 322 So.2d 177 (1975), this Court rejected an identical contention, stating:

“There is no substance to this argument. Habitual offender statutes have survived constitutional attack so often that their validity is no longer a matter of serious doubt. See McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901). The constitutionality of La.R.S. 15:529.1 has been upheld by this court several times. It is well established that the law does not make it a crime to be a multiple offender; it merely prescribes an enhanced penalty for multiple offenders. As an enhancement-of-penalty provision, the statute does not punish a status, nor does it impose cruel and unusual punishment. See State ex rel. Williams v. Henderson, 289 So.2d 74 (La. 1974); State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), rev’d on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Guidry, 169 La. 215, 124 So. 832 (1929). See also Price v. Allgood, 369 F.2d 376 (5th Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349 (1967).”
See also State v. Bullock, La., 329 So.2d 733 (1976).

The defendant further alleges that Section C of the statute does not adequately set forth how long a person is to be classified as a habitual offender. LSA-R.S. 15:529.1(C) provides:

“C. This Section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods.”

The defendant specifically argues that the statute is ambiguous in that it does not clearly indicate at which point the five year period is to begin and end.

In State v. Broussard, 213 La. 338, 34 So.2d 883 (1948), we construed this section as using as measuring posts for the five year term the interval

“. . . between the expiration of the sentence imposed for the last previous felony conviction and the date of the commission of the latest felony.”

Finally, the defendant charges that the habitual offender statute deprives the judge of control over the sentencing. In State v. Ugarte, 176 La. 54, 145 So. 266 (1933), this Court rejected this contention.

ASSIGNMENT OF ERROR NO. 7 (Thomas)

Counsel for the defendant Thomas cites as error the refusal by the trial judge to grant his Motion for a New Trial. This motion was based on the identical arguments urged in his second and third assignments of error. Since we have found these contentions to be without merit, the lower court correctly denied a new trial.

ASSIGNMENT OF ERROR NO. 8 (Thomas)

Before sentence was pronounced, the defendant Thomas filed a Motion in Arrest of Judgment. As a basis for it, his counsel points to the same issues raised in his third assignment of error. Because this argument has been previously rejected, we find it unnecessary to consider the motion.

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

DENNIS, J., concurs, although disagreeing with the treatment of assignments Nos. 5 (Badon) and 6 (Thomas).

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice

(dissenting).

Defendant Badon and Thomas argue, in assignment of error number five (Badon) and assignment of error number six (Thomas), that the trial judge committed prejudicial error in refusing to grant a mistrial on the ground that the state’s two deputy sheriffs who gave testimony to rebut the defendants’ alibi witness had violated the court’s sequestration order by discussing their testimony before taking the stand. I believe that the judge’s decision was in error, and that this Court has mistakenly affirmed defendants’ convictions.

Deputies Lee and Suer had investigated the scene of the crime and testified earlier in the trial as to their investigation. When each left the stand, he was told he was still sequestered and that he was to talk about the case with no one. These same two deputies were recalled by the state on rebuttal, whereupon each testified for the first time that he had several times, on the night of the crime, passed the bar where the defendants were allegedly playing dice at the time of the crime, and that the bar was closed. Both officers testified that there were no automobiles or people in front of the bar, and that they remembered that the lights were off. On cross-examination it was revealed that the two deputies had discussed between themselves the testimony that they were about to give before coming to the stand on rebuttal, and that they agreed (presumably after reminding each other) that no people were on the street in front of the bar, and that it was closed.

Although both deputies had testified at defendants’ first trial which resulted in a hung jury, neither testified to this effect at the previous trial. Nor, evidently, was this information part of their police report. Thus, when the two deputies testified on rebuttal that the bar in question was closed, they were testifying wholly from memory as to observations made many months before, and discussed between themselves in violation of a sequestration order.

I believe that the trial judge abused his discretion when, under these circumstances, he refused to grant the defense-requested mistrial, and I believe that defendants Ba-don and Thomas are due a new trial which does not include the two officers’ damaging, agreed-upon testimony.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Michael A. WILLIAMS.
    No. 58035.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 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., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On the evening of December 28, 1973 in New Orleans, Louisiana, a man approached Joseph King, who was walking with his wife Kay, and shot at him, hitting him twice. King died, and his wife identified Michael Williams as the man who killed her husband. Williams was charged with second degree murder, tried by jury in April of 1974, found guilty as charged, and sentenced to life imprisonment without benefit of parole, probation, or commutation of sentence for twenty years. Williams now appeals that conviction and sentence, relying on four assignments of error.

ASSIGNMENT OF ERROR NO. 3.

Defendant alleges that the testimony of the state’s expert witness, Dr. George Bailey, that the victim died of the bullet wound in his chest rather than the one in his buttock, should not have been allowed into evidence because the best evidence of the cause of death was the autopsy report. R.S. 15:436. Dr. Bailey, who is an assistant coroner for Orleans Parish, examined the victim at the scene of the crime and pronounced him dead. He did not perform the autopsy.

Dr. Bailey was qualified as a medical expert and accepted as such by the defendant and the court. La.R.S. 15:466. He offered his opinion as an expert that the victim, whom he had examined, died from a particular gunshot wound. Although the autopsy report, which was later introduced into evidence by the state, was also competent evidence of the cause of death, it was not the only evidence the state could offer as to the cause of death. See State v. White, 321 So.2d 491 (La.1975); State v. Sneed, 316 So.2d 372 (La.1975). The best evidence rule, urged as controlling by defendant, requires the production of an original writing which is within a party’s control in order to prove its contents. 21 Loy.L. Rev. 450 (1975); McCormick, Law of Evidence § 196, at 409 (Hornbook ed. 1954). That rule does not apply in a case such as this one where the nature of the testimony was opinion evidence as to the cause of death.

The assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4.

Defendant Williams contends the trial court erred when, over his objection, it admitted four photographs of the deceased’s body as it was found at the scene of the crime.

The photographs are black and white representations of the victim’s body. They depict the victim lying on the sidewalk where he was shot. Each of the four photographs shows him from .a different angle; each shows blood on the victim and sidewalk.

The test of admissibility of photographs in Louisiana criminal trials is whether the probative value of the photographs outweighs their probable prejudical effect. State v. Smith, 327 So.2d 355 (La.1976). Measured against this standard, we find that the photographs were admissible. The testimony which preceded the introduction of these photographs indicated that they were used by the state’s witnesses to identify the victim. Dr. Bailey testified that he examined the person in the pictures and pronounced him dead; Mrs. Kay King identified the victim as her husband.

Furthermore, the photographs could have had little or no prejudicial effect. They are black and white photographs portraying a man, fully clothed, lying on the sidewalk without gaping wounds or protruding organs. Although a dead persons’ picture is always unpleasant viewing for a person unaccustomed to such pictures, these four pictures contain nothing which could have inflamed or prejudiced the jury.

We find that the four photographs were admissible at trial.

ASSIGNMENT OF ERROR NO. 7.

Defendant assigns as error the trial judge’s denial of his request for two special jury charges, one relative to the impeachment of witnesses and the other relative to the role of attorneys in objecting to evidence.

The requested instructions were these:

IMPEACHMENT OF WITNESS
A witness may be discredited or impeached by contradictory evidence; or by evidence that at some other time the witness has said or done something or has failed to say or do something, which is inconsistent with the witness’ present testimony; or by evidence that the witness has been convicted of a crime; or by evidence that the general reputation of the witness for truth or for moral character is bad in the community where the witness now resides, or has recently resided.
If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.
When impeaching, evidence is received, such evidence must not be considered as proof of defendant’s guilt, but is to be considered only for impeachment purposes.
The only value of impeachment by pri- or inconsistent statement is to discredit the courtroom testimony of the witness. A prior statement made by the witness has no probative value. This evidence is not admitted for the proof of the facts contained in or truth of the statement, but only to prove that a statement at some prior time is inconsistent or contrary to the one made on the witness stand in court. You may consider it only for the purpose of weighing the credibility of the witness. No part of it can be used as substantive evidence.
OBJECTIONS
It is the duty of the attorney on each side of a case to object when the other side offers testimony or other evidence which the attorney believes is not properly admissible. Upon allowing testimony or other evidence to be introduced over the objection of an attorney, the Court does not, unless expressly stated, indicate any opinion as to the weight or effect of such evidence. As stated before, the jurors are the sole judges of the credibility of all witnesses, and the weight and effect of all the evidence. When the Court has sustained an objection to a question, addressed to a witness, the jury must disregard the question entirely and may draw no inference from the wording of it, or speculate as to what the witness would have said if permitted to answer any question.

Article 807 of the Louisiana Code of Criminal Procedure governs the duty of the trial judge to give special charges requested by the parties. It provides in pertinent part that:

A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

The requested charge on impeachment of witnesses was not pertinent to the case at hand because at no point in the trial was any evidence admitted for the purpose of impeaching the credibility of any witness. Therefore, there was no requirement that the trial judge inform the jury that prior inconsistent statements are admissible only on the issue of a witness’ credibility, and not as substantive evidence of a defendant’s guilt.

With reference to the second charge, the trial judge did not err in refusing to instruct the jury in the manner requested because the jury was sufficiently instructed in the general charge that it was to base its verdict only on the evidence. The trial judge instructed the jury as follows:

You are prohibited by law and your oath from going beyond the evidence to seek for doubts upon which to acquit the accused, but must confine yourselves strictly to a dispassionate consideration of the testimony upon the trial. You must not resort to extraneous facts or circumstances in reaching your verdict . . .
You are to be governed exclusively by the evidence and the law as heard by you in this court .
You are the exclusive judges of the facts. You find from the evidence what facts have been proven, and what facts have not been proven. For this purpose, you are the sole judges of the credibility of the witnesses and the weight to be given their testimony. You are to give that degree of credence to the testimony of a witness as you are impressed by his or her veracity.
In determining the credibility of witnesses, you may take into account his or her manner on the witness stand, the probability or improbability of his or her statement, the interest or want of interest he or she may have in the case, and every fact and circumstance surrounding the giving of his or her testimony which may aid you in weighing his or her statement.
If you believe that any witness in the ease, either for the State or the defense, has willfully and deliberately testified falsely to any material fact for the purpose of deceiving you, then I charge you that you are justified in disregarding the entire testimony of such witness as proving nothing or unworthy of belief. You have the right to accept as true, or reject as false, the testimony of any witness accordingly as you are impressed with his or her veracity.

In these instructions, the trial judge repeatedly cautioned the jurors that they were to base their verdict only on the evidence and made it clear that only the jurors judge the credibility of witnesses. These general instructions covered the substance of the special charge on attorneys’ objections which defendant had requested.

The trial judge’s rulings refusing to give defendant’s special charges were correct.

ASSIGNMENT OF ERROR NO. 8.

Defendant Williams contends the trial court committed reversible error when it denied his motion for a new trial which was based on his claim that the state allowed a key witness (Kay King) to give false and misleading testimony to the jury on matters that bore directly and indirectly on the issue of defendant’s guilt and her credibility. Further, defendant claimed that the state withheld facts and information which were favorable to the defendant notwithstanding that they had been ordered, pre-trial, to disclose any such Brady materials. In particular, defendant alleged that the state did not advise defendant that several months before the instant trial, it had nolle prose-quied a burglary charge against the key witness Kay King.

The state’s case against defendant Williams consisted of testimony by Dr. Bailey who established the corpus delicti and the cause of death; testimony by the detective who investigated the crime and arrested the defendant; and testimony by Mrs. Kay King, wife of the victim. Mrs. King identified the defendant as the murderer; her testimony was critical to the state’s case. Only her identification linked defendant Williams to the shooting. Thus, Mrs. King’s credibility was a crucial aspect of the state’s case.

Under cross-examination, Mrs. King was questioned as follows:

Q. On the evening that this occurred, had you been — had you had anything to drink that evening?
A. No.
Q. Had you had any narcotics within a few hours of that time?
A. No.
Q. Had you had any methadone within a short — within a few hours of the time that this happened?
A. No.
Q. You do take those drugs, don’t you, Mrs. King?
A. No, I don’t.
Q. You don’t?
A. I don’t.
Q. Never?
A. I didn’t say, “never”; but I don't. Q. How about today, Mrs. King?
A. No.
Q. You didn’t take any methadone before you came here?
A. I didn’t take anything before I came here. ‘
* * * * *
Q. Do you know a man by the name of Robert Williams?
A. I don’t know. Does he have an alias? Is there an alias?
Q. Do you know a Robert Williams whose address is in the seventeen hundred block of Washington Avenue?
A. No. I don’t know Robert Williams in the seventeen hundred block of Washington Avenue.
Q. Do you recall being in Court on March 19th of this year?
A. Yes, I do.
Q. Were in Court with a Robert Williams on that date?
MR. VOLTZ:
I’m sorry. What was that question, Your Honor?
MR. RAKOSKY:
Was she in Court with a Robert Williams on that date?
THE WITNESS:
Yes.

EXAMINATION BY MR. RAKOSKY:

Q. That wasn’t in connection with this case, was it?
A. No, it wasn’t.

The trial court conducted a hearing on the new trial motion at which it was revealed that Mrs. King had been enrolled in a methadone clinic at the time the shooting occurred. Moreover, it was shown, as alleged, that a burglary charge against her had been nolle prosequied several months before defendant Williams’ trial. At the hearing, Robert Early, an Orleans Parish Assistant District Attorney, testified that, pursuant to a request by the court and defense counsel subsequent to the trial, he had inquired with the methadone clinic to determine whether Mrs. King had ever been a patient there. He learned that she had been a patient at the clinic for about eighteen months, but had not been at the clinic on April 30, the date of the trial, nor did she come any of the days from April 25th through the first of May. He was not asked, nor did he say, whether she had received her daily dose of methadone on the day that her husband was shot (although ■ her period of methadone treatment included the date of the shooting).

Mr. Early also testified that a few months before the trial he had nolle prose-quied a burglary charge against Mrs. King for simple burglary of Robert Williams’ home. He was never asked if this action was pursuant .to an agreement between the prosecutor’s office and Mrs. King that she would testify against defendant Williams if the non-related burglary charge were dropped, and there is nothing else in the record to indicate that Mrs. King agreed to testify in response to favorable treatment by the state.

When a key witness testifies because of an agreement struck between a prosecutor and the witness, that information must be revealed to the defendant. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Carney, 334 So.2d 415 (La.1976). And if a prosecutor allows a state witness to give false testimony without correction, a conviction gained as a result of that perjured testimony must be reversed, even though the testimony may be relevant only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).

In the case now before us, it was neither alleged nor shown that the prosecutor’s action in nolle prosequing the burglary charge against Mrs. King was negotiated in exchange for her testimony nor that she was otherwise promised anything. Indeed, there is no evidence that there was any relationship at all between the nolle prose-qui and the witness’ testimony. The fact that an unrelated charge has been dropped against a state witness, standing alone, does not offend defendant’s right to due process, and, absent the additional showing that her testimony was bargained for, does not violate the proscription set down in Giglio and Brady.

Defendant further alleges that the state allowed Mrs. King to testify falsely when she answered questions concerning her use of methadone and when she allegedly denied knowing one Robert Williams. It was not clearly shown that Mrs. King lied (as opposed to employing a mental reservation) when she answered the prosecutor’s question as to drug use. She did answer “No, I don’t” when asked if she took “those drugs,” an apparent reference to methadone, but when pressed she said “I didn’t say ‘never’; but I don’t.” She denied at trial having taken methadone or “anything” on the day she testified at trial, and this was corroborated at the hearing on the motion by the testimony presented. Indeed she had not appeared at the methadone clinic for her daily dosage on the day of the trial. She was not questioned at the trial about whether she had ever taken drugs. Even if we concede that her responses in this regard were untruthful, there was no showing that the prosecutor knew that was the case. Furthermore, there was no showing that the prosecutor at the time of trial knew that the witness was a patient at the methadone clinic.

With respect to the witness’ acquaintance with Robert Williams, at trial she misled no one, for she candidly admitted having been in court with Robert Williams on March 19th on an unrelated matter. Her testimony, therefore, was not false testimony which the state allowed to go uncorrected, violating the proscriptions of Napue and Alcorta.

Therefore, we find that defendant Williams’ right to a fair trial was not violated by the testimony of Mrs. King, and that the district court correctly denied defendant’s motion for a new trial.

While there is no merit to any of defendant’s assignments of error, it is apparent that the sentence imposed, life imprisonment without benefit of parole, probation or commutation of sentence for twenty years, is improper. Gubernatorial pardon or commutation, constitutionally permitted, may not be precluded by the terms of an imposed sentence. La.Const. art. IV, § 5 (1974); State v. Varice, 292 So.2d 703 (La.1974).

For the reasons stated above, defendant’s conviction is affirmed, but his sentence is vacated and set aside. The case is remanded for resentencing in accordance with the foregoing.

      . Although defendant perfected eight assignments, only four of these have been briefed by counsel so that the other four are deemed abandoned. State v. Domingue, 298 So.2d 723 (La. 1974).

      . We are not unaware of that jurisprudence which applies the best evidence rule to evidence other than writings. State v. Square, 257 La. 743, 244 So.2d 200 (1971); State v. McCrory, 237 La. 747, 112 So.2d 432 (1959). But see State v. Fallon, 290 So.2d 273 (La. 1974).

      . The motion for new trial raised a second issue, the composition of the grand jury which returned the indictment against defendant Williams, but no testimony was given on this ground at the hearing on the motion for new trial, and it was not argued in defendant’s brief.


author: SUMMERS, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Charles Thomas MILLER.
    No. 58036.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      Jerry A. Kirby, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

The question on this appeal is whether the trial judge erred in refusing to charge the jury on the law relating to the defense of justification as contained in Articles 18(6), 19 and 20 of the Criminal Code, particularly Articles 18(6) and 19. These articles provide:

“The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
“(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed. . . .” La.Crim.Code art. 18(6).
“The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the'person or a forcible offense or trespass against the property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.” La.Code Crim.Pro. art. 19.
“A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or
(2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.” La.Code Crim.Pro. art. 20.

In refusing to charge the jury on these articles on justification the trial judge gave these reasons in his per curiam:

“There was no evidence or suggestion of fact which could possibly bring into application any part of Articles 18, 19 or 20 of the Criminal Code. It was not defendant’s contention that he attempted to kill in self-defense or was resisting force. He admitted instigating the entire episode and, even though he had seen a man come out of the house with a gun, he admitted not knowing where the man was at the time he fired. His defense was not self-defense, but merely that he did not intend to shoot at anyone. His ‘justification’ for firing his weapon was not a legal excuse for conduct otherwise criminal, but merely a denial of intent to harm. No facts in evidence related in any way to any circumstances provided for by the articles cited.”

By Article 802 of the Code of Criminal Procedure the court “shall charge the jury” “as to the law applicable to the case.” The general language of this article makes all - questions of law applicable to a case mandatory charges to be given by the judge to the jury. This provision has been interpreted to require the trial judge to charge as to each and every phase of the case arguably supported by the evidence, whether believed by the judge or not. State v. Lentz, 306 So.2d 683 (La.1975); State v. Montablano, 257 La. 884, 244 So.2d 820 (1971); State v. Youngblood, 235 La. 1087, 106 So.2d 689 (1958).

A requested special charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La.Code Crim.Pro. art. 807.

Whether the requested charge is wholly correct and pertinent requires an examination of the evidence and the contentions raised at the trial.

Defendant Charles Thomas Miller was charged by bill of information with attempted second degree murder of his wife Pamela Ann Miller. La.R.S. 14:27; La.R.S. 14:30.1. A twelve man jury returned a ten-to-two verdict finding the defendant guilty of the lesser, included offense of attempted manslaughter. Upon this verdict, Miller was sentenced to ten years at hard labor.

On the night of November 9,1975 Pamela Ann Miller, the estranged wife of defendant Charles Thomas Miller, was visiting at the Kelly home on Prairie Road near the city of Monroe. She was sitting in a truck with Ronnie Kelly talking and listening to the radio. While she was so engaged defendant approached the truck and thrust a .12 gauge shotgun through the window. As he commanded “don’t scream” she and Ronnie fell to the truck floor. Charles then pointed the gun at Pamela’s back, opened the truck door and again tried to silence Pamela, who was screaming, and Ronnie, who was sounding the truck horn to summon help.

At that time Mrs. Kelly, Ronnie’s mother, and Pamela’s sister Sharon, the wife of Stephen Kelly, emerged from the nearby house and approached the truck. When they came within eight feet of the truck, defendant pointed the gun at Mrs. Kelly and told her not to come closer or he would “blow her brains out.” Mrs. Kelly nevertheless sought to importune Charles to desist in his rash conduct, and he again threatened to kill her.

In the meantime Sharon ran to the house to get Stephen, her husband, and to tele-’ phone “the law”. When Stephen emerged from the house with a .20 gauge’ shotgun, Charles shouted, “Stephen if you come out here, I will shoot your mother. I will kill your mother.” Charles then compelled Ronnie, at gunpoint, to get out of the truck and made Pamela sit on the floor. Charles then got into the truck, all the while shouting to those present not to come near the truck, threatening to kill Pamela if they did.

While this was transpiring, Sharon had returned to the scene. As Charles tried to back the truck out, she jerked the door open on the passenger side and Ronnie grabbed Pamela and pulled her out of the truck, hollering “You all run”, and they all did, crouching and retreating to a point near the house. As they reached the house a shot rang out and they “hit the ground”, the shot shattering the brick on the house above them.

According to the testimony of Ronnie, except for his appearance as he came out of the house, Stephen was not seen by him thereafter until after the shot was fired. He did not know where Stephen was immediately prior to the shooting.

Stephen testified that when he came out of the house and Charles told him not to come closer or he would kill Stephen’s mother he stopped right there. When Charles again turned his attention to those around the truck, Stephen walked around to the back of a car parked near the house and stood there. He was in that position as Pamela, Ronnie, Sharon and Mrs. Kelly passed within 25 feet of him in their retreat toward the house. They were about 30 feet from him when the shot was fired. Stephen saw Charles get out of the truck, start away from the fleeing group and, after walking 8 or 10 feet, he wheeled around and fired at them, striking the brick wall of the house above their heads. He then reloaded the gun and disappeared, running around the corner of a nearby building where his car was parked.

Charles Miller testified in his own behalf. His version of the facts was essentially that which is recited in the above narrative. He testified, however, that while he was starting the truck and when he put it in reverse to back out he saw Stephen with a gun, which he thought was a rifle. Despite his threats, Mrs. Kelly had approached the truck from the driver’s side and as she spoke to him, Ronnie and Sharon were pulling Pamela from the other side of the truck. He therefore stopped the truck, grabbed his shotgun and opened the door. As he started to run, he thought that he was directly in Stephen’s view. He could not at that moment see where Pamela, Ronnie and Sharon were. They were running on the other side of the truck from which he had just emerged. When he heard Ronnie yell “run” he too started to run. After going approximately eight feet he realized he had to run under a nearby street light to reach his car, and that Stephen had a rifle and a clear view of the path he must take. So he turned and fired to make Stephen duck “so he wouldn’t shoot me as I ran under this light.” When asked what were his intentions when he shot, he said:

“To scare Stephen Kelly so he would have to duck so he wouldn’t shoot me when I ran under the light because I knew that he had a straight — he was looking right at me as I was running with my back toward him and I knew that if I ran under the light he had a good minute maybe to shoot me or more — shoot me in the back as I was running.”

It is the defense contention that the quoted articles on justification support his argument that he fired the shot at Stephen Kelly merely to protect himself and that he had no intention to kill or commit grave bodily harm. There was evidence to this effect, the argument goes, and the trial judge improperly denied instructions on the law of justification and self-defense.

Aside from the evidence referred to above, the defense theory of the case, counsel asserts, is plainly expressed in the opening statement. There defense counsel stated that the evidence would show that Stephen Kelly came out of the house with a .20 gauge shotgun which defendant believed to be a high powered rifle in the limited night light. All defendant wanted to do by shooting was to keep Stephen Kelly down behind the car where he was so that defendant could safely cross the open lighted area through which he must retreat in order to gain refuge in his automobile. Therefore, he shot high, as the evidence shows, not to kill his wife but to protect himself by creating a diversion which would prevent Stephen Kelly from using his gun against defendant.

Prom the evidence and by reference to the opening statement of the defendant it is apparent that justification was a phase of the case arguably supported by the evidence, whether believed by the judge or not in accordance with the established jurisprudence of this Court. State v. Lentz, 306 So.2d 683 (La.1975); State v. Montablano, 257 La. 884, 244 So.2d 820 (1971); State v. Youngblood, 235 La. 1087, 106 So.2d 689 (1958).

In view of defendant’s conduct immediately preceding the shooting, his version of the shooting can be characterized as extremely doubtful. And this conclusion undoubtedly influenced the trial judge to deny the requested charge. However, the question is not what the judge believed the evidence proved, or even what view this Court has of the evidence. The question is, instead, what the jury would believe the evidence established if they had been instructed on the law of justification.

The requested instructions were not in writing as required by Article 807 of the Code of Criminal Procedure, and the entire charge of the trial judge is not in the record as required by the decisions of this Court holding that a complaint that the charge to the jury is deficient or improper cannot be considered by this Court unless the entire charge is made part of the record. State v. Jack, 285 So.2d 204 (La.1973) and authorities there. The trial judge has, however, acknowledged that the charge was in fact requested and that he refused to so instruct the jury. In addition, the prosecutor makes no issue of the fact that the request was not in writing or that the entire charge of the trial judge is not contained in the record. He, too, meets the issue in brief without reference to these deficiencies. These circumstances, we believe, amount to a waiver of these technical requirements by the trial judge and the prosecutor and a recognition that the issue is squarely presented.

Finding this issue merits reversal of defendant’s conviction and sentence, it is unnecessary to discuss the other assignments of error urged by the defense.

For the reasons assigned, the conviction and sentence are reversed and set aside, and defendant is granted a new trial.

SANDERS, C. J., dissents and assigns written reasons.

SANDERS, Chief Justice

(dissenting).

Article 807 of the Louisiana Code of Criminal Procedure requires that a requested special charge be in writing. Moreover, on appeal, the denial of a special charge cannot be considered if the general charge is not made part of the record. See State v. Jack, La., 285 So.2d 204 (1973) and the authorities cited. Contrary to the majority, I find no waiver of these requirements on the part of the State either in the record or brief. Hence, for basic procedural reasons alone, the ruling of the trial judge should be affirmed.

On the merits I am not prepared to say that the trial judge erred in rejecting the charge as inapplicable. The defendant testified that he did not know the location of Kelly when he fired the shot, that he fired only to frighten him, and that he had no intention of shooting anybody.

For the reasons assigned, I respectfully dissent.


text:
    STATE of Louisiana v. Mervin PAYNE.
    No. 58045.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      Vincent Wilkins, Jr., Appellate Counsel, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Mervin Payne was indicted, tried and convicted for the murder of his. wife, Betty Ruth Payne, in violation of La.R.S. 14:30. After selection of the jury at his trial, held in January 1970, defendant was permitted to withdraw a not guilty plea and enter a plea of not guilty and not guilty by reason of insanity. During the course of the trial defense counsel reserved four bills of exception. On appeal, however, these bills were not perfected and this Court in State y. Payne, 274 So.2d 693 (La.1973), limited defendant’s relief to an annulment of the death sentence which had been imposed, and instructed the trial judge to resentence the defendant to life imprisonment. On September 26, 1975, this Court, in response to defendant’s application for writs, authorized, out of time, a second appeal.

Defendant’s principal contention (included variously in assignments one, two and three) is that his mentally retarded condition, coupled with his limited ability to read and write, and the alleged failure of the interrogating officers to make a concerted effort to explain his rights to him, effectively precluded a knowing and intelligent waiver of his constitutional rights against self-incrimination, and to representation by counsel, so that the taped statement obtained by the officers and admitted over defense counsel’s objection was constitutionally impermissible, and made his conviction reversible.

In his first three assignments of error defendant urges that the trial court erred in admitting over defense counsel’s objection a tape recorded statement made by the accused in the presence of interrogating officers, and permitting it to be played by the jury. He contends he had not effectively waived his right to counsel. He argues that the state failed to meet its burden of proving beyond a reasonable doubt that the defendant knowingly and intelligently waived his rights.

Under Louisiana law it is clear that in order for a confession to be admissible, the trial judge must be satisfied that the confession was freely and voluntarily given and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451. The voluntariness of the confession must appear affirmatively on the record, and the state bears the burden of establishing it. La.C.Cr.P. art. 703(C); State v. Stewart, 325 So.2d 819 (La.1976); State v. Washington, 321 So.2d 763 (La.1975); State v. Carter, 248 La. 730, 181 So.2d 763 (1966).

Evidence adduced out of the presence of the jury, establishing the voluntariness of the confession and “rights waiver,” satisfied the trial judge beyond a reasonable doubt that defendant Payne’s confession was freely and voluntarily made. As the state points out in brief, the trial judge’s findings in this respect are, while not conclusive, entitled to “great weight” by this Court upon review. State v. Stewart, supra; State v. White, 321 So.2d 491 (La. 1975); State v. Peters, 315 So.2d 678 (La. 1975). According to Peters, the “reviewing court cannot [however] avoid its responsibility to examine the record to be certain that the State has fully borne its heavy burden of proof in these cases.” 315 So.2d at 681.

Despite defense counsel’s statement in brief that the record reveals the failure of the interrogating officers to make a concerted effort to have defendant comprehend clearly his rights under Miranda and the fifth and sixth amendments to the United States Constitution, the trial transcript supports a contrary conclusion. In the first place, the accused had turned himself in and indicated a desire to make a confession.

Further, testimony of the state’s witnesses and that of defendant Payne himself clearly shows that before questioning defendant, the interrogating officers expressly advised him of his Miranda rights, including his right to remain silent, his right to counsel, and his right to have counsel appointed for him. Defendant responded to a question by defense counsel regarding whether he understood his right to counsel, “yes, I believe I did.” He then added that he did not know he could get an attorney appointed for him until the officers told him that he could (which was prior to his giving the statement).

While the officers were aware of the defendant’s lack of formal education, they asked him particularly whether he understood the nature of the rights explained to him, and whether he wanted to waive them. Defendant indicated to them that he desired to waive his rights and signed the “rights of the accused waiver form.” He appeared in complete touch with reality and in control of himself, according to the officers. The transcript further reflects that the statement was not the product of threats, intimidation, promises, or inducements of any kind.

This Court has on occasion upset the determination of a trial judge that the state had met its burden of establishing that a defendant’s confession was made voluntarily because the state failed to rebut detailed evidence presented by the defendant that the confession was not made voluntarily. State v. Peters, supra; State v. Monroe, 305 So.2d 902 (La.1974); State v. Simien, 248 La. 323, 178 So.2d 266 (1965); State v. Honeycutt, 216 La. 610, 44 So.2d 313 (1950); State v. Robinson, 215 La. 974, 41 So.2d 848 (1949); State v. Scarbrough, 167 La. 484, 119 So. 523 (1928).

In this case, however, defendant Payne put forth no evidence which the state was required to rebut. In fact, Payne’s testimony was that he desired to waive his rights, and that there had been no threats, duress, or promises made to him.

Defendant, however, argues that defendant’s mental condition foreclosed a valid waiver despite the evidence on the record to the contrary. In his brief, counsel for the defendant relies on testimony by Dr. Chester A. Williams, Jr.,

(1) that four years prior to the charged crime, defendant was committed to East Louisiana State Hospital in Jackson, Louisiana suffering with a mental defect;
(2) that the accused was mentally retarded and that, while the defendant appeared “relatively normal mentally” at trial, this was because he was “on medication”;
(3) that in the doctor’s expert opinion, at the time of the commission of the offense
(a) he could distinguish between right and wrong, but it wouldn’t “make any difference to him where an essentially normal person, it would have an influence on him;” and
(b) he was not “completely disassociated from reality at that time, but I think under the extreme stress that he did not react in a normal manner.”

Defendant contends that this testimony establishes that at the time the confession and rights waiver were obtained the accused was incapable of making a knowing and intelligent waiver of his constitutional rights.

If a person is insane and thereby precluded from waiving his rights voluntarily and intelligently, his confession cannot be considered voluntary, and it cannot be admitted into evidence against him. Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In this case, however, the trial judge found the state’s evidence of defendant’s sanity and comprehension sufficient to establish beyond a reasonable doubt that defendant had the capacity and comprehension to voluntarily and knowingly waive his rights, a decision with which we do not disagree. Furthermore, defendant’s evidence, medical and lay, was directed towards defendant’s mental capacity not at the time defendant turned himself in and confessed, some hours after the incident, but rather at the time of commission of the murder. While separated in time by less than a day, the two incidents obviously presented different stress situations for defendant.

We do not choose to rely upon any procedural deficiency but we deem it worth noting that the trial court’s ruling to allow the statement came following evidence on the predicate, which included testimony only of the state’s witnesses and defendant. Dr. Williams was not presented to testify until the defendant put on his case. The trial court’s ruling, however, was correct, whether prior to his ruling the judge had been afforded the opportunity to consider Dr. Williams’ testimony or not.

Discounting the insanity argument because it was not established that defendant was insane at the time the statement was given, the question presented for our consideration is simply whether mental retardation (the degree of which in this case not being shown) and low intelligence quotient (also not precisely established) are alone sufficient to vitiate the ability of a defendant to knowingly, intelligently and voluntarily waive constitutional rights. We have previously answered this question in the negative. State v. Nicholas, 319 So.2d 361 (La.1975); State v. Edwards, 257 La. 707, 243 So.2d 806 (1971).

We find, therefore, that the statement made by defendant Payne to police officers was admissible at his trial because the state did establish that it was made voluntarily after Payne had knowingly and intelligently waived his rights.

In assignment of error number four defendant contends that the waiver of rights form which he signed is patently unconstitutional inasmuch as it is a form which the defendant had no part in formulating or drafting. Defendant contends that such participation on his part is essential to safeguard his rights under Miranda. The assignment has no merit. No language in Miranda v. Arizona, supra, nor any other decision of the United States Supreme Court or this Court suggests any such requirement.

For the foregoing reasons defendant’s conviction is affirmed.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Earnest C. BROWN.
    No. 58050.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Edward C. Keeton, Marrero, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Gretna, Abbott J. Reeves, Director, Regina C. Cooper, Research and Appeals Div., Metairie, for plaintiff-appellee.
   MARCUS, Justice.

Earnest C. Brown was charged by bill of information with having illegally distributed a controlled dangerous substance, to-wit: heroin, to a person under the age of eighteen, in violation of La.R.S. 40:981. After trial by jury, he was found guilty as charged and was sentenced to life imprisonment at hard labor. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

On the day fixed for trial, but prior to commencement thereof, the state was allowed to amend the bill of information as to the date of the offense charged from March 28, 1974, to March 27, 1974. Defendant concedes in brief that the amendment was properly made under the provisions of La. Code Crim.P. art. 487, as amended, La.Acts 1970, No. 679, § 1. Therefore, this court need only consider his contention that the trial court erred in failing to grant a one-day’s continuance requested pursuant to the state’s amendment.

La.Code Crim.P. art. 489 (1966) provides in pertinent part:

If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. .

The official revision comments addressed to this article by its redactors demonstrate that the purpose of the continuance is to protect the defendant against surprise and prejudice which might result from such an amendment. It is incumbent upon defendant to show in what respect his defense has been prejudiced by the amendment of the bill. State v. Royal, 255 La. 651, 232 So.2d 465 (1970).

In a case strikingly similar on its facts to the case at bar, we held that a mere allegation by defendant that his defense would be affected by the amendment of the bill of information does not constitute such a showing of prejudice as to render the trial judge’s refusal of a continuance reversible error. State v. Sharp, 321 So.2d 331 (La. 1975). In the instant case, as in Sharp, the defendant declined to respond to the trial judge’s queries as to the possibility of an .alibi defense and only insisted that his case would be prejudiced. Nor can the defendant claim unfair surprise. On March 28, 1974, the original date in the bill of information, the defendant had already been arrested and incarcerated for the offense charged, a fact of which the defendant must be held to have been fully aware. Hence, we find no showing of prejudice or surprise. The trial judge did not abuse his discretion in denying defendant’s motion for a continuance.

This assignment of error is without substance.

ASSIGNMENT OF ERROR NO. 2

After testimony of defense and prosecution witnesses at the hearing on the motion to suppress evidence, the trial judge ruled admissible the search warrant and supporting affidavit over defendant’s objection that he should be allowed to present further testimony. This ruling is assigned as error.

We note at the outset that the defendant failed to designate for inclusion in the record for appeal a full transcript of the hearing on the motion to suppress. However, the per curiam of the trial judge discloses that defendant had attempted to prove the nonexistence of a search warrant through testimony to the effect that a warrant was never shown to anyone at the time of the search. The per curiam also states that the state introduced testimony from the executing officers that a warrant had, in fact, been issued prior to the search. Moreover, the record shows that the judge presiding at the hearing on the motion to suppress had himself signed the warrant sought to be admitted. Defendant does not dispute these facts.

The trial judge is accorded much discretion in determining the credibility of witnesses at a hearing on a motion to suppress evidence. State v. Jones, 308 So.2d 790 (La.1975). In the absence of any claim by defendant that the additional testimony he wished to produce was other than cumulative or repetitive, we cannot say that the trial judge abused his discretion in admitting the documents in evidence based on the executing officers’ testimony and his own knowledge of the warrant’s issuance and without allowing further testimony. Hence, this assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 6

Defendant contends that the trial judge erred on two occasions by sustaining state objections to certain testimony on the ground of hearsay. Defendant argues that the presence of all out-of-court declarants and their availability for cross-examination operates to take an otherwise hearsay statement out of the rule against hearsay evidence announced in La.R.S. 15:434.

There is no merit to this contention. In the first instance (Assignment of Error No. 5), Lonnie Everett, a state witness, had testified on direct examination that he was present at defendant Brown’s home on March 27, 1974 when defendant injected heroin into Dewey Rivet’s arm. On cross-examination, Everett admitted that he had also been shot with dope on this occasion. Shortly after he and Rivet had left defendant’s home, they were stopped by the police. Everett was arrested and charged with possession of heroin. The witness signed a statement at the timé of his arrest. He denied that the police made any threats to him if he did not testify against defendant either at the time of his arrest or subsequently. Thereupon, defense counsel questioned the witness as to whether he was present when the police questioned Rivet to which he relied in the affirmative. Everett was then questioned as to what he had heard the police tell Rivet. The state objected on the ground of hearsay. The objection was sustained by the court.

In the second instance (Assignment of Error No. 6), defendant had taken the stand in his own defense. While admitting that Rivet and Everett had been at his house on the day in question, he denied administering heroin to them. He stated that they left but returned shortly thereafter with the police and identified him to the police. Thereupon, defendant began to testify as to what one of the police officers said to Lonnie Everett at the time. The state objected on the ground of hearsay. The court first ruled that the testimony of what the police officer said would be hearsay. The jury was removed and further discussion ensued. It is unclear from the record as to whether the trial judge ultimately reversed his previous ruling on this point.

Hearsay evidence is evidence of an un-sworn, out-of-court statement made by a person other than the testifying witness and introduced for the truth of its content. State v. Hayes, 306 So.2d 705 (La.1975); State v. Jacobs, 281 So.2d 713 (La.1973). Hearsay evidence is inadmissible except under one of the statutory or well-recognized exceptions. La.R.S. 15:434.

The testimony attempted to be adduced in each instance was, in fact, evidence of unsworn, out-of-court statements made by persons (police officers) other than the testifying witnesses (Lonnie Everett and Earnest Brown). The record reflects that, when the trial judge ruled that the proposed testimony constituted hearsay, the defendant noted his disagreement with the ruling but failed to state any valid grounds for his position that the statements of the out-of-court declarants were admissible. La.Code Crim.P. art. 841 provides that an irregularity or error cannot be availed of after verdict unless the party “at the time the ruling or order of the court is made or sought, makes known to the court . his objections to the action of the court, and the grounds therefore.” No argument was ever presented for the consideration of the trial judge alleging that the testimony sought to be admitted fell within one of the exceptions to the prohibition against hearsay evidence. Nor did the defendant claim that the testimony was non-hearsay and demonstrate that it was being offered for some purpose other than to prove the truth of the matters asserted in the out-of-court statements. Moreover, the defendant has not indicated what the testimony of the witnesses would have been had they been allowed to answer his questions and he has not shown how and to what extent his defense has been prejudiced by the exclusion of the evidence. Without a further showing by the defendant, we cannot find that the trial judge erred in sustaining the state’s objections to the proposed testimony.

Assignments of Error Nos. 5 and 6 are without substance.

ASSIGNMENT OF ERROR NO. 7

Defendant assigns as error the trial judge’s refusal to grant a new trial for the purpose of presenting newly discovered evidence designed to establish defendant’s presence in class at the Elkins Institute in New Orleans from 8:00 a. m. to 1:00 p. m. on the date of the alleged crime (March 27, 1974).

La.Code Crim.P. art. 851(3) (1966) dictates that the court, on motion of defendant, shall grant a new trial whenever:

New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

This court has consistently held that a motion for a new trial is properly rejected where the new evidence is of a nature that it should have been discovered before or during trial. State v. Rossi, 273 So.2d 265 (La.1973). The presence of the defendant in class at the Elkins Institute was a fact peculiarly within his own knowledge. Failure to produce witnesses to so testify cannot satisfy the showing of due diligence mandated by Code Crim.P. art. 851(3).

Furthermore, the defendant failed to demonstrate that had the evidence been offered in the original trial it would probably have changed the verdict of guilty. In considering a motion for new trial based on newly discovered evidence, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Jackson, 253 La. 205, 217 So.2d 372 (1968). The trial judge is accorded considerable discretion in evaluating the impact of the testimony on the verdict, and his ruling will be disturbed on appeal only when there is a clear showing of abuse of discretion. State v. Phanor, 325 So.2d 579 (La.1976). One of the state witnesses, Lonnie Everett, testified that Brown was present when he “shot dope” at Brown’s residence at approximately 5:00 p. m. on March 27, 1974. Moreover, the defendant in his own testimony confirmed that he was at home on the afternoon in question and that Everett was with him, among others, until shortly before 6:00 p. m. Even assuming that the defendant could prove his presence in class at Elkins Institute in New Orleans until 1:00 p. m. on the date of the offense charged, that evidence would not preclude his guilt of a crime committed later that date in a neighboring parish (Jefferson). Therefore, the alleged newly-discovered evidence did not meet the requisite standard of probability of changing the verdict.

The trial judge did not abuse his discretion in denying the motion for a new trial.

Assignment of Error No. 7 is without merit.

DECREE

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

      . Assignments of Error Nos. 3 and 4 have neither been briefed nor argued to this court. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La. 1976); State v. Carlisle, 315 So.2d 675 (La. 1975).


author: DIXON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Randy CLARK.
    No. 58055.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      Frank Bright, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On November 10, 1975 defendant Randy Clark was indicted by the Caddo Parish Grand Jury for distribution of methamphetamine, a controlled dangerous substance, in violation of R.S. 40:968. He was tried before twelve jurors who, on January 15, 1976, returned a verdict of guilty as charged. On March 3, 1976 the prosecution filed a third offender bill of information on the basis of which the judge sentenced defendant to fifteen years at hard labor on March 15, 1976. The defendant reserved nine assignments of error but on appeal abandoned two. Due to our disposition of this case we need only discuss Assignment of Error No. 2.

At defendant’s trial it was established that on September 3,1975 agent Noel Reed of the Louisiana State Police narcotics division and informant, John David Emmons, arranged a purchase of methamphetamine from defendant. Both agent Reed and Em-mons testified that Emmons’ person and car were searched to ascertain whether he had any controlled dangerous substances in his possession; no controlled dangerous substances were discovered. Emmons was given $50.00, the prearranged purchase price for two grams of methamphetamine, and he then proceeded to Wilson’s Department Store parking lot to meet the defendant. Emmons testified that he and defendant got in Emmons’ ear and Emmons gave defendant $50.00 in exchange for two grams of methamphetamine. Agent Reed watched this transaction but testified that he did not actually see the money and methamphetamine change hands due to his angle of vision. After defendant left, Em-mons surrendered two grams of methamphetamine to agent Reed and a search of Emmons did not produce the marked money-

Defendant put on no evidence but his cross-examination of the State’s witnesses revealed that the defense contention was that no crime had been committed. The defense apparently attempted to establish that the paid informer, Emmons, was biased and that he had somehow “framed” the defendant. The defendant elicited such facts as the lack of a thorough search of Emmons’ car and the failure to find the marked money in defendant’s possession in order to supplement the inference that Em-mons was not credible and had fabricated the alleged sale.

At an early stage of the State’s case in chief the prosecution sought to introduce evidence that the defendant also distributed methamphetamine to David Emmons on September 19, 1975. The defense objected on the grounds that this evidence was irrelevant and, in any event, too prejudicial. The objection was overruled and forms the basis for defendant’s Assignment of Error No. 2. Defendant’s objection at the trial level raises the issue of whether this extraneous offense fits within any established exception to the rule prohibiting the introduction of “other crimes” evidence.

The evidence of the extraneous offense consisted of the following:

On September 19, 1975 John David Em-mons and agent Reed arranged a purchase of methamphetamine from defendant. The transaction was confected in similar fashion to the first. Emmons was searched and then given $ 100.00 to purchase five grams of methamphetamine. Emmons, accompanied by another narcotics agent, Ms. Bell, proceeded to defendant’s house trailer. The sale was consummated in defendant’s bedroom outside the presence of agent Bell. Emmons and the agent then met with agent Reed whereby a search revealed five grams of methamphetamine but no money. The evidence of this transaction was elicited from Emmons, Reed, Bell and another narcotics agent.

Defendant concedes that all the technical requirements established by State v. Prieur, 277 So.2d 126 (La.1973) were followed. However, he argues that the evidence was irrelevant and its admission constitutes reversible error. R.S. 15:445 provides:

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

State v. Moore, 278 So.2d 781, 785 (La. 1973), held that in order to be admissible evidence of extraneous offenses must be independently relevant to prove an element of the State’s case and the probative value of the evidence must outweigh its prejudicial effect. R.S. 40:968 only requires that the prohibited acts be “knowingly or intentionally” done and thereby only requires a general criminal intent. Since this intent is established by mere proof of voluntary distribution, intent was not an issue in the case. State v. Banks, 307 So.2d 594, 597 (La.1975).

State v. Moore, supra, in construing R.S. 15:435 also held that nothing may be given in evidence which does not tend to prove or disprove a matter in issue. “In explaining whether the evidence of other crimes might be relevant, the ‘matter in issue’ must be real and genuine, and not one which the prosecution conceives to be at issue merely because of the plea of not guilty.” The defendant was adequately identified by both Emmons and agent Reed as the person who sold Emmons the methamphetamine on September 3, 1975. In addition, the defendant’s cross-examination of the State’s witnesses did not contest this identification and defendant did not attempt to raise any issue of identification in defense. Thus, the extraneous offense was completely unnecessary to prove identity because it was not truly a “matter in issue.”

We have said that in narcotics possession and distribution cases the State has the burden of proving “guilty knowledge.” E. g. State v. Knight, 298 So.2d 726 (La.1974); State v. Kreller, 255 La. 982, 233 So.2d 906 (1970). However, the prosecution can not introduce an extraneous offense under the guise of proving “guilty knowledge” when in fact it is not a genuine matter in issue.

If the jury believed the informer’s testimony, the evidence established that the defendant gave two grams of methamphetamine to Emmons in exchange for $50.00. The defense rested, if on anything, on the lack of credibility of the State’s primary witness, Emmons. The defense did not in any way contend that the defendant possessed the drugs accidentally or without an awareness of the substance’s illegal nature, only that a crime was fabricated by the informer. Since the prosecution has the burden of proving every element of the offense in its case in chief, it cannot wait to see whether defendant will raise in his defense the absence of “guilty knowledge.” The price paid for the substance and the nature of the transaction, itself, in the case before us, adequately established “guilty knowledge.” In the absence of proof to the contrary, no reasonable man could conclude that defendant in these surreptitious circumstances was knowingly receiving $50.00 for two grams of a substance the nature of which he was not aware. Guilty knowledge was not a genuine “matter in issue” and, thus, did not form “an essential part of the inquiry.” R.S. 15:446. The evidence served its true purpose of fully placing defendant’s bad character before the jury and, as such, constitutes reversible error. State v. Harrison, 291 So.2d 782 (La.1974); State v. Moore, supra.

For the foregoing reasons, the conviction and sentence are reversed and the case is remanded to the trial court for a new trial.

DENNIS, J., concurs, being of the view that the State may use the evidence of the prior offense in rebuttal in a proper case where the defendant has raised issues of intent or identity, which were not present here.

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

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In my view, the evidence of this similar act was clearly admissible to show system, knowledge and intent under La.R.S. 15:445 and 446. Moreover, the probative value of the evidence outweighed its prejudicial effect. Accordingly, I respectfully dissent.

      . R.S. 14:11; State v. Banks, 307 So.2d 594 (La. 1975); State v. Scott, 278 So.2d 121 (La. 1973).

      . Thus, State v. Medlock, 297 So.2d 190 (La. 1974), is distinguishable since it dealt with a charge of possession with the intent to distribute and required proof of specific intent.

      . “The evidence must be relevant to the material issue.”

        .State v. Moore, 278 So.2d 781, 785-786 (La. 1973):
      “ ‘The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of evidence.’ R. v. Thompson (1918) A.C. 221, 232.”

      . This case is thus distinguishable from State v. Banks, 307 So.2d 594 (La.1975), wherein the defendant contended that the witness who identified him as the perpetrator of the crime for which he was on trial made a mistake as to the identity of the accused. Thus, in order to refute this allegation it was relevant to elicit evidence of a similar transaction in which the same witness had identified the accused.

      . State v. Kibby, 294 So.2d 196 (La.1974), dealt with a similar issue of whether the extraneous offense admitted in that prosecution for distribution of marijuana was error. Although noting that the evidence was admissible to show “guilty knowledge,” the court stated that the evidence was “clearly admissible for the purpose of showing the opportunity of the agent [a witness to both the crime charged and the other offense] to correctly identify the accused.” As such the case is consistent with State v. Banks, 307 So.2d 594 (La.1975), and is not in conflict with this opinion. Likewise, State v. Lewis, 294 So.2d 204 (La.1974), is not contrary to this decision since the issue there was whether the proper procedural guidelines had been complied with. The court held that the defendant’s objection on this ground was without merit since the defendant had introduced the issue of other crimes into the case. Those cases which were decided before State v. Prieur, 277 So.2d 126 (La.1973) and State v. Moore, 278 So.2d 781 (La.1973), and apparently conflict with this case are not persuasive since Prieur and Moore mandate a closer analysis of the relevance of extraneous offenses than previously obtained. To the extent post Prieur and Moore cases conflict with this opinion, this court is of the opinion that the analysis contained herein provides the better approach.