text:
    STATE of Louisiana v. James J. ROBINSON.
    No. 60147.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.

      Ford T. Hardy, Jr., Wootan, Howcott & Whittington, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Charles Brandt, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, James J. Robinson, with armed robbery, a violation of LSA-R.S. 14:64. A jury returned a guilty verdict. The court sentenced him to thirty years imprisonment without benefit of probation, parole, or suspension of sentence.

The defendant appeals. He relies on six assignments of error for reversal of his conviction and sentence.

We adduce the following context facts:

The defendant approached the victim, Melvin Light, to apologize for a previous fight. Although Light accepted the apology, he banned the defendant from his lounge. As Light turned toward the defendant, the defendant sprayed “Halt” into his eyes. (Halt is a chemical agent postmen carry for protection against dogs.) Then, the defendant beat him with his fists. Before leaving, the defendant rifled his pockets and stole approximately $125.

ASSIGNMENTS OF ERROR NOS. 1 AND 5

The defendant challenges the admission of S — 1 through S-4, photographs of the victim’s face.

Initially, he alleges that photographs of the victim’s injuries have no probative value in an armed robbery prosecution, and thus, are prejudicial.

For admission, a photograph’s probative value must outweigh. any prejudicial effect upon the jury, and it must be relevant to a material issue at trial. State v. Redwine, La., 337 So.2d 1041 (1976); State v. Cooper, La., 334 So.2d 211 (1976);' State v. Smith, La., 327 So.2d 355 (1975).

S-l through S-4 are black and white photographs of the victim’s face. They depict his condition after the armed robbery: swollen, cut, and bruised. (The two cuts, less than one inch long, were stitched.)

We do not find the photographs particularly gruesome. Although the area about his eyes is puffy, his features are not distorted. In any event, they are not “so gruesome as to ‘overwhelm reason’ and cause a jury to lose sight of the need for the prosecutor to establish with sufficient independent evidence the guilt of the accused.” State v. Smith, supra.

Moreover, we find the photographs relevant to a material issue and of high probative value. In an armed robbery prosecution, the State must prove that the defendant used force or intimidation during the taking. LSA-R.S. 14:64; State v. Red-wine, supra; State v. Hatch, La., 305 So.2d 497 (1974). The victim was the sole witness to the armed robbery. He testified that the defendant beat him. The photographs show evidence of a beating. Thus, the photographs corroborated his testimony that the defendant used force to commit the armed robbery, an essential ingredient of the crime. State v. Holland, La., 297 So.2d 413 (1974).

We hold that the photographs are relevant and that their probative value outweighs any possible prejudice.

The defendant’s second attack on the photographs concerns the State’s foundation for their admission. He avers that the State should have called the photographer to testify to their development process.

In State v. Freetime, La., 334 So.2d 207, 209 (1976), this Court stated:

“It is a well-settled rule that a photograph need not be identified by the person who took it to be admissible in evidence. State v. Browning, 290 So.2d 322 (La.1974); State v. Mitchell, 278 So.2d 48 (La.1973); State v. Fox, 251 La. 464, 205 So.2d 42 (1967). Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy and when they tend to shed light upon the matter before the court. State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). Sufficiency of identification of a photograph for purpose of admissibility thereof into evidence rests largely within the discretion of the trial judge. State v. Fox, supra.

Officer Woods was present at the hospital when the photographs were taken. He testified that they accurately reflect the victim’s condition. As the photographs were relevant to the issue of force (as discussed above), the State laid a proper predicate for their admission.

In conclusion, we hold that the court correctly admitted the photographs of the victim into evidence.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, AND 4

The defendant contends that the court erred in overruling his challenges for cause as to three prospective jurors.

The first prospective juror was Thomas Quinlan. He works part-time as a desk supervisor for a private security firm. (He never did field work.) In addition, he was commissioned to carry a gun and authorized to make arrests. The second was Leo Newman. He is a private security guard and his son is a policeman. Newman has arrested suspects in his line of duty.

The defense contends that their involvement in law enforcement renders them partial, since they would naturally favor the testimony of the police and victims.

Service on a criminal jury by one associated with law enforcement duties must be closely scrutinized, and may justify a challenge for cause. State v. Madison, La., 345 So.2d 485 (1977). However, such association does not automatically disqualify a prospective juror. See State v. Ballard, La., 337 So.2d 481 (1976); State v. Wilkerson, La., 326 So.2d 353 (1976); State v. Reese, 250 La. 151, 194 So.2d 729 (1967). A juror’s relationship to one associated with law enforcement only disqualifies him if the relationship is “such that one might reasonably conclude that it would influence the juror in arriving at the verdict.” State v. McClure, 258 La. 999, 249 So.2d 109, 113 (1971). State v. Calloway, La., 343 So.2d 694 (1976).

This Court will not reverse a ruling which denies a challenge for cause if, on review of the entire voir dire examination, the juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. State v. Passman, La., 345 So.2d 874 (1977), and the numerous cases cited therein.

Both prospective jurors testified that their affiliations would not prevent them from being fair and impartial; that they would not give additional weight to the police’s testimony; that they would try the case in the same manner as they would expect to be tried. Based on a reading of the entire voir dire, we conclude that the trial judge did not abuse his discretion in denying the challenges for cause.

The third prospective juror was Mrs. Philip Habar. Defense counsel twice asked her if she would acquit the defendant of armed robbery even if she thought him guilty of other misconduct. She first answered “yes,” but the second time she said, “maybe not.” Counsel argues that her second response indicates that she would be a partial juror.

An examination of the entire voir dire supports the trial judge’s finding Mrs. Ha-bar an impartial juror. In responding to both the court’s and counsel’s questions, she later stated that she could return a not guilty verdict on the armed robbery charge even if he committed another crime.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 6

The defendant complains of the denial of his motion for a new trial.

The motion states, in pertinent part:

“The verdict of the jury rendered against him ... is contrary to the law and evidence in the following particulars:
“A. The jury finding that the can of ‘Halt’ spray, was a dangerous weapon within the meaning of LRS 14:2(3) is clearly contrary to the evidence presented by the defense at trial, and the law of the State of Louisiana;
“B. The jury finding that defendant, James J. Robinson, robbed Melvin Light is further contrary to the evidence presented by the defense at trial.
“Defendant is aggrieved by the said verdict of the jury, and desires and is entitled to a new trial, pursuant to Louisiana Code of Criminal Procedure, Article 851(1) [that the verdict is contrary to the law and the evidence.]”

It is well settled that where a defendant assigns error to the denial of a motion for new trial grounded on an allegation that the verdict is contrary to the law and evidence, he presents nothing for our review. State v. Anthony, La., 347 So.2d 483 (1977); State v. Finley, La., 341 So.2d 381 (1976); State v. Brown, La., 337 So.2d 484 (1976); State v. Jack, La., 332 So.2d 464 (1976); State v. Woods, La., 327 So.2d 405 (1976).

Nevertheless, assuming that the assignment properly raises the legal question of the complete absence of evidence to support a finding that the defendant used a dangerous weapon, we have reviewed the record and find there is some evidence of this essential element of the crime.

This assignment of error is without merit.

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


source: Caselaw Access Project

author: DIXON, Justice. TATE, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Ellis GUILLOT.
    No. 60151.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      John F. Rau, Jr., Harvey, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   DIXON, Justice.

On May 29, 1974 the defendant was charged by bill of information with the offense of aggravated crime against nature (R.S. 14:89.1), allegedly committed on or about May 11, 1974. On September 24, 1974, after trial by jury, defendant was found guilty as charged. On November 24, 1974 he was sentenced to ten years imprisonment at hard labor. His appeal was lodged in this court on June 30, 1977.

The facts surrounding the offense are as follows. On the evening of May 10, 1974, the victim, a sixteen-year-old girl, and her boyfriend were parked in his car in the rear of Brectel Park, located in Orleans Parish. The two had been on the back seat of the car for a while when they were interrupted by a knock on the window. A man entered the front seat of the car, identified himself as a patrolman in the park, and told the young couple that he had to either report them to the police or turn them over to their parents. The couple then got into the man’s red pickup truck, as ordered, and rode with the man for approximately twenty to thirty minutes. During the drive the man said that he was going to give the couple a break — he would take the boy back to his car, follow him to the Mississippi River Bridge (the boy lived on the East Bank of the river) and drive the girl home. After the man, accompanied by the victim, followed the boy to the bridge, he turned and drove toward a shopping center located in Jefferson Parish, eventually arriving at an apartment. During the ride the man placed his hand on the victim’s head and pushed it down on his penis, forcing her to perform oral copulation. After arriving at the apartment, the man and the victim went inside where he forced her to perform an act of oral sex a second time and then forced her to engage in “normal” sexual intercourse. Thereafter both returned to the truck and the girl was driven home.

After the victim told her parents what had happened, she was taken to the police station. There she gave the police a description of her assailant and assisted in making a composite picture.

During his investigation of the case, Detective Michael Ling received information from another police officer about a possible suspect. According to this officer the suspect, defendant Ellis Guillot, fit the description given by the victim, had been arrested before for attempted rape, had used a similar method of operation, and owned a red pickup truck. The victim and her companion (who had examined many photographs at the police station) were then shown a photo lineup and the defendant’s picture was identified. Shortly thereafter the defendant was arrested at his Jefferson Parish apartment.

Assignment of Error No. 1

During trial, the defendant objected to the State’s introduction of evidence of the photographic lineup. A hearing was held outside the presence of the jury for the purpose of determining the admissibility of the identification. The trial judge ruled the evidence inadmissible, on grounds that the lineup was impermissibly suggestive. We denied the State’s application for supervisory writs, stating that, “Absent of showing of palpable error of law, irreparable injury, or injustice, this court will not interfere in the orderly trial process of the district court.” State v. Guillot, 299 So.2d 803 (La.1974).

The defendant then filed a motion to suppress evidence seized from the defendant (pubic hairs) after his arrest and all subsequent identifications. This assignment was taken to the denial of that motion by the trial court. Defendant argues that because the photographic identification was suppressed, it could not be considered in determining probable cause to arrest. Without the identification, he argues, the arrest was without probable cause and therefore all evidence seized as a result of the arrest should be suppressed as “fruit of the poisonous tree.”

We need not reach defendant’s contention, however, because, after careful consideration, we hold that the photographic lineup was not violative of the defendant’s due process rights and therefore the trial court erred in suppressing it.

On May 17, 1974, six days after the offense, both the victim and her boyfriend were shown, outside each other’s presence, a group of six or seven photographs, including one of the defendant. Both made positive identifications of the defendant. The trial judge, at the time of his ruling, stated:

“I think we all agree that the doctrine is fairness that the photographic line up or the physical line up must be such that the due process is not violated that there is no suggestion made to the witness since the witness has an equal chance of picking out anyone of the photographs. I think you gentlemen agree with that.
“This Court does not feel that this was a fair photographic line up, that the element of fairness, there were really only three pictures that the witness could have picked out and one of those is very questionable, in fact, two of those are somewhat questionable, certainly one of those is questionable. So the court is going to rule that the photographic line up violated due process and the pictures are not admissible.”

Apparently this ruling was based solely on the trial judge’s evaluation of the suggestiveness of the photographs.

In determining the constitutionality of an out-of-court identification, several factors must be considered. First, the suggestiveness of the identification procedure must be evaluated. In the present case, the procedure was not suggestive. The officer conducting the identification first separated the two witnesses. Then, alone in a room with the witness, he showed each of the seven photographs. The photographs used had no distinguishing marks. It is clear, therefore, that the procedure used was not suggestive.

Further, the pictures (or persons) used in the lineup should not display the defendant so singularly that the witness’ attention is unduly focused upon the defendant. It is often stated that a strict identity of characteristics is not required; rather, a sufficient resemblance to reasonably test the identification is necessary. State v. Gray, 351 So.2d 448 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977); State v. McSpaddin, 341 So.2d 868 (La.1977); State v. Hargrove, 330 So.2d 895 (La.1976). This determination is made by examining articulable features of the pictures or persons used: height, weight, build; hair color, length and texture; facial hair; skin color and complexion; and the shape and size of the nose, eyes, lips, etc. In the present case, the trial judge found that out of seven photographs, only two or three could have been that of the defendant. This number should be enough to reasonably test the identification. We have determined after examining the photographs that there is no undue suggestion, and, therefore, we now hold that the trial court erred in finding the identification to be tainted by suggestion.

Even should the identification be considered suggestive, this alone does not indicate a violation of the defendant’s right to due process. It is the likelihood of mis-identification which violates due process, not merely .the suggestive identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In Manson v. Brathwaite, supra, a police officer, working undercover, purchased narcotics from “Dickie Boy” Cicero, and then returned to the police station where he described the seller to other officers. A photograph of a person fitting the description given by the officer was placed on his desk and he later, while alone and viewing no other pictures, identified it as that of the seller. The Supreme Court stated:

“We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. 409 U.S., at 199-200, 34 L.Ed.2d 401, 93 S.Ct. 375. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” 97 S.Ct. at 2253.

Applying the Manson analysis to the present case obtains the following:

1. The opportunity to view: The victim was with the defendant for approximately one to one and a half hours; her boyfriend for about twenty-five minutes. Both had the opportunity to view the defendant while riding in the cab of his truck. Although it was night at the time of the incident, the lack of lighting was offset by their close proximity to the defendant and by the length of time spent in his presence. The girl also spent ten to fifteen minutes inside a well lighted apartment with the defendant.

2. The degree of attention: Neither witness was a casual observer; both most certainly had their attention riveted to the defendant.

3. The accuracy of the description: The description given by the victim and the composite picture made with her assistance both matched that of the defendant.

4. The witness’ level of certainty: Both witnesses made positive identifications.

5. The time between the crime and the confrontation: The lineup occurred only six days after the offense was committed.

Weighing these indicia of reliability against the marginally suggestive identification process, it is clear that there was not a significant chance of misidentification, and, therefore, the defendant was not denied due process. The police, with the information received concerning the defendant’s prior similar acts and the positive identification, had probable cause to arrest the defendant. Therefore, the trial court did not err in denying the motion to suppress evidence seized from the defendant at the time of his arrest. Neither was it error to allow evidence of subsequent identifications.

The assignment is without merit.

Assignments of Error Nos. 2 and 3

After the trial the defendant filed a motion for new trial on grounds that the State failed to introduce evidence on venue. These assignments are based on the denial of that motion. "

While the State must prove venue beyond a reasonable doubt, our review is limited to whether there was some evidence on venue submitted to the jury, not to the sufficiency of that evidence. State v. West, 319 So.2d 901 (La.1975); State v. Jackson, 308' So.2d 265 (La.1975). The State did not fail to produce some evidence of venue.

These assignments are without merit.

Assignment of Error No. 4

During the State’s closing argument the following occurred:

“MR. KONRAD: [for the state]
Okay.
We know from Connie’s testimony that they were in front of the Oakwood or the Oakwood Shopping Center on either the service road or West Bank Expressway. MR. RAU: [for the defense]
She didn’t say that. She said they were going towards—
MR. KONRAD:
She said at the service road and the west bank or either on the west bank expressway. If you want to read that back—
THE COURT:
She said they were going toward the shopping center and she thinks she was on the West Bank Expressway, the service road or the West Bank Expressway
MR. KONRAD:
Can we approach the Bench?
(Discussion off the record.)
MR. KONRAD:
Gentlemen—
MR. RAU:
Wait. If Your Honor please, for the record I want to object to the Court’s remarks.
MR. KONRAD:
I really think, Your Honor, that on that one point, on the point that I made at the bench that the only—
THE COURT:
The Court will .reconsider its ruling where Mr. Rau objected. Each side is entitled to draw conclusions from the evidence. The Court on reconsideration feeling that Mr. Konrad said it had to be going west—
MR. RAU:
I’ll object again, Your Honor.”

Defendant contends that the trial judge’s remarks constituted a comment on the evidence and that it was error to deny the motion for new trial urging those grounds.

C.Cr.P. 772 provides:

“The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

This court has on numerous occasions held that remarks made by the trial judge in the jury’s presence giving reasons for his rulings are not objectionable as comments on the evidence provided they are neither prejudicial nor unfair to the defendant. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Taylor, 347 So.2d 172 (La.1977); State v. Hardy, 344 So.2d 1018 (La.1977); State v. Young, 337 So.2d 1196 (La.1976); State v. Lane, 302 So.2d 880 (La.1974). While the statement in this case comes close to a comment on the evidence, it does not appear that the defendant was so prejudiced as to require a new trial.

The assignment is without merit.

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

TATE, J., assigns concurring reasons.

TATE, Justice,

concurring.

I concur in the affirmance of the conviction.

With regard to Assignment of Error No. 1, however, I would overrule on a different basis the motion to suppress evidence (pubic hairs) seized from the defendant after his arrest. The defendant contends that the seizure was illegal, since the arrest resulted from an illegal photographic lineup previously held to be impermissibly suggestive by the trial court..

Nevertheless, the issue before us is far more narrow than the illegality or not of the lineup. ■ Even though it was improperly held, I do not believe that all consequences of the arrest following it are stricken with constitutional invalidity.

The purposes of the exclusionary rule are served by excluding from evidence the improper identification itself. The seizure of pubic hairs after the arrest of the accused is only indirectly connected with the constitutional violation' represented by the lineup (they could, for instance, have been taken not only immediately after the arrest but during the trial itself). Therefore, the deterrent policy and individual protections protected by the constitutional provision violated are not served by suppression: The causal connection between the initial unlawful conduct and the evidence sought to be suppressed is so attenuated as to dissipate its initial taint. See State v. Jenkins, 340 So.2d 157 (La.1976). See also, U.S. v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

Under the circumstances shown, I think we can reasonably say that the pubic hairs seized were not the fruit of the constitutional violation represented by the lineup, especially considering the non-flagrant nature of official misconduct and its lack of purpose to serve as a mere pretext to secure the evidence now sought to be suppressed. Cf., Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407,9 L.Ed.2d 441 (1963).

The invalidity of the lineup should not, by itself, strike with invalidity the consequent arrest; even if it does, then the defendant’s complaint should be limited to suppression of any evidence seized incident to the arrest and as an immediate consequence thereof.

In summary, here, the investigation subsequent to the arrest and after booking and Miranda warnings, etc., including the taking of the pubic hairs, should be regarded as insulated from the initial taint of illegality of the lineup by the intervening circumstances and by the attenuated causal connection between the initial illegality and the subsequent seizure, which only indirectly resulted, if at all, from the tainted lineup.

      . A writ denial, such as that in the present case, is not to be construed as a judgment determinative of the merits, but rather as an indication that, presented with limited briefs and records, this court was unable to identity a clear error of law significant enough to interfere with the trial proceedings. See State v. Smith, 322 So.2d 197 (La.1975).

      . The name of the person depicted by the photograph and the offense for which he was arrested was written on the back of each picture. Testimony at the hearing, however, indicates that the witnesses were not allowed to see the back of the picture during the identification procedure.

      . Features such as height, and to a certain extent, weight and build, are of limited relevance where, as in this case, the photographs show only the shoulders and head.

      . The evidence of the lineup was therefore suppressed. 1 doubt that, upon the defendant’s appeal, we can re-examine that interlocutory ruling which was adverse to the state. 1 have further reservations that the trial court erred in suppressing evidence of the photographic lineup.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Ernest Wayne HALEY, Jr.
    No. 60217.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.
    W. Ellis Bond, Richard P. Ieyoub, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In a bill of information filed August 24, 1976 Ernest Wayne Haley, Jr., was charged with attempted murder of one Mervin Roy. La.Rev.Stat. 14:27. The attempt involved the shooting of Mervin Roy by the defendant. After a plea of not guilty and not guilty by reason of insanity, defendant was found guilty in a trial by jury and sentenced to imprisonment for twelve years. On this appeal one assignment of error is relied upon for reversal of the conviction and sentence.

Prior to pleading defense counsel moved for the appointment of a sanity commission to examine defendant and report on his present sanity and his sanity at the time of the commission of the alleged offense. The court appointed two psychiatrists, Dr. Keith Nabours and Dr. Harper Willis, to examine defendant in accordance with the defense motion and fixed a date for a hearing on the report of the sanity commission.

In his written report to the court filed in connection with the hearing held on September 22, 1976 Dr. Nabours found, as a result of his examination, “That Ernest Haley, Jr., is presently mentally competent. In my opinion he was probably sane at the time of the commission of the alleged offense.” He reported further that Haley fully understood the natural, probable and usual consequences of his acts and that Haley was able to adequately assist his counsel in the defense of his cause.

When cross-examined at the hearing concerning his examination, Dr. Nabours said he was not sure Haley had an acute brain syndrome. Maybe, he said, Haley had a mild degree of brain impairment since birth. He repeated the conclusion reached in his written report that Haley was probably competent at the time of the offense.

Dr. Willis examined Haley on September 13, 1976. His written report gave a diagnostic impression that Haley was a passive aggressive personality with drug addiction. He was of the opinion the patient apparently had an acute brain syndrome secondary to drugs at the time of the commission of the offense. Haley had no recall of details and the brain syndrome was subsiding. He concluded Haley was presently able to understand the nature of the charges against him and to assist counsel in his defense.

During the hearing defense counsel stated that the defendant was indigent and that he, defense counsel, had been appointed by the court to represent him. There were therefore no funds available to the defense to retain the services of a psychiatrist. He then moved that Dr. Willis be appointed by the court to assist the defense during the trial in order that defendant might have the full benefit of psychiatric examinations and testimony on the question of his mental competence at the time of the commission, of the offense. Costs of Dr. Willis’ services to be paid by the State or Dr. Willis should be required to serve without pay just as defense counsel was required to do. The motion was denied.

A like motion was later made to appoint Dr. Nabours, which was also denied. Defense counsel then moved that any qualified psychiatrist be appointed to assist the defense at the expense of the State and this motion was denied. Objection was made to these rulings and they are assigned as error.

The trial judge then ruled that the defendant was mentally competent to stand trial.

The defense brief acknowledges that the proposition presented by the rulings of the trial judge had been rejected by this Court in a number of its decisions, citing State v. Stuart, 344 So.2d 1006 (La.1977); State v. Gray, 258 La. 852, 248 So.2d 313 (La.1971) and State v. Square, 257 La. 743, 244 So.2d 200 (1971). However, the instant case is said to be distinguishable from this Court’s prior adjudications. Therefore, to deny appointment of a medical expert to this defendant will deny him due process and equal protection guaranteed by the Fourteenth Amendment to the Constitution of the United States.

The distinguishing feature between the three cases cited and the case at bar is said to be factual. In the cited cases the defense argues the Sanity Commission was unanimous in finding the defendant presently competent to stand trial and capable of understanding right from wrong at the time the offense was committed. In the cited cases the defense contends none of the Commissioners questioned the sanity of the defense at the time of the commission of the crime.

In the case at bar, however, it is asserted in brief that Dr. Willis noted the presence of an acute brain syndrome, secondary to drugs, with loss of memory of the events. Dr. Willis also testified that further testing procedures would be necessary in order to reach a conclusion as to the sanity of the defendant at the time of the offense. Thus, the argument goes, at least one member of the Commission doubted defendant’s sanity at the time of the offense and the defense was without funds to retain the services of experts to perform the necessary examinations and give the required testimony.

In our view the record amply supports the ruling of the trial judge. Dr. Nabour’s testimony places considerable doubt on the opinion of Dr. Willis that defendant had an acute brain syndrome. He was not sure that defendant had such a syndrome, but that maybe Haley had a mild degree of brain impairment. Nevertheless, he con-eluded that Haley was probably competent at the time of the offense.

The weight of Dr. Willis’ diagnostic impression that Haley had no memory of the events is contradicted by the statement Haley gave to the police on August 20, 1976, the very day of the shooting, only twenty-three days prior to Dr. Willis’ examination. On that occasion he gave the police a detailed account of the events leading to and surrounding the shooting, the provocation, place names, conversation, descriptions of objects, the actual number of shots fired at the victim, and defendant’s actions in attempting to escape. In summary his statement recited, “All I can say is that I’m sorry that I didn’t kill the guy, I’m glad that I didn’t hit anyone else.”

Haley’s statement, therefore, negates the idea that he did not know what he was doing, had no recollection of the facts surrounding the offense or that he did not know right from wrong.

In addition to the authorities cited by the defense, the case of State v. Thomas, 310 So.2d 517 (La.1975) and State v. Taylor, 347 So.2d 172 (La.1977) also stand for the proposition that our statutory procedure is not constitutionally infirm because it does not afford the defendant the right to have the State pay for an independent psychiatric examination.

This Court’s latest expression on the subject is found in State v. Taylor, supra, saying:

“A defendant is not entitled of right to an examination and evaluation of his sanity at the time of the offense. LSA-C. Cr.P. Art. 650. Whether a sanity commission is directed to investigate his sanity at that time lies within the discretion of the trial judge. State v. Link, La., 301 So.2d 339 (1974) and the cases cited therein.
“The issue of defendant’s sanity at the time of the offense is a jury question. The defendant could, as the trial judge noted, interrogate Dr. Healy on that issue at the trial.”

On the basis of the facts of record in the case at bar the ruling of the trial judge is supported by the record, for the evidence is not convincing that this defendant had acute syndromes or loss of memory, and there was therefore no abuse of discretion in denying the defense motion.

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


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Lee UNDERWOOD, Appellant.
    No. 60243.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.
    See also, 345 So.2d 904.

      Paul H. Kidd, Monroe, George M. Strick-ler, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of three counts of distribution of marijuana. La. R.S. 40:966. He was sentenced to consecutive sentences totaling twenty-five years (out of a maximum imposable of ten years for each count).

Under well-settled provisions and principles, we find no merit to the four contentions attacking the validity of the conviction itself. However, we do find merit to defendant’s contention attacking the imposition of his sentence, alleged to be excessive, insofar as based upon a pre-sentence investigation containing grossly false and prejudicial information.

(1)

The three-count information charges the accused with distributions (sales) of marijuana on December 4,1975, January 5,1976, and January 25,1976. The substance of the charge is that the defendant sold to undercover agent Weems marijuana on these three occasions during this two-month period in the following quantities: 10 lids at $70.00 (December 4), 20 lids at $140 (January 5), and 53 pounds (according to the trial court’s per curiam, with no price shown by the record) (January 25). After the sales, pursuant to search warrant, three large cellophane trash bags containing marijuana were seized at the defendant’s residence.

After the defendant was convicted, the court stated that it did not order a pre-sen-tence investigation. See minute entry of February 10,1977. At the time of sentencing a week later, the court imposed consecutive sentences totaling 25 years on the three counts; it also fixed the accused’s bail pending appeal at $100,000 on each count, for a total of $300,000. See minute entry of February 18, 1977. (The bail was subsequently reduced to $175,000. See minute entry of June 21, 1977.)

No objection to the sentence as excessive was made at that time. Under the jurisprudence of this court, therefore, the alleged individual excessiveness of the sentence is not reviewable at this time in the accused’s appeal from his convictions. State v. Williams, 340 So.2d 1382 (La.1976). Further, since the trial court indicated it did not intend to rely upon a pre-sentence investigation, there is no issue, for purposes of this appeal, relating to a waiver by the accused of an opportunity to counter unfavorable information in a pre-sentence report through his failure to request it prior to or at the time of sentencing. See State v. Norris, 347 So.2d 225 (La.1977).

(2)

Subsequent to the appeal, but before the record was lodged here, the defendant applied to this court for relief, based upon the -following allegations:

He was a lifelong resident of the parish without previous criminal record. The exceptionally heavy sentence imposed led him to believe that it must be based upon prejudicial and inaccurate information in a pre-sentence report. After the sentence, his attorney requested of the sentencing judge an opportunity to review any pre-sentence report. The judge informed him that, while he had no objection, the report (with information as to other criminal activity) had been returned to the parole and probation department.

On these allegations, we granted relief. 345 So.2d 904 (La.1977): We granted a limited remand “for consideration by the trial judge of relator’s request for presentence report data in light of La.C.Cr.P. art. 877 and R.S. 15:574.12.” We did so, for the following reasons:

The procedure which leads to the imposition of a sentence must satisfy the requirements of federal due process, even if the accused has no federal right to object to a particular result of the sentencing process. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Thus, where, in imposing a heavy sentence, the trial court relies upon pre-sentence information which is materially false or which furnishes invalid premises for the sentence, the defendant must be given an opportunity to rebut such substantially-significant misinformation. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Espinoza, 481 F.2d 553 (CA 5, 1973). See also: Coffee, The Future of Sentence Reform: Emerging Legal Issues in the Individualization of Justice, 73 Mich. L.Rev. 1362, 1420-40 (1975); Note, Criminal Procedure — Accuracy of Pre-sentence Reports, 22 Wayne L.Rev. 899 (1976).

Tucker and Espinoza, by so ordering, indicate that the proper remedy for a sentence imposed on the basis of substantially false or improper premises is to set the sentence aside. Thereafter, the sentencing judge is to exercise his discretion in re-sentencing in the light of the remaining pertinent considerations.

(3)

At the hearing conducted in accordance with our remand order, at the trial court’s request the defendant specified the pre-sen-tence report data requested as: (1) the pre-sentence report to be made available to the defendant’s attorney, in order that he might rebut any untruthful prejudicial information which may have influenced the sentencing judge; (2) the reports concerning alleged criminal activities of the defendant, which the trial court admitted receiving (although denying he was influenced in his sentence by them); (3) the source of the information accusing the defendant of other criminal activity than presently charged with; and (4) that this information be furnished to counsel in a confidential matter, with it to be sealed and transmitted with the record for purposes of appellate review by this court.

At the non-evidentiary hearing conducted on the motion, the trial court admitted that a pre-sentence report examined by him stated: “According to information received the defendant was rumored to be probably the largest distributor of marijuana apprehended in this area. He was rumored to be bringing it in in large quantities and at times using at least one of the employees that worked for him in his construction business.”

The court further stated that it had placed absolutely no credence in this report, as third-hand hearsay initially stemming from an individual with obvious self-interest. The report did not indicate the source of this information. Upon investigation (at a time not indicated by the court), the trial court discovered that the report was based on third-hand information; the initial information had been furnished by a former employee of the defendant attempting to make a plea bargain on an unrelated criminal charge, which was then picked up and repeated and reiterated as unevaluated anonymous “intelligence” in Strike Force and other law enforcement records.

According to the trial judge, the pre-sen-tence report otherwise indicates that the defendant is an individual of no previous juvenile or criminal record, with stable family relationships (wife, sons, daughter, father and mother, and brother) and of good community and business and employment reputation and record. The pre-sentence report further contains a statement by the defendant admitting his serious criminal conduct, indicating that he did not realize the seriousness of the marijuana offenses or the penalties. From the judge’s summary of the contents of the report, it is indicated that there is no substantial likelihood of future criminal violation on the part of the defendant.

Having summarized the contents of the report, the trial judge denied any other relief requested.

The trial court stated, and its per curiam on the issue amplifies, that the heaviness of the sentence was based on the commercial sale of marijuana in quantity (the third time), and that consecutive sentences were imposed because three offenses were involved. While admitting that it had examined the pre-sentence report, the trial court reiterated that the sentences imposed were based solely upon the evidence at the trial of innocence or guilt — not at all upon information contained in the pre-sentence report. .

At the close of the hearing, the trial court denied (1) access of counsel to the pre-sen-tence report, even on a confidential basis (Assignment 13), (2) a motion to seal a xeroxed copy of the report for inclusion in the record and review by this court (Assignment 14), and (3) information to counsel as to the probation officer who prepared the report and as to the source of the adverse information, together with an evidentiary hearing by which the defendant could rebut such adverse information (Assignment 15). The chief basis of these denials was the trial court’s doubt as to its authority to grant them.

Additionally, the trial court denied without a hearing a motion to reduce and/or vacate sentences as based on consideration of improper data, at which hearing the defendant sought permission to produce evidence to show that the present sentences and bail were by far the heaviest ever imposed for similar offenses. (Assignment 17.) The trial court denied this motion, being of the opinion it had no jurisdiction to consider it since the case was on appeal.

(4)

In our opinion, for reasons to be elaborated, the trial court erred (under the circumstances shown) in failing to afford defendant counsel’s access to the pre-sen-tence report and an opportunity to rebut any adverse information therein contained.

In the first place, the pre-sentence report is shown to be materially and prejudicially false. It indicated extensive criminal activity by the accused as the largest marijuana distributor in the area, whereas it is conceded the report was unevaluated third-hand Hearsay based initially upon a tip by a person who sought profit by furnishing such false information. Without derogating from the seriousness of the defendant’s present offenses — the selling of marijuana in quantity commercially over a two-month period — , the criminal activity charged does not by itself indicate an extensive and settled course of criminal behavior over months or years, such as is implied by the present report.

In the second place, while La.C.Cr.P. art. 877 (1966) authorizes the court in its discretion to inform defense counsel of factual contents and conclusions of such a report (providing the sources of “confidential” information not be disclosed), the 1975 amendments to La.R.S. 574.12 indicate that upon proper showing (as here) the accused has a right to subpoena such records, with the court (after an in camera examination) to withhold only information which is not relevant or which is protected by confidentiality.

The federal jurisprudence earlier noted has held that due process requires an opportunity to rebut false or invalid data of a substantial nature, to which the sentencing judge was exposed, where there is a reasonable probability that it may have contributed to the harshness of the sentence.

Here, a revealed portion of the report contained unevaluated third-hand anonymous information of a grossly prejudicial nature, conceded for present purposes to be false. On this showing, the defendant’s attorney should be entitled under confidential conditions to examine the remainder of the report, subject to such excepting or deleting of source as is required to comply with La.R.S. 15:574.12 F (see footnote 3 above). “Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.” American Bar Association Standards Relating to the Administration of Criminal Justice, Standards Relating to Sentencing Standards and Alternatives, Standard 4.4(a) (1968). He should, of course, also be entitled to rebut as false any derogatory information in the report.

(5)

We likewise conclude that, under federal due process jurisprudence summarized above at (2) in this opinion, the defendant is entitled to have the three consecutive sentences set aside and the case remanded for re-sentencing in the light of valid considerations. We so conclude on the basis of the grossly prejudicial third-hand information of extensive criminal activity contained in the pre-sentence report, conceded false for present purposes, and also of the reasonable probability that such false information contributed to the unusual severity of the sentence imposed.

It is true that the able and conscientious trial judge in undoubted sincerity stated, at the hearing held four months after the sentencing, that he was not consciously influenced by the false pre-sentence data in imposing the heavy sentence. The difficulty of reconstructing and remembering reasons for a sentence months after the event is no doubt one reason the legislature recently enacted Act 635 of 1977, listing criteria for imprisonment versus suspension or probation, and requiring a contemporaneous statement for the record of the reasons and factual basis of a sentence of imprisonment. La.C.Cr.P. art. 894.1 C (1977).

Despite the trial judge’s present sincere recollection of an event that occurred four months earlier, in the midst of his heavy and multitudinous docket, the record as a whole indicates a reasonable probability that his sentencing discretion was at least unconsciously influenced by the gross misinformation of constitutionally prejudicial magnitude contained in the pre-sentence report he referred to prior to sentencing, since the consecutive sentences totaling twenty-five years appear on their face to be excessive, absent some further explanation not found in the record.

Here, the defendant, a businessman of settled family without previous criminal record, was convicted of selling marijuana to the same undercover agent on three occasions over a two-month period. The three offenses were joined in a single indictment and consolidated for trial. By almost any objective standard or accepted principle of sentencing, the consecutive sentences totaling twenty-five years are excessive, as all studies cited below show.

Based on American theory and practice, concurrent rather than consecutive sentences are the usual rule, at least for a defendant without previous criminal record and in the absence of a showing that the public safety requires a longer sentence. Except for an offender who has been convicted prior to the present offenses, the concurrent sentences should normally not exceed the maximum for the most serious offense tried. The national studies additionally indicate a usual range of sentence for a nondangerous first offender convicted of a nondangerous offense as not exceeding from five to ten years as a maximum, in the absence of exceptional circumstances (e. g., extended criminal activity which has nevertheless not heretofore resulted in a conviction).

See authorities cited in footnote 5 above, as follows: ABA Standards Relating to Sentencing Alternatives, etc., Standard 3.4 NACJSG Corrections Standards 5.2, 5.6 ALI Model Penal Code, Sections 6.06, 7.06 NCCD Model Sentencing Act, 2d, Sections 9 and 17.

Decree

For the reasons assigned, therefore, we affirm the convictions, but we vacate the sentences and remand for re-sentencing consistent with the procedures set forth by us above.

CONVICTION AFFIRMED; SENTENCE VACATED, AND REMANDED FOR RE-SENTENCING.

      . Appendix “A” to this opinion summarizes the contentions rejected. The appendix is filed in the court records with the formal court opinion, but it is not published as part of the opinion.

      . Having failed to afford such relief, the trial court nevertheless felt it had no authority to disclose more specific information, such as the name of the probation officers making the report, nor to enclose for purposes of appellate review a sealed and paraphed copy of the pre-sentence report it examined in camera. While we do not reach consideration of these issues, we note only that we find no prohibition which bars the trial court from affording a defendant an opportunity to determine whether false information influenced its sentence in violation of constitutional due process, or from affording a defendant effective appellate review of the issue involved, cf. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

      . La.R.S. 15:574.12 F provides:
      “Whenever records covered by this Section are subpoenaed, the records shall be submitted to the appropriate court for a ruling as to whether the information should be turned over to the party who caused the subpoena to be issued. The court shall make this determination in camera. Should the court find:
      (1) That the information is not relevant to the proceedings, or
      (2) That the information was derived from communications which were obviously made in the confidence that they would not be disclosed, or
      (3) That confidentiality is essential to future useful relations between the source and the recorder of the information, the information shall be withheld.”
      The statute does not prohibit such access under R.S. 15:574.12 F to the defendant himself. We are re-enforced in this view, because the statute affords access to the pre-sentence report for a wide variety of individuals, including the district attorney and law enforcement personnel (without court authorization), La. R.S. 15:574.12 B (1975), social service agencies or approved researchers, 15:574.12 D, and rehabilitation agencies or individuals, public or private, 15:574.12 E.

      . Standard 4.4(b) continues:
      “This principle should be implemented by requiring that the sentencing court permit the defendant’s attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review.”
      See also: Note, Recent Developments in the Confidentiality of Pre-Sentence Reports, 40 Albany L.Rev. 619 (1976); Note, Proposed Changes in Pre-sentence Report Procedures, 66 Journal of Criminal Law and Criminology 56 (1975); Note, Disclosure of Pre-sentence Reports in Federal Court: Due Process and Judicial Discretion, 26 Hastings L.J. 1527 (1975).

      . All present major proposals for reform of the criminal justice system recommend that, prior to felony-imprisonment sentencing, there be a disposition hearing at which a record is made of the factual basis for the sentence, with a right of the defendant to controvert false information. Uniform Rules of Criminal Procedure, Rule 613 (Nat. Conf. Com. Uniform State Laws, 1974); National Advisory Commission on Criminal Justice Standards and Goals, Corrections Standard 5.17 (1973); National Council on Crime and Delinquency, Model Sentencing Act, 2d ed., Sections 4, 10, 18 Crime and Delinquency. 335, 347, 363 (1972); ABA Standards Relating to Sentencing Alternatives and Procedures, Standard 5.5 (1968); American Law Institute Model Penal Code, Section 7.07(5) (1962).r
      While La.C.Cr.P. art. 894.1 (1977) does not require it, such a hearing complements the purposes of this enactment. No statute or rule of this court requires such a hearing, but a trial court is authorized to provide one. La.C.Cr.P. art. 3. Had such a hearing been here held, much of the difficulties involved in deciding the issues raised by the present appeal may well have been avoided.

      . By a 1975 amendment, our legislature permitted joinder and trial of two or more offenses by the same indictment, contrary to our former practice and theory. La.C.Cr.P. art. 493 (1975). One of the justifications advanced for this “federal” rule of liberal joinder is that, thereby, the defendant will receive a greater opportunity to receive concurrent rather than consecutive sentences. ABA Standards Relating to Joinder and Severance, Standard 1.1 (1968) Commentary 1.1(a) (1968); Note, 74 Yale L.J. 443, 555 (1965).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Thomas J. ABRAM.
    No. 60244.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Jan. 27, 1978.

      Thomas W. Davenport, Jr., Davenport, Files, Kelly & Marsh, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant Thomas John Abram was charged by bill of information with the possession of marijuana with intent to distribute. He was found guilty after trial by jury and sentenced to serve eight years at hard labor and to pay a fine of $2500.00.

During the afternoon of Saturday, July 24, 1976, defendant registered at the Rode-way Inn in West Monroe, Louisiana. He registered in the name of his brother (Samuel L. Abram) and gave his father’s address rather than his own, but he gave the correct description of his car, its license tag and his own driver’s license number. After paying the rental for one night’s stay, he was given the key to Room 130. Defendant then went to the room and placed there some personal toilet articles and a large plastic garbage can containing approximately seventeen pounds of marijuana, a scale and some plastic bags. He rested in his room for several hours, then returned to the motel desk and requested the occupancy of the room for more than the one night. He was told by the desk clerk that the room was available and that he could pay the additional rental when he checked out. The clerk marked the registration card “layover,” pursuant to motel policy. The defendant then left, apparently not returning to the motel until the early morning hours of Tuesday, July 27, 1976.<

On the afternoon of Monday, July 26, 1976, Gene Porter, a traveling salesman and frequent guest at the Rodeway Inn, arrived at the motel and requested his usual room for the night — Room 130. The desk clerk checked the registration cards and found that Room 130 was occupied, so she assigned Mr. Porter to Room 140. She then noticed that Room 130 was marked “clean and vacant” on the maid’s list. Apparently believing the room to be vacant, she then changed the registration card and gave Mr. Porter a key.

Upon entering Room 130, Mr. Porter noticed the garbage can left by the defendant, removed its lid, and examined its contents. He then called the desk and asked the clerk to summon the police. Officer Roy Dale Smith of the West Monroe Police Department arrived at Room 130 shortly thereafter and was invited into the room by Mr. Porter. The lid was not on the can when Officer Smith entered the room. After seeing the contents of the can and believing the substance to be marijuana, the officer contacted the Morehouse-Ouachita Parish Strike Force. Narcotics agents from that special investigative unit had Mr. Porter assigned to a different room and then set up a surveillance of Room 130. The surveillance was discontinued around midnight that night and the officers reentered the room and took possession of the garbage can.

One and a half or two hours after the surveillance was terminated, the defendant returned to Room 130, discovered that his property was missing and went to the desk to complain. The clerk called the police. When the police arrived, the defendant was arrested. At the time of the arrest, the defendant was in possession of a plastic bag containing ten marijuana cigarettes.

Assignment of Error No. 1

This assignment was taken to the trial court’s denial of a motion to suppress evidence seized in the motel room. Defendant characterizes the warrantless search and seizure as one based on the consent of Mr. Porter and argues that his consent is not sufficient to justify the invasion of the defendant’s privacy.

It is now well settled that it is people and their privacy, not specific places, that are subject to the protection of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. ,507, 19 L.Ed.2d 576 (1967); State v. Fearn, 345 So.2d 468 (La.1977); State v. Cote, 337 So.2d 1067 (La.1976,); State v. Nine, 315 So.2d 667 (La.1975), Article 1 § 5 of the La.Const. of 1974 provides similar protection. Searches conducted without the prior approval of a jpdgfe or magistrate are constitutionally impermissible unless there is applicable one of the “well delineated” exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Lain, 347 So.2d 167 (La.1977); State v. Hearn, 340 So.2d 1365 (La.1976).

Consent to search, one of these exceptions, may well be explained in terms of the expectation of privacy. A person who consents to a search clearly could not be heard to complain of the violation of his privacy. Similarly, the invasion of privacy may be justified by the consent of “. a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); see Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); State v. Johnson, 343 So.2d 155 (La.1977). In these circumstances, a person’s expectation of privacy is severely limited by the joint dominion or authority over the property. The question presented in the instant case, therefore, is whether the defendant’s expectation of privacy was violated by the search of his possessions.

In Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), a similar issue was presented. In Stoner police officers, armed with probable cause to arrest the defendant, but not with a search warrant, approached the night clerk of the hotel in which the defendant was staying, and requested admission to the defendant’s room. The clerk consented, went to defendant’s room with the officers, and unlocked the door. The search conducted by the officers produced evidence used at trial. The United States Supreme Court, in discussing this violation of the defendant’s rights, stated:

“It is important to bear in mind that it was the petitioner’s constitutional right which was at stake here, and not the night clerk’s nor the hotel’s. It was- a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.
“No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed., 436. That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. It follows that this search without a warrant was unlawful. . . . ” 376 U.S. at 489-90, 84 S.Ct. at 893.

The court, however, recognized that the defendant’s expectation of privacy was not absolute:

“It is true, as was said in Jeffers, that when a person engages a hotel room he undoubtedly gives ‘implied or express permission’ to ‘such persons as maids, janitors or repairmen’ to enter his room ‘in the performance of their duties.’ [United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59] 342 U.S. at 51, 72 S.Ct. at 95, 96 L.Ed. 59. But the conduct of the night clerk and the police in the present case was of an entirely different order. ...” 376 U.S. at 489, 84 S.Ct. at 893.

In the present case, as in Stoner, the defendant had rented a motel room — a place of public accommodation. As in Stoner, his expectation of privacy would render a search instigated and conducted by police solely on the consent of an employee unconstitutional. However, this expectation of privacy does not preclude the validity of the search and seizure eondiicted under the peculiar facts of this case.

The defendant, in taking a room at a motel, could reasonably expect maintenance personnel to enter the room. By leaving the room unattended for forty-eight hours without prepayment of rental, the defendant might also run the risk of the motel management concluding that he had “skipped.” This fact, compounded with the risk of good faith clerical errors in multi-unit motels, limits the expectation of privacy reasonably accorded the defendant. It is significant to note that the defendant’s possessions were kept in an ordinary covered garbage can, not generally associated with personal belongings, rather than in a suit case or other container readily identifiable as belonging to another.

In the present case, there is no indication that the rental of defendant’s room to Mr. Porter was anything except a good faith error on the part of motel personnel. Mr. Porter rented the room, occupied it as a good faith possessor, clothed with the apparent dominion and control over its contents. His act of opening the garbage can and looking inside was not unreasonable, because conceivably the can was supplied by the motel for the convenience of its guests. Mr. Porter, on his own initiative, had the police called. When the officer arrived, he was invited into the room by its apparent occupant and viewed the contents of the then open garbage can.

Defendant’s expectation of privacy did not protect against the possibility of an accidental reassignment of the room, thus the entry of Mr. Porter was not violative of the defendant’s constitutional rights. Searches conducted by private persons do not fall within the protection of the Fourth Amendment. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Winbush, 428 F.2d 357 (6th Cir. 1970) cert. den. 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157; State v. Hutchinson, 349 So.2d 1252 (La.1977). The search conducted by Mr. Porter was not violative of the Fourth Amendment. Further the search of the defendant’s garbage can did not, under the circumstances of this case, infringe upon an area of his privacy protected by Art. 1 § 5 of the La.Const. of 1974.

The fact that the police did not immediately remove the marijuana is of no significance; the seizure was effectively executed when the police took control and dominion of the room and its contents. The salutary policy underlying the exclusionary rule, that of discouraging governmental overreaching and unwarranted intrusion upon reasonable expectations of privacy, would not be served by the suppression of this evidence.

The assignment is without merit.

Assignment of Error No. 2

The defendant contends that the trial court erred in ruling that the confession made after his arrest was free and voluntary. According to the defendant, the garbage can contained not only marijuana but also a bank bag with $1500.00 cash. This money was never located, and there is no proof of its existence other than the testimony of the defendant. During the trial, in a hearing to determine the volun-tariness of the confession held outside the presence of the jury, the defendant testified that he was told by the police after his arrest that he would have to make a statement before they would investigate the missing money. The defendant contends that this inducement renders the statement involuntary.

The defendant was forty-two years old (at the time of sentencing) and had a high school education. He does not deny that he was advised of his rights at the time of the arrest, nor does he deny that he could have been informed of his rights on other occasions. The arresting officer testified that he advised the defendant of his rights at least three times prior to the statement. The trial judge’s ruling on the admissibility of the confession was not error. State v. Payne, 338 So.2d 682 (La.1976).

The assignment is without merit.

Assignment of Error No. 3

Defendant contends that the trial court erred in admitting into evidence photocopies of the motel registration cards and a transcript of the recorded confession without the introduction of the original cards and the recording of the confession.

The unavailability of both items was adequately explained. The makers of the items testified at trial to establish the accuracy of the reproductions. While the photocopy of the registration form depicted only a portion of the form, it was all that was available and the maker was capable of testifying as to the contents of the missing portions. Secondary evidence was admissible. R.S. 15:437; State v. Simmons, 328 So.2d 149 (La.1976); cf. State v. Auzenne, 305 So.2d 507 (La.1975).

Assignment of Error No. 4

The defendant contends that the trial court erred in refusing to advise the jury of the possible penalty for the crime charged and of the possible penalties for the responsive verdicts.

Under Louisiana jurisprudence, it is not error for the trial court to refuse a requested charge on a discretionary penalty. See State v. Hodges, 349 So.2d 250 (La.1977); State v. Milby, 345 So.2d 18 (La.1977); State v. Prater, 337 So.2d 1107 (La.1976); State v. Chatman, 337 So.2d 1106 (La.1976); State v. Unzueta, 337 So.2d 1102 (La.1976).

This assignment is without merit.

Assignment of Error No. 5

Defendant contends that his sentence of eight years imprisonment and fine of $2500.00 is excessive and in violation of Art. 1 § 20 of the La.Const. of 1974.

The sentence imposed in the present case does not violate any rights afforded the defendant by Art. 1 § 20. The trial judge at sentencing noted that the defendant was a fourth offender. Additionally, the large amount of contraband involved — approximately seventeen pounds — indicates the severity of the offense committed. The sentence was not excessive. See State v. Progue, 350 So.2d 1181 (La.1977); State v. Bryant, 347 So.2d 227 (La.1977).

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

      . The protection afforded by Art. 1 § 5 of our Constitution is not, however, merely coextensive .with that afforded by the Fourth Amendment. See State v. Hutchinson, 349 So.2d 1252 (La.1977); cf. State v. Overton, 337 So.2d 1201 (La.1976).

      . Cf. C.C. 3451.

      . In Barnes v. United States, 373 F.2d 517 (5th Cir. 1967), the owner of a motel in which the defendant stayed overnight searched a travel bag left in the room. He became suspicious of its contents and contacted the police. The Fifth Circuit Court of Appeals held that the search did not involve governmental action and thus was not illegal within the meaning of the Fourth Amendment.
      In United States v. Blanton, 479 F.2d 327 (5th Cir. 1973), the defendant’s bag was left unclaimed for sever'al hours in an airport baggage area. An airline employee opened the bag in order to determine the owner. When he opened an attache case found inside the bag, he saw what appeared to be a pistol and silencer. The bag was closed by the employee and the police and federal authorities were notified. Before the officers arrived, the defendant appeared at the airport to claim the bag whereupon he was asked to remain until the federal authorities arrived. When the federal officer appeared, he was given the bag. He opened it and saw the silencer and gun. In response to the defendant’s argument that a new, second search was made when the federal officer opened the bag, the Fifth Circuit stated:
      . . the initial search was made by a private person and the events which later transpired did not constitute a separate or additional search which could be equated with a search proscribed by the two-part test of the Fourth Amendment: (1) an unreasonable search (2) by a state or federal officer. It is not clear from our opinion in the Barnes case [Barnes v. United States, 373 F.2d 517 (5th Cir. 1967)] whether the bag was left open by the hotel owner or reopened by the police but this happenstance is insufficient to convert an otherwise private search into an unreasonable official search in the immediate circumstances which were present there and which are present here. The Barnes opinion states that the motel owner made ‘it’, meaning the bag, available to the officers. That is precisely what happened in the instant case.” United States v. Blanton, 479 F.2d 327, 328.
      See also United States v. Lamar, 545 F.2d 488 (5th Cir. 1977); United States v. Maxwell, 484 F.2d 1350 (5th Cir. 1973).

      . See the discussion of United States v. Blan-ton, 479 F.2d 328 (5th Cir. 1973), in note 3, supra.

      . In the writer’s view the jury has a right to know, and should be informed of the possible penalties. This view, however, is contrary to that of a majority of this court.


author: PER CURIAM.

text:
    STATE of Louisiana v. J. L. GALLOW.
    No. 60470.
    Supreme Court of Louisiana.
    Dec. 27, 1977.
    Rehearing Denied Jan. 27, 1978.
    Preston N. Aucoin, Ville Platte, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Preston George DEMOUCHET, Jr. and Jerry Paul Francis.
    No. 60039.
    Supreme Court of Louisiana.
    Dec. 27, 1977.

      Paul J. deMahy, Willis & Hardy, St. Mar-tinsville, for Jerry Paul Francis.
    Gerald C. deLaunay, Logan & deLaunay, Lafayette, for Preston George Demouchet, Jr.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendants were charged by bill of information with the armed robbery of one Beverly Chauffe, a teller at the St. Martin Bank and Trust Company on May 26, 1976. R.S. 14:64. Proceedings were initiated against them in the Sixteenth Judicial District Court for the Parish of St. Martin but were thereafter transferred to the Parish of St. Mary after a successful motion for a change of venue. Following a trial by jury defendants were found guilty as charged. They were each sentenced to ninety-nine (99) years at hard labor in the custody of the Department of Corrections without benefit of parole, probation or suspension of sentence. In support of their appeal to this Court defendants Francis and Demouchet have respectively filed nine (9) and ten (10) assignments of error. We have found merit in none of these assignments and accordingly affirm defendants’ convictions and sentences.

ASSIGNMENT OF ERROR NO. 1 (DEMOUCHET)

In this assignment defendant De-mouchet alleges that the trial court erred when it refused to grant a motion to quash based on the state’s failure to adequately amend its response to the defendant’s bill of particulars (Art. 532 C.Cr.Pr.).

In its initial response to Demouchet’s Motion for a Bill of Particulars the state declared that the dangerous weapon used in the armed robbery was “a pistol.” After a hearing on defendant’s request for a more complete answer before the Honorable C. Thomas Bienvenu, Jr., the state was ordered to give defendant a more complete description of the weapon. The state’s amended answer indicated that defendant had been armed with “a revolver.” The defendant’s Motion to Quash was denied by the Honorable Robert E. Johnson who was of the opinion that the defendant was not entitled to such information.

There is no merit in this assignment. As the category “revolver” is more definitive than “pistol” we find the state’s compliance with the order sufficient. Certainly the more particularized response in no event can be construed as such a failure to furnish a sufficient bill of particulars as would warrant quashing the information.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2 (DEMOUCHET)

ASSIGNMENT OF ERROR NO.

1 (FRANCIS)

In these assignments both defendants contend that the trial court erred in refusing to excuse a juror, Bernard Pelle-rin, for cause (partiality, C.Cr.Pr. art. 797(2)) after the juror testified that he had had several things stolen from him in the past and that he therefore had a “tendency to have a grudge” against thieves.

This Court has consistently held that the trial judge is vested with wide discretion in determining the qualifications of jurors to serve at a trial, and absent a clear showing of abuse of this discretion the ruling will not be disturbed on appeal. State v. George, 346 So.2d 694 (La.1977); State v. Jones, 315 So.2d 650 (La.1975).

Our view of the voir dire examination of the juror Pellerin indicates no abuse of discretion in the ruling. Whatever doubts concerning the juror’s impartiality surfaced in answer to the defendant’s questions were sufficiently dispelled by answers to questions later posed by the trial judge. The juror clearly stated that he could reach a decision in the case based solely on the evidence presented in court. These assignments lack merit.

ASSIGNMENT OF ERROR NO. 3 (DEMOUCHET)

ASSIGNMENTS OF ERROR NOS. 2 AND 3 (FRANCIS)

In these assignments defendants allege that the trial court erred in admitting into evidence a copy of a document colloquially referred to as a “bait list” which was used to link certain of the stolen money to the defendants. A “bait list” is a list of the serial numbers of particular Federal Reserve notes kept on hand by bank tellers. The list thus may identify money taken in a given robbery. Defendants allege that allowing the introduction of a copy of such list is in violation of the best evidence rule. R.S. 15 :43b. We find no merit in this contention. In State v. Stuart, 344 So.2d 1006, 1009 (La.1977) this Court in response to an almost identical contention said, “. . . where a document offered in evidence is a mechanical reproduction of the original, and is thus the substantial equivalent of the original, admission over objection is reversible error only upon a showing that the content of the purported copy does not accurately reflect that of the original.” As no such showing was made in the present case we find defendants’ contention without merit.

Defendants also contend in these assignments that the trial court erred in admitting into evidence testimony by the bank’s vice-president relative to this same document. Defendants contend that the bank officer had no personal knowledge of the list’s accuracy as he himself had not prepared it. We also find this contention without merit. Although the witness had not prepared the list personally he was well acquainted with the signature on the list and was therefore able to establish the list s authenticity under R.S. 15:460. This statute provides:

Any document, other than an authentic act, may be proved by any one who saw it written, or by a comparison of hands, or by any one who, from his knowledge of the handwriting of the person alleged to have written the document can testify that the document produced is in the handwriting of said person.

These assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 8 (DEMOUCHET)

In these assignments defendant Demou-chet contends that the trial court erred in admitting into evidence state’s exhibits 3 and 21 respectively.

State exhibit 3 is a photograph taken by a bank surveillance camera depicting defendant Demouehet leaving the bank with a brown paper bag in his hand. The state introduced the testimony of one Wallace Trew to establish the identity of the picture. Mr. Trew testified that he withdrew the film from the surveillance camera in St. Martin’s Bank and Trust Co. and took it to have it developed immediately after the robbery occurred. He was accompanied by an F.B.I. agent. They delivered the film to the developer and waited for the negatives. After viewing the negatives the F.B.I. agent selected several frames for enlargement, one of which later became state exhibit 3. Defendant contends that a proper foundation was not laid for the exhibit in that Mr. Trew was not present in the dark room when the pictures were developed and he therefore could not say whether the pictures produced by the developer were from the film taken from the bank camera.

It is well established in our jurisprudence that for admission of demonstrative evidence, “it suffices if the foundation laid established that it is more probable than not that the object is connected with the case. State v. Williams, 343 So.2d 1026 (La.1977); State v. Brown, 326 So.2d 839 (La.1975). In the present case we determine such a foundation was laid through the testimony of Mr. Trew. Furthermore any defect alleged by defendants was later cured by the testimony of the person who developed the pictures. Therefore, assignment of error number four is without merit. State v. Williams, supra.

In assignment of error number eight defendant Demouehet alleges that the trial court erred in admitting into evidence state exhibit 21, a card containing the palm print of Demouehet. The objection to this exhibit is also based' on an alleged improper foundation. Defendant contends that the F.B.I. agent who identified the palm print could not properly do so since the only mark of identification on the card was the notation “F.B.I. — Houston,”. Additionally, it is contended, the agent was not an expert in the field.

This assignment is also without merit. The F.B.I. agent who allegedly took the print sufficiently identified the print based on his recognition of his own handwriting on the print which he affixed before mailing it to Washington, D.C. Furthermore, the F.B.I. agent in Washington who received the palm print card also testified at defendant’s trial that the card was received in the same envelope with defendant’s fingerprint card and that she marked them together for identification. In view óf the testimony of these witnesses we find that it was sufficiently shown by the state that the palm print card was more probably than not connected with the crime. State v. Williams, supra.

ASSIGNMENT OF ERROR NO. 9 (DEMOUCHET & FRANCIS)

In assignment of error number nine defendants contend that an improper foundation was laid for one of the state’s exhibits, number 22, in that no attempt was made to show a chain of custody. The exhibit consisted of eleven $20.00 bills seized by the police from a car salesman who had received the money from defendants’ as payment for an automobile. The state relied on the initials of the seizing officer and the date of the seizure placed on the bills when they were seized, to establish their identity. Defendants contend that this identification was faulty in that there were discrepancies between the eleven bills and the serial numbers written on the receipt given for the eleven bills.

This assignment lacks merit. In addition to chain of custody an acceptable method of identifying evidence is by visual identification, i. e. by testimony at the trial that the object is one related to the case. In the present case the state sufficiently identified the evidence by the seizing officer’s placement of his initials and date of seizure thereon as to make it properly admissible. In this case, when nine of eleven bills bore serial numbers which coincided with numbers appearing on the receipts any discrepancy between the bills and the receipt given for them affected the weight of the evidence and not its admissibility.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 6 (DEMOUCHET)

ASSIGNMENTS OF ERROR NOS. 4 AND 5 (FRANCIS)

By these assignments defendants allege that the trial court erred in admitting into evidence the identification of the defendants by state’s witnesses Eugene Thomas and Adley Champagne.

The witness Thomas, over defendant’s objection, testified that he had seen the defendants in a car parked outside of the bank on the morning of the robbery. Defendants contend that this in-court identification by Mr. Thomas was improperly admitted because it was based solely on an allegedly suggestive out-of-court identification. The witness apparently had seen photographs of the defendants prior to trial on top of a desk in the St. Martin Parish Sheriff’s Office. Our review of the record relevant to the incident in the Sheriff’s Office leaves us unsure as to whether any unduly suggestive actions were taken by law enforcement personnel. However, even were we to find that the procedures were improperly suggestive we would nevertheless still find no error in admitting the identification of the defendants by Mr. Thomas as it was substantially founded on a source independent of the incident in the St. Martin Parish Sheriff’s Office.

In State v. Frank, 344 So.2d 1039 (La.1977) this Court reiterated the factors to be considered in determining the independent basis of an in'-court identification. At page 1042 of that opinion this Court stated:

In this determination, three factors are relevant: (1) the prior acquaintance of the witness with the accused; (2) the length of time the witness observed the perpetrator before, during, and after the commission of the offense; (3) the circumstances under which the observation was made, i. e., the illumination at the scene, the witness’s physical capacities, and the witness’s emotional state at the time of the observation. State v. Fortenberry, La., 307 So.2d 296 (1975); State v. Moseley, La., 284 So.2d 749 (1973); State v. Newman, La., 283 So.2d 756, supra.

In the present case Mr. Thomas testified that although each viewing of the defendants on the day of the crime was for a very short period he had occasion to see them three different times that morning. The witness also stated that he had seen the defendant before. We therefore pretermit any issue of suggestiveness with our determination that the in-court identification of Mr. Thomas was founded on a basis independent of that possibly suggestive incident. The testimony was properly admitted.

In these assignments a similar objection as that discussed above is raised by defendants relative to the testimony of Mr. Adley Champagne. The testimony of this witness was intended to place the defendants not only in the area of the bank but also in the bank itself. Defendants again urge the inadmissibility of this testimony due to a possibly suggestive out-of-court identification. We reach an identical conclusion, however, relative to this witness’ testimony as we did concerning that of the witness Thomas.

The occurrences which defendants contend were improperly suggestive need not be considered at this time. The witness saw the defendants twice on the morning of the robbery; once in the bank for several minutes, and once in a car outside his place of employment. For these reasons we find that a basis sufficiently independent of any possibly suggestive out-of-court identification existed which warranted the admission of Mr. Champagne’s testimony.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 7 (DEMOUCHET AND FRANCIS)

Defendant Francis complains in this assignment of error of the court’s allowing Mrs. Rose Marie Francis to identify the subject of a bank surveillance photograph as being her son the defendant Jerry Francis.

Defendant Demouchet’s assignment of error number seven complains of the trial court’s allowing Cynthia Tobey, Louis Schexnayder and Gilbert Richard to identify him in the same photographs.

Before we further explain the nature of the complaint, the law we deem applicable and our appraisal of the assignments it is well that we discuss the character and extent of the testimony offered by the four above named witnesses at defendants’ trial.

Mrs. Francis was not present in the bank which defendants allegedly robbed either before, during, or after the commission of the crime. She saw the photographs taken by the bank surveillance camera on the front page of the local newspaper and called the police to identify one of the persons depicted in those photographs as being her son Jerry Paul Francis. After receiving this call from Mrs. Francis the police went to her house to question her further. During the questioning she gave the police several items of the defendant’s Francis’ clothing which were allegedly identical to those worn by the suspect in the photograph (See Francis’ assignments six and eight, infra) and again tearfully acknowledged that one of the photographs on the front of the newspaper was of her son Jerry Paul Francis.

Miss Tobey was not present at the bank on the day of the crime either. For reasons not apparent in the record she was called to the New Iberia Police Station on the day of the robbery for the purpose of identification because of her knowledge of Preston Demouchet. It appears that Miss Tobey had attended school with Demouchet and had known him “very well” for approximately eight (8) years prior to the crime. At the police station she made a definite identification of Preston Demouchet in the photographs.

Louis Schexnayder and Gilbert Richard were, respectively, the owner and salesman at a used car lot in New Iberia. Each had had several dealings with defendant De-mouchet concerning the purchase of a used car during the weeks surrounding May 26, 1976, the day of the crime.

At defendant’s trial each of the witnesses (except Mrs. Francis whose viewing had been earlier) viewed photographs taken by the bank surveillance camera and either identified one of the defendants as being depicted therein or stated that they had previously made such photographic identification.

Defendants objected to these identifications and the testimony of Mrs. Francis relative to her post crime photographic identification on the basis that such was an issue within the sole province of the jury and that it was inadmissible as opinion evidence under R.S. 15:463.

Our research on this issue has revealed almost exclusively Federal Court decisions. Most of these decisions have concerned opinion identification testimony offered by experts: United States v. Brown, 501 F.2d 146 (9th Cir. 1974); United States v. Cairns, 434 F.2d 643 (9th Cir. 1970). However, two very recent cases have concerned opinion identification testimony by lay witnesses: United States v. Butcher, 557 F.2d 666 (9th Cir. 1977) and United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976). While finding no rule which expressly forbids the use of such testimony, each court noted a certain apprehension over the use of such testimony in the absence of special circumstances.

As we view the legal issues herein we can not agree with defendants’ contention that the rules prohibiting lay opinion testimony are pertinent or dispositive here.

The identification testimony of Mrs. Francis and Miss Tobey was essentially factual in nature. Each gave testimony based on special knowledge and experience concerning the respective identities and/or appearances of the defendants. This special knowledge and experience provided each witness with a peculiar facility not possessed by the members of the jury, which made their observations concerning the subjects in the photograph particularly reliable. Therefore, the admission of such identification testimony was not error as it was reasonable, relevant and helpful to the jury.

We acknowledge that the above analysis may not be applicable to witnesses Schex-nayder and Richard as neither could claim a knowledge of the defendants particularly superior to that'of the jurors. However, even assuming that their identifications were impermissible, for whatever reason, there was no significant prejudice to the defendants (surely not such as to warrant reversal of the convictions) in light of the similar photograph identification by Mrs. Francis and Miss Tobey.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 10 (DEMOUCHET)

In defendant Demouchet’s final assignment of error he alleges that the trial judge erred in allowing one of the state’s witnesses, Bonnie Stasko, to testify as an expert in a field outside of her expertise.

Our review of the witness’ testimony relative to her qualifications clearly indicates that the witness was sufficiently qualified to testify as an expert in the field of fingerprint analysis and that her testimony was limited to her field of expertise. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 6 (FRANCIS)

In this assignment Francis alleges that the following evidence should not have been admitted due to an insufficient foundation: a pair of brown boots, a white “hard hat” and a pair of men’s coveralls.

As noted in our discussion of assignments four and eight such evidence is admissible if the foundation laid establishes that it was more probably than not an object connected with the case. State v. Williams, 343 So.2d 1026 (La.1977); State v. Brown, 326 So.2d 839 (La.1975); State v, Isaac, 261 La. 487, 260 So.2d 302 (La.1972). The foundation for the items listed above was laid by the state through the testimony of Captain Landry. This witness testified that he had been given the items by defendant Francis’ mother, and that he had brought them to the station, marked and tagged them for evidence and photographed them. This testimony more than sufficiently constitutes a proper foundation for the introduction of the items listed above.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 8 (FRANCIS)

Defendant Francis contends in this assignment that the trial court erred in admitting state exhibit eight, a white bandana handkerchief, into evidence. Defendant again bases his assignment on the state’s alleged failure to lay a proper foundation for the evidence.

This assignment also lacks merit. Our review of the records indicates that the state clearly established that this exhibit was more probably than not connected with the case.

Decree

For the reasons stated above the convictions and sentences of defendants Preston Demouchet, Jr. and Jerry Francis are affirmed.

AFFIRMED.

      . R.S. 15:436 provides:
      The best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced.

      . It should be noted that the bank teller who prepared the “bait list” was unable to testify at the defendants’ trial because of injuries she received during the robbery. Additionally, the witness who testified as to the teller’s signature had worked with the teller for a period of six years prior to the incident and had observed her signature on a daily basis.

      . R.S. 15:463 provides:
      Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.


text:
    STATE of Louisiana v. Robert P. GAINES, Roynell Joshua and Quinton Joshua.
    No. 59998.
    Supreme Court of Louisiana.
    Jan. 10, 1978.
    J. Daniel Rivette, Orleans Indigent Defender Program, Joseph Neves Marcal, III, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Timothy Cerniglia, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE and CALOGERO, JJ., dissent.


text:
    STATE of Louisiana v. Henry ANDERSON, Jr.
    No. 61241.
    Supreme Court of Louisiana.
    Jan. 5, 1978.
   In re: Henry Anderson, Jr., applying for writ of review. Parish of Orleans.

Writ denied. The appeal is pending. LSA-C.Cr.P. Art. 363.


text:
    Percy M. ALEXANDER, Jr., Receiver, et al. v. BURROUGHS CORPORATION.
    No. 61106.
    Supreme Court of Louisiana.
    Jan. 5, 1978.
   In re: Percy M. Alexander, Jr., Receiver, et al. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 350 So.2d 988.

Writ granted. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Henry ANDERSON, Jr.
    No. 61244.
    Supreme Court of Louisiana.
    Jan. 5, 1978.
   In re: Henry Anderson, Jr., applying for remedial writs. Parish of Orleans.

Denied; this application is a copy of # 61241, this day denied.


text:
    STATE of Louisiana v. George D. METZLER.
    No. 61319.
    Supreme Court of Louisiana.
    Jan. 5, 1978.
   In re: George D. Metzler applying for writs of certiorari, mandamus, prohibition and stay order. St. Bernard Parish.

Writ granted. Trial Judge should have granted recess for the purpose of taking the testimony of four additional witnesses on the motion to suppress. Resumed suppression hearing to be conducted prior to trial.


author: SANDERS, C. J.,

text:
    STATE of Louisiana v. Salvadore OVELLA.
    No. 61027.
    Supreme Court of Louisiana.
    Jan. 5, 1978.
   In re: Salvadore Ovella applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

Denial of writ set aside as inadvertent. Writ granted and all proceedings stayed.

SANDERS, C. J.,

dissents from granting of writ and the vacating of the denial previously issued.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank V. Zacearía, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 19th day of January, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.

Denial of writ set aside as inadvertent. Writ granted and all proceedings stayed.

SANDERS, C. J., dissents from granting of writ and the vacating of the denial previously issued.


text:
    Lester V. QUINE, Jr. v. IDEAL CEMENT COMPANY.
    No. 61180.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Lester V. Quine, Jr. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of E. Baton Rouge. 351 So.2d 1303.

Denied.


text:
    ETHYL CORPORATION v. COLLECTOR OF REVENUE.
    No. 61168.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Ethyl Corp. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1290.

Writ denied.

SUMMERS, J., dissents.


text:
    Roger GUIDRY et al. v. Leo TOUPS et al.
    No. 61142.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Roger Guidry, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 351 So.2d 1280.

Writ denied.


text:
    Howard N. CRAWFORD, Jr. v. O. H. DESHOTELS et al.
    No. 61159.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Frankie Boutte McDaniel and 0. H. Deshotels, Jr. applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 351 So.2d 295.

Granted. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Donald L. MOSS et al. v. TRAVELERS INDEMNITY CO.
    No. 61164.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Travelers Indemnity Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 351 So.2d 290.

Writ denied.


text:
    Annette E. BLUM v. ALLSTATE INSURANCE CO. and Magnifique Volkswagen, Inc.
    No. 61144.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Allstate Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 351 So.2d 283.

Denied.

TATE, J., dissents.


text:
    A. G. ALIZZI and June McNeely Alizzi v. EMPLOYERS INSURANCE OF WAUSAU and Kenneth Dubose.
    No. 61187.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Kenneth Dubose applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine. 351 So.2d 258.

Writ denied.

SANDERS, C. J., and SUMMERS, J, would grant the writ.