author: MARCUS, Justice. DIXON, J.,

text:
    STATE of Louisiana v. Calvin WILLIAMS.
    No. 61629.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Ivan L. R. Lemelle, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Robert F. Barnard, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Calvin Williams and Carl Williams were charged in the same indictment with the first degree murder of Keith Norse. The state elected to try Calvin Williams separately. After a trial by jury, Calvin Williams was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt; and the jury unanimously recommended a sentence of life imprisonment without benefit of probation, parole or suspension of sentence. The trial judge sentenced defendant in accordance with the recommendation of the jury. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the state presented no evidence to prove that he was guilty as a principal to the crime of first degree murder. This alleged error was urged by defendant as a basis for his motion for a new trial which was denied by the trial judge.

Pursuant to La.R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid or abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are guilty as principals. State v. Lovett, 359 So.2d 163 (La.1978); State v. Willis, 322 So.2d 169 (La.1975); State v. Broussard, 312 So.2d 325 (La.1975). This court’s review of a denial of a motion for a new trial based on an allegation of no evidence is limited to a determination of whether there is some evidence to support a verdict. State v. Sheppard, 350 So.2d 615 (La.1977).

The record reveals that, on the evening of December 28, 1976, Keith Norse (the victim), Norbert Matthews, Frederick Gibson and Thaddeus Griffin departed from a neighborhood lounge where they had seen defendant and his brother Carl earlier in the evening. After walking a short distance, Matthews left Norse, Gibson and Griffin to return to his home. As the three men continued on, they were approached by defendant and his brother, whereupon Carl Williams at gunpoint ordered Norse to stop and fired a shot at him. Gibson and Griffin immediately fled from the scene but Griffin, after running some distance, turned and observed Carl Williams holding Norse. Two or three additional shots were fired. Griffin continued to run but turned a second time to observe what was transpiring. As he did so, defendant fired at him. In the meantime, Gibson had caught up with Matthews and related to him that defendant and his brother had shot Norse. They returned to the scene of the crime where they discovered Carl Williams standing over the victim’s body with defendant several feet behind. The victim was still breathing at the time. On seeing Matthews and Gibson approaching, defendant and his brother fled. The victim had been shot three times in the head and once in the left hand. Death was caused by a bullet passing through his brain. Subsequently, a green army fatigue jacket which had been worn by defendant during the commission of the crime was recovered by the police and in one of the pockets a .38 caliber gun was discovered. Defendant was later arrested and charged with the first degree murder of Norse; Carl Williams was never apprehended.

Our review of the record convinces us that there was some evidence that defendant was guilty as a principal to the crime of first degree murder in that he directly participated in the crime and/or aided and abetted in its commission. Accordingly, the trial judge did not err in denying defendant’s motion for a new trial on this ground.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in permitting the state to introduce in evidence a green army fatigue jacket allegedly worn by defendant during the commission of the crime. He argues that the jacket was not properly identified as being related to the case.

At trial, Norbert Matthews, Frederick Gibson and Thaddeus Griffin testified that, when the crime was committed, defendant was wearing a green army fatigue jacket, blue jeans, a knit hat and glasses. All three witnesses stated that the jacket exhibited to them at trial was the same or similar in appearance to that which was worn by defendant during the commission of the instant offense. Subsequently, Officer Martin Venezia of the New Orleans Police Department testified that a search warrant was executed at the residence of defendant’s mother who informed the police that defendant was also living at that address. During the search of the residence, the police seized a green army fatigue jacket in the pocket of which was discovered a .38 caliber gun. Officer Venezia tagged and initialed the jacket and stored it in the evidence locker at the police station where it remained until brought to court on the day of trial. Over defense objection, the trial judge allowed the jacket to be admitted in evidence.

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. State v. King, 355 So.2d 1305 (La.1978); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971). For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. State v. King, supra; State v. Provost, 352 So.2d 661 (La.1977); State v. Williams, 341 So.2d 370 (La.1976); State v. Collins, 328 So.2d 674 (La.1976). Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the jury. State v. King, supra; State v. Hayes, 306 So.2d 705 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Dotson, supra; State v. Wright, 254 La. 521, 225 So.2d 201 (1969).

Defendant’s contention that the jacket was not properly identified as being related to the case is without merit. The witnesses to the crime testified that the jacket was the same or similar in appearance to that worn by defendant during the commission of the crime. Moreover, the jacket was properly stored from the time of its recovery from defendant’s residence until brought to court on the day of trial. Clearly, it was more probable than not that the jacket was related to the case. Hence, the trial judge properly permitted its introduction in evidence.

Defendant also contends the trial judge erred in admitting the jacket in evidence over his objection on the ground that it was unlawfully seized pursuant to an invalid search warrant. He argues that the search warrant was invalid in that it was based on hearsay information. No motion to suppress the evidence was filed by defendant either before or during trial.

Under La.Code Crim.P. art. 703, when a tangible object is sought to be excluded from evidence because of an unconstitutional search and seizure, a defendant must file a motion to suppress the evidence. Otherwise, he is deemed to have waived any objection to its admission in evidence based on an infirmity in the search and seizure. State v. Jones, 340 So.2d 563 (La.1976); State v. Keys, 328 So.2d 154 (La.1976); State v. Womack, 283 So.2d 708 (La.1973); State v. Cormier, 272 So.2d 686 (La.1973); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972); State v. Lawrence, 260 La. 169, 255 So.2d 729 (1971); State v. Wallace, 254 La. 477, 224 So.2d 461 (1969). Since no motion to suppress was filed in the present case, defendant’s objection to the admission of the jacket in evidence based on the alleged unlawful search and seizure was waived.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in denying his motion for a mistrial grounded on the claim that the prosecutor repeatedly attempted to elicit hearsay evidence from a state witness on rebuttal. He argues that this alleged pros-ecutorial misconduct prejudiced his defense and thereby necessitated the granting of a mistrial.

At trial, the defense called to the stand Mrs. Albertha Scott who testified that she had observed defendant’s brother, Carl Williams, knock the victim of the crime to the ground and shoot him. She stated that defendant was not present during the commission of the crime. On cross-examination by the state, the witness denied that shortly after the crime was committed she had informed the police that an individual named Willie Norwood and an unidentified black male had committed the crime. She likewise denied that a few days after the crime she had told the police that both defendant and his brother were responsible for the murder.

To rebut Mrs. Scott’s testimony, the state recalled to the stand Officer Martin Vene-zia who testified that during the early morning hours after the crime was committed he had received information relative to the murder from Mrs. Scott. When the witness was asked what information Mrs. Scott had relayed to him, defense counsel objected to the question on the ground of hearsay. The trial judge sustained the objection. Thereafter, the officer testified that he had again conversed with Mrs. Scott a few days after the murder at which time he received information concerning defendant and his brother. The state then asked Venezia to state what this information was. Again defendant’s objection on the ground of hearsay was sustained. Further attempts by the prosecutor to elicit from the officer the content of statements made by Mrs. Scott to him regarding who had committed the murder likewise were objected to by defense counsel. The state argued that the statements made by the defense witness to the police were admissible as prior contradictory statements to impeach the witness’ testimony at trial. Nevertheless, the trial judge again sustained the defense objections. Subsequently, Venezia was asked whether the information which he had received from Mrs. Scott relative to the instant offense was inconsistent with her trial testimony and with information which had been furnished to him by other witnesses to the crime. Defendant reurged his objection to this inquiry and moved for a mistrial. The trial judge sustained the objection but denied the motion for a mistrial. Thereafter, he asked defense counsel if he wished for the jury to be admonished. Defense counsel replied in the negative.

Each side has the right to impeach the testimony and the credibility of every witness sworn on behalf of the 'other side. La.R.S. 15:486. The credibility of a witness may be impeached by prior contradictory statements. La.R.S. 15:493 provides:

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

In the instant case, Mrs. Scott denied that she had made statements to the police regarding who had committed the instant offense which were inconsistent with her trial testimony. The state, therefore, had laid a proper foundation for impeachment of the defense witness’ testimony by proof of prior contradictory statements. Although the trial judge sustained defendant’s hearsay objections to questions posed by the state to Officer Venezia on rebuttal, the questions were proper since the state thereby sought to introduce evidence of pri- or contradictory statements made by Mrs. Scott to impeach her credibility. Because the questions posed by the prosecutor were proper, they did not warrant the granting of a mistrial. In any event, in view of the fact that the trial judge sustained defense objections to the questions and offered to admonish the jury which offer was declined by defense counsel, defendant cannot claim to have suffered any prejudice from the prosecutor’s interrogation of the witness. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for a new trial grounded on the claim that he had discovered after trial new and material evidence consisting of the testimony of Roy Milton Smith which allegedly contradicted the trial testimony of Thaddeus Griffin, an eyewitness to the crime.

At trial, Thaddeus Griffin testified that, on the evening of December 28, 1976, as he was walking with Norbert Matthews, Frederick Gibson and Keith Norse through a housing project, he heard gunshots and immediately fled. After running a short distance, he looked back and saw defendant’s brother holding Norse. Griffin continued to run but looked back a second time to observe what was happening. As he glanced back, he saw defendant point a gun and fire a shot at him.

At the hearing on defendant’s motion for a new trial, the defense called as a witness Roy Milton Smith who testified that he was driving near the scene of the crime when he saw Griffin running toward his vehicle. As he stopped his car, he heard a noise and simultaneously saw a flash. Immediately, he fell to the floor of the car and Griffin jumped into the vehicle. He and Griffin then drove off. Smith stated that he did not see who had fired the shot, explaining that the gunshot took him by surprise. At the conclusion of the witness’ testimony, defense counsel contended that this evidence contradicted Griffin’s testimony at trial that he had seen defendant fire a shot at him. He argued that, since both Griffin and Smith had the same vantage point from which to observe who had fired the shot and yet Smith had testified that he did not see who had fired the gun, it followed that Griffin likewise did not see who had shot at him contrary to his testimony at trial. Rejecting defense counsel’s argument, the trial judge denied the motion for a new trial.

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

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

This court has consistently held that the trial judge is accorded considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its reliability, and his ruling will be disturbed on appeal only where there is a clear showing of abuse of discretion. In considering a motion for a new trial based on newly discovered evidence, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Lovett, 359 So.2d 163 (La.1978); State v. Provost, 352 So.2d 661 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977); State v. Brown, 338 So.2d 686 (La.1976).

In the instant case, although Smith testified that he did not see who had fired the shot, he explained that the events surrounding the shooting caught him by surprise which impaired his ability to observe who was responsible for the shooting. Therefore, Smith’s testimony did not in fact contradict that of Griffin adduced at trial that Griffin saw defendant fire at him. If anything, Smith’s testimony corroborated Griffin’s assertion that Griffin had been shot at. Hence, we conclude that this evidence produced by defendant at the new trial hearing was not so material that it would have produced a different result than the verdict reached. Accordingly, the trial judge did not err in denying defendant’s motion for a new trial.

Assignment of Error No. 5 is without merit.

DECREE

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

DIXON, J.,

concurs, disagreeing with the treatment of illegal seizure argument in Assignment # 3.

      . Defendant has neither briefed nor argued Assignment of Error No. 2. Therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Abraham THOMAS.
    No. 61630.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Henry P. Julien, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Donald MORRIS a/k/a John Edward Morris.
    No. 61631.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lucille JOHNSON.
    No. 61633.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Joseph WILSON.
    No. 61634.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick Noriea, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

The Orleans Parish Grand Jury returned a two count indictment charging the defendant with distribution of heroin on April 10, 1975 and August 14, 1975. Wilson was found guilty as charged on the first count and guilty of attempted distribution on the second count; pursuant to the jury verdict the court imposed a sentence of life imprisonment without benefit of probation or parole for the first count and a twenty year concurrent sentence for the second count. Five assignments of error are considered upon the Court’s review of Wilson’s convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

As filed in the record, these assignments complain the trial court erred in denying defendant the right to be tried by a' fair and impartial judge and the right to a fair, impartial trier of the law.

The circumstances giving rise to Assignments Nos. 1 and 2 are these. Wilson originally waived his right to trial by jury, as Article I, § 17 of the Louisiana Constitution of 1974 authorizes a defendant in a noncapi-tal case to do. Upon satisfying itself that Wilson’s waiver was knowingly and intelligently made, the trial court called for opening statements. The content of the defense’s opening statement revealed that the defense of entrapment would be urged. After hearing the opening statements the trial judge recognized that such a defense would render credibility a crucial issue and announced that he was predisposed to be-Heve the State’s principal witness who had previously testified before him rather than the defense version, the general tenor of which the court felt it had heard when it reviewed the interrogation of a potential witness, conducted for the purpose of determining whether he would be allowed to assert his Fifth Amendment privilege. Based on his firm predisposition rendering fair and impartial consideration an impossibility, the trial judge recused himself, stating that he would request assignment of a judge from another parish to conduct the bench trial Wilson elected.

After being apprised that the proper procedure in the case of his recusal was appointment of another judge of the Criminal District Court, Parish of Orleans, the trial judge conducted a status hearing at which he stated his belief that appointment of another judge of the same court would place the defendant in the same position as if he himself tried the case. The defense, while indicating agreement that the other judges of the court would likely share the bias expressed by the trial judge, expressed doubt that another judge would recognize or acknowledge the existence of such bias and respond by recusing himself. Because of its misgivings, the defense elected to remain in the original section of court, notwithstanding the judge’s previously expressed reservations. The judge reiterated that his recusation was imperative if there was to be a bench trial, because of his opinion of the credibility of the witnesses. In response to the judge’s steadfast position, the defense withdrew its election of a bench trial, despite its persistence in its desire to have the judge try the facts as well as the law, in order to avoid trial in other sections of the court. The court noted the defense objection to its decision maintaining the necessity for recusation. Three weeks later, the previously recused judge presided over the jury trial which resulted in Wilson’s conviction.

As a general proposition, a judge’s power and authority to act in a case terminates at the time he recuses himself. State v. Price, 274 So.2d 194 (La.1973). However, the cause for recusation in the instant case was the judge’s stated inability to fairly and impartially decide the issue of the entrapment defense. Entrapment is a defense on the merits, a matter within the province of the trier of fact. State v. Murray, 357 So.2d 1121 (La.1978). The restoration of the jury mode of trial in this case, effected when Wilson withdrew his election of a bench trial, worked to neutralize the judge’s bias. Absent a defense motion for a change of venue, by means of which the defense could have attempted to substantiate the existence of bias on the part of all the other judges of the Criminal District Court for the Parish of Orleans to which the trial judge alluded, Wilson’s assent to a jury trial operated as a waiver of any right he may have had to complain of bias or prejudice. The facts and circumstances which are pertinent to these assignments fail to establish a denial of a right to a bench trial by a fair, impartial judge or denial of the right to a fair, impartial trier of law in the jury trial which took place. These assignments lack reversible merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 10

These assignments assert that two allegedly prejudicial comments by the prosecutor mandated the mistrial sought.

During opening statement the State’s attorney noted that surveillance of the narcotics transaction which formed the basis of the second count of distribution charged had been conducted by a law enforcement official, Officer Brady, who died in a fire at Parish Prison and thus would not be present to testify regarding his observations. Defense objected to these statements, claiming that the prosecutor was improperly arguing inferences in connection with a non-testifying witness. The court agreed with the objection, whereupon defense moved for a mistrial which was denied. Before permitting the State to resume its opening statement the court cautioned against statements regarding anything a non-testifying witness would have related. The denial of the mistrial sought is the subject of Assignment No. 3.

Assignment No. 10 is based on the denial of a mistrial sought after the State attempted to have its witness testify regarding the whereabouts of Officer Brady, who had conducted the surveillance of the August 14, 1975 transaction. The court sustained objection to the inquiry, but the State protested that the jury was entitled to the information. The ruling sustaining the objection was based on hearsay grounds, and was followed by the defense mistrial motion which the court denied.

In neither instance did the remarks of the prosecutor constitute grounds for mandatory mistrial under Article 770 or Article 775 of the Code of Criminal Procedure. In the first instance, the court admonished the state to refrain from attempts to outline matters about which no witness would testify. In the second case, the court also sustained the defense objection and disallowed hearsay testimony of Officer Brady’s whereabouts.

Mistrial is a drastic remedy, unwarranted if not mandatory unless a trial error substantially prejudices the defendant, depriving him of a fair trial. State v. Russell, 352 So.2d 1289 (La.1977). No deprivation of a fair trial resulted from the prosecutor’s remarks which are the subject of defendant’s complaints. These assignments are without merit.

ASSIGNMENT OF ERROR NO. 12

After the trial court pronounced the sentence of life imprisonment “without benefit of parole, probation” as punishment for the crime of distribution of heroin, the defense objected, urging that the life sentence and the statute mandating it are unconstitutional. That objection is the subject of this assignment.

Before focusing attention on the subject matter of Assignment No. 12, the asserted unconstitutional excessiveness of the life sentence imposed for the crime of heroin distribution when committed by an addict, the Court notes, ex proprio motu, that the sentence imposed for distribution does not conform with the appropriate penalty provision of Louisiana Revised Statute 40:966 applicable to this prosecution. The applicable provision, that which existed prior to the statute’s amendment in 1977 by Act 631, provided for a sentence of life imprisonment at hard labor and allowed, as an option, the imposition of a fine. The statute then did not bar parole or probation. Thus, the sentence pronounced exceeded the statutory requirements. We are thereby prompted to set aside the sentence and remand for sentencing in strict conformity with the applicable penalty provision of the statute Wilson was found to have violated. See State v. Lindsey, 351 So.2d 1178 (La.1977).

In the past, the Court has repeatedly held that the mandatory life sentence for heroin distribution set forth in Louisiana Revised Statute 40:966 does not constitute cruel, excessive and unusual punishment in violation of the United States and Louisiana Constitutions. State v. Sykes (La.1978) No. 61,403; State v. Hopkins, 351 So.2d 474 (La.1977); State v. Whitehurst, 319 So.2d 907 (La.1975). However, the Court recently granted writs in State v. Terrebonne, 359 So.2d 199 (La.1978) and State ex rel Mallery v. Blackburn, 360 So.2d 875 (La.1978) in order to review the exces-siveness claims previously rejected. In both cases, the defendants were apparently addicts, as Wilson professes to be; the Court’s inquiry in the Terrebonne and Mallery cases will focus on excessiveness as it relates to this class of heroin distributors. See State v. Terrebonne, 354 So.2d 1356 (La.1978) (Tate, J., concurring opinion).

Upon resentencing in the trial court, Wilson will have the opportunity to urge the excessiveness of the legal sentence imposed and seek this Court’s review on the issue at that time.

Decree

For the reasons hereinabove stated, the defendant’s convictions and his twenty year sentence for attempted distribution are affirmed; the sentence imposed for the crime of distribution is vacated and set aside, and the case is remanded to the district court for resentencing in accordance with the applicable provisions of Louisiana Revised Statute 40:966.

CONVICTION AND SENTENCE FOR ATTEMPTED DISTRIBUTION OF HEROIN AFFIRMED; CONVICTION FOR DISTRIBUTION OF HEROIN AFFIRMED BUT SENTENCE SET ASIDE, AND CASE REMANDED FOR RE-SENTENCING.

      . The defense filed thirteen assignments of error but Assignments Nos. 4, 5, 6, 7, 8, 9, 11 and 13 are not briefed and are therefore considered abandoned. State v. Burge, 359 So.2d 616 (La.1978).

      . The State’s principal witness, Officer Larry Taplin, functioned in an undercover capacity over a period of time in connection with a major law enforcement drug campaign, Operation Topcat. Numerous arrests and narcotics prosecutions were the outgrowth of this law enforcement effort; in connection therewith Taplin testified on innumerable occasions, apparently in every section of Criminal District Court. His repeated appearances in the various sections of court were felt by the judge to create bias in the State’s favor in cases where there would be reliance upon his testimony.

      . The transcript of the sentencing reveals that the trial judge had considered placing Wilson on probation; thus, the sentence imposed did not preclude probation consideration, but merely decided the matter adversely to defendant. The judge did pronounce sentence “without benefit of parole”. Louisiana Revised Statute 15:574.4B provides unequivocally that no inmate serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years. Notwithstanding the fact that, by operation of other law, parole consideration would actually be withheld from this defendant laboring under the disability of a life sentence, we require that sentence be pronounced in conformity with the applicable penalty provision.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Everett Lee BANKS.
    No. 61647.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      S. P. Davis, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Donald C. Brown, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Everett Lee Banks and John Edmond were charged in the same information with armed robbery in violation of La.R.S. 14:64. Defendants waived trial by jury and elected to be tried by the court. After a bench trial, each defendant was found guilty of simple robbery. Everett Lee Banks was sentenced to serve four years at hard labor. John Edmond was sentenced to serve five years at hard labor. This appeal is by Everett Lee Banks only. He relies on nine assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in denying his motion for a new trial.

First, defendant argues that his motion for a new trial should have been granted on the ground that the verdict was contrary to the law and the evidence. It is well settled that such an allegation presents nothing for this court’s appellate review. State v. Drew, 360 So.2d 500 (La.1978); State v. Cass, 356 So.2d 936 (La.1977); State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977); State v. Jack, 332 So.2d 464 (La.1976).

Secondly, defendant argues that a new trial should have been granted because no evidence was presented to support his conviction. This court’s review of a denial of a motion for a new trial based on an allegation of no evidence is limited to a determination of whether there is some evidence to support the conviction. State v. Sheppard, 350 So.2d 615 (La.1977). During trial in the instant case, the victim of the alleged robbery clearly testified that defendant and his accomplice, who held a pistol, forcefully took his money from him. Hence, we find some evidence to support defendant’s conviction.

Thirdly, defendant argues that the evidence was such that defendant was not proven guilty beyond a reasonable doubt. The scope of this court’s appellate jurisdiction in criminal matters extends only to questions of law. La.Const. art. 5, § 5(C). A contention such as presented here that defendant’s guilt has not been proven beyond a reasonable doubt is an attack on the sufficiency of the evidence, which is a question of fact. State v. delaBeckwith, 344 So.2d 360 (La.1977). The jurisprudence is uniform in holding that we have no jurisdiction to pass on the sufficiency of the evidence in a criminal case. See, e. g., State v. delaBeckwith, supra; State v. Reeves, 342 So.2d 605 (La.1977); State v. Jack, supra.

Finally, defendant contends that a new trial should have been granted because the state failed to timely make an opening statement.

After the state and defendant announced that they were ready for trial, but before presentation of any evidence, defendant objected to the state’s failure to make an opening statement. After argument, the objection was withdrawn by defense counsel; nonetheless, the state made an opening statement.

At the outset, we note that defendant withdrew his objection prior to the ruling thereon and thereby waived any complaint of this matter on appeal. Secondly, the state did, in fact, make an opening statement. Thirdly, the statement was made prior to presentation of any evidence by the state in accordance with La. Code Crim.P. art. 765. Finally, we note that no error would have occurred even had the state failed to make an opening statement in this bench trial, absent a showing by defendant of unfair surprise. State v. Spot, 340 So.2d 1349 (La.1976); State v. Bolen, 338 So.2d 97 (La.1976). Hence, there is no merit to this contention.

In sum, the trial judge did not err in denying defendant’s motion for a new trial.

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion for a judgment of acquittal.

At the close of the state’s case, defendant argued that the state offered no evidence to support the crime charged. This court can find error in the trial judge’s denial of a motion for a judgment of acquittal and reverse the conviction only where there is no evidence of the crime or an essential element thereof. State v. Edwards, 351 So.2d 500 (La.1977); State v. Reeves, 342 So.2d 605 (La.1977); State v. Credeur, 328 So.2d 59 (La.1976); State v. Marks, 337 So.2d 1177 (La.1976); State v. Douglas, 278 So.2d 485 (La.1973).

In the instant case, the victim of the alleged robbery clearly testified that defendant and his accomplice, who held a pistol, forcefully took his money from him. Hence, we find some evidence of each element of the crime.

In brief to this court, defendant argues that, because of the state’s failure to timely make an opening statement, the trial judge should not have considered the evidence offered by the state in making his ruling on defendant’s motion for a judgment of acquittal. There is no merit to this contention for reasons previously assigned in connection with our disposition of Assignments of Error Nos. 1 and 2.

In sum, the trial judge did not err in denying defendant’s motion for a judgment of acquittal.

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 6

Defendant contends the trial judge improperly curtailed his right to cross-examine a state witness, the victim of the robbery.

During direct examination by the state, the victim identified some currency as “like” the money taken from him in the robbery. On cross-examination, defendant asked the victim if he could identify this currency as the money taken from him. The victim replied that he could so identify it due to the particular way it was folded. Defendant then asked:

So, if I took one of these tens out of my pocket and put it over there, could you tell me which one is which?

The victim answered, “No —” At this point, the state objected to the questioning as beyond the bounds of proper cross-examination. Defendant explained to the court that he wished to point out that the victim, a mentally retarded person, could not possibly identify the currency produced in court as the money taken from him in the robbery. In conclusion, the following colloquy, occurred:

[Defendant]:
Your Honor, I think the point is this: [the victim] identified that money as his and I think I’ve put my point across without trying to go out of bounds.
The Court:
The Court is aware of, of course, what you were trying to prove. And the court is also aware of the condition under which this cross examination is being conducted.
Do you need to pursue that matter any further?
[Defendant]:
No, sir, I just want the Court to understand it. I can’t do it like I’d like to do it. I’m trying to refrain from doing that.
On the other hand, I’ve got to be as serious as I can be.
The Court:
I understand. If you do not need to go into it any further, why do you not go ahead—
[Defendant]:
As long as the point is made, that’s sufficient.
The Court:
All right, sir.

Defendant then continued cross-examination of the victim.

Also during cross-examination, defendant asked the victim on several occasions if he owned a pistol. The victim consistently answered in the negative. Finally, the state objected to defendant’s badgering the witness on that matter. The trial judge said to defendant, “I think you have been polite, but you have asked it a number of times and the same response has been given each time.” Defendant replied, “All right.” Cross-examination continued.

In brief to this court, citing the above related incidents, defendant argues that his right to cross-examine the victim was improperly curtailed by the trial judge.

At the outset, we note that defendant acquiesced in the trial judge’s disposition of both incidents. Hence, he has no cause to complain of these matters on appeal. Moreover, in the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross. La.R.S. 15:275. The rulings of the trial judge in respect to the scope and extent of cross-examination will not be disturbed on appeal absent a strong showing of abuse of discretion. State v. George, 346 So.2d 694 (La.1977); State v. Nero, 319 So.2d 303 (La.1975); State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972). We find no such abuse here. Hence, the trial judge did not improperly curtail defendant’s right to cross-examine the victim.

Assignments of Error Nos. 4 and 6 are without merit.

ASSIGNMENT OF ERROR NO..5

Defendant contends the trial judge erred by curtailing his right to cross-examine the victim and impeach his credibility due to denial of his request to call the victim as a defense witness.

During the state’s ease-in-chief, the victim of the alleged robbery testified as a state witness and was thoroughly cross-examined by defendant. After the state rested its case, defendant called several persons as defense witnesses. The testimony of, these witnesses was contrary to that of the victim in some respects. Defendant then announced his intention to call the victim to the stand as his own witness. The state requested an explanation of defendant’s purpose in calling the victim as a defense witness and said that, if the purpose was merely to “rehash” his previous testimony, the state would object to the procedure as unnecessary. A discussion followed, during which defendant stated that he wished to call the victim to the stand for impeachment purposes and that he wished the judge, who was “deciding the case,” to hear the victim’s testimony after having heard the contrary testimony of two defense witnesses. The trial judge stated: “That’s the whole point. It’s up to me to decide the case and decide the issues that are before this Court.” In conclusion, defendant argued:

—Although we probably don’t have a right to call [the victim] back, to be sure that the Court understands when he was on direct examination, which [the state] is willing to stipulate, that he did emphatically deny any knowledge of that pistol. .

The trial judge replied: “Well, that goes to the question of argument. I’m quite aware of that.” Defendant was not allowed to call the victim as a witness.

It is not clear whether defendant wished to recall the victim for further cross-examination or to actually call the victim as a defense witness. In either case, we do not find that reversible error occurred.

We first consider defendant’s right to recall the victim for further cross-examination. The right to recall a witness for further cross-examination is within the sound discretion of the trial judge whose ruling thereon will not be disturbed on appeal absent a showing of an abuse of that discretion. State v. Simmons, 340 So.2d 1357 (La.1976); State v. Bankston, 165 La. 1082, 116 So. 565 (1928).

In the instant case, the victim was thoroughly cross-examined by defendant during the state’s case-in-chief. Defendant had the opportunity to impeach the credibility of the victim at that time. Under these circumstances, we are unable to say that the trial judge abused his much discretion by refusing to permit defendant to recall the victim for further cross-examination.

Next, we consider the right of defendant to call the victim as a defense witness.

At the outset, we note that it is improper to require an accused to state the purpose for which he calls a witness. Rather, the trial judge should allow the witness to be called and placed under oath and then exercise “sound discretion to stop the prolonged, unnecessary and irrelevant examination” of the witness. La.R.S. 15:275.

However, in the instant case, any such error is not reversible. Defendant’s avowed purpose for calling the victim as a witness was to further cross-examine him and attempt to impeach his credibility. Defendant could not properly have accomplished this purpose if the victim were his own witness.

When an opposing party calls as its own a witness who previously testified for the other, the party who calls the witness is subject to the same limitations of examination and impeachment as in the case of any other witness called by such party. State v. Monk, 315 So.2d 727 (La.1975). Hence, defendant would not have been able to cross-examine the victim as his own witness. Nor could defendant impeach the credibility of the victim absent a showing of surprise or hostility. La.R.S. 15:487 and 488. Since the victim had previously testified as a state witness, it is unlikely that defendant could have made the requisite showing of surprise or hostility necessary for impeachment of the credibility of the victim as his own witness. State v. Monk, supra.

In any event, we note that the instant trial was before a judge alone, acting as trier of both law and fact. As the trial judge explained during the proceedings, he was fully aware of the inconsistencies between the testimony of the victim and that of defense witnesses. No further purpose would have been served by calling upon the victim to reiterate his previous testimony. Defendant was not unduly prejudiced by the trial judge’s refusal to allow defendant to call the victim as a defense witness. Any error was harmless. La.Code Crim.P. art. 921.

In sum, Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in making two comments during trial which indicate his predisposition to find defendant guilty of the alleged robbery.

During trial, defendant testified on his own behalf. At this time, the trial judge warned all witnesses of the consequences of committing perjury. Also, after the presentation of all evidence, the trial judge summoned both state and defense witnesses into the courtroom and again warned them of the consequences of committing perjury.

At the outset, we note that the record reveals no objection to the comments. In the absence of a contemporaneous objection, an alleged irregularity or error in the proceeding cannot be availed of after conviction. La.Code Crim.P. art 841; State v. Robertson, 358 So.2d 931 (La.1978); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975). In any event, we find no merit to defendant’s contention that the warnings given by the trial judge to all witnesses of the consequences of committing perjury indicate any predisposition on his part to find defendant guilty of the alleged robbery.

Assignment of Error No. 7 is without merit.

ASSIGNMENTS OF ERROR NOS. 8 AND 9

Defendant contends the trial judge erred in not allowing him, while testifying on his own behalf, to see an exculpatory letter he had written to his counsel and also erred in admitting the letter in evidence.

During trial, defendant testified on his own behalf concerning events on the date of the alleged robbery. On cross-examination, the state attempted to impeach defendant’s credibility by use of the exculpatory letter at issue as a prior inconsistent statement. Defendant admitted writing a letter to his counsel concerning events on the date of the alleged robbery and recalled the time and place the letter was written. He also admitted the possibility that the letter was not entirely consistent with his trial testimony. Upon further questioning about the letter, defendant asked to see it. Extensive oral argument was held concerning the use of the letter for impeachment purposes and defendant’s right to see the letter. Finally, the state showed a letter to defendant, who identified it as the one he had written to his counsel. The state began to question defendant about specific statements in the letter, which defendant admitted having made. These statements were not entirely consistent with defendant’s pri- or testimony at trial. The state then asked to introduce the letter in evidence, to which defendant initially objected. However, after reviewing the letter, defendant stated:

[I’m] not going to object to this one bit. I wouldn’t mind it being read into the record. Anything the Court wants to do.

The letter was read aloud and admitted in evidence.

Defendant’s contention that the trial judge erred in refusing to allow him to see the exculpatory letter is without merit since the record reveals that the state did in fact show defendant the letter.

Regarding defendant’s contention that the trial judge erred in admitting the letter in evidence, we note that defendant withdrew his objection to admission of the letter in evidence prior to any ruling thereon. He thereby waived any complaint of this matter on appeal. State v. Franklin, 332 So.2d 238 (La.1976).

DECREE

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

SUMMERS, J., concurs.

DIXON, J., concurs, disagreeing with treatment of Assignment # 5.


text:
    STATE of Louisiana v. Almeca BARRETT.
    No. 61654.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Milton P. Masinter, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Richard Weston DICK.
    No. 61658.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Allen A. McElroy, Jr., McElroy & Ramsey, Ltd., Berwick, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Walter J. Senette, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Richard Weston Dick was charged by two separate bills of information with the crimes of possession with intent to distribute marijuana in violation of La.R.S. 40:966 and possession of amphetamines in violation of La.R.S. 40:967. Defendant’s motion to suppress physical evidence seized pursuant to a search warrant was denied after a hearing. Thereafter, defendant withdrew his former plea of not guilty and pled guilty to possession of amphetamines, reserving his right to appeal the ruling of the trial judge denying his motion to suppress. State v. Hutchinson, 349 So.2d 1252 (La.1977); State v. Crosby, 338 So.2d 584 (La.1976). Defendant’s qualified plea of guilty was accepted by the trial judge. Defendant was sentenced to serve three years at hard labor; however, the trial judge suspended execution of sentence and placed defendant on supervised probation for a period of eighteen months. As a special condition of probation, defendant was to serve sixty days in the parish jail and to pay the costs of the proceedings which conditions were made executory in the event of an unsuccessful appeal to this court. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence. Finding merit to Assignments of Error Nos. 1, 2, 3 and 5, we reverse defendant’s conviction and sentence for reasons hereinafter set forth.

Defendant contends the trial judge erred in curtailing his examination of certain witnesses at the suppression hearing concerning the informer who had supplied information to the police which furnished the basis for the issuance of a warrant for the search of defendant’s motel room.

On August 18, 1977, a search warrant was issued authorizing the search of Room 143 of the Twin City Motel in Morgan City which was registered to Betty DesRoches, defendant’s mother. At the time defendant was living there with his mother. The affidavit which supported the issuance of the search warrant recited that an informer, who had proven reliable in the past and had furnished information which led to arrests and convictions, had that date informed the affiants, Captain James L. Manning and Detective Frank P. Mula, Jr., of the Morgan City Police Department, that he had seen a certain amount of green, vegetable-like substance which he believed to be marijuana in the motel room. It was further stated in the affidavit that a sample of the material was given to affiants which, when tested, proved to be marijuana. The substance was believed to be stored in a small plaid suitcase. Acting under the authority of the warrant, two members of the Morgan City Police Department conducted a search of the motel room and seized therein amphetamines and a quantity of marijuana along with the necessary items to roll and to distribute the substance. Defendant subsequently was arrested and charged with the instant offenses.

Defendant filed a motion to suppress the evidence seized pursuant to the search warrant in which he alleged, inter alia, that the affidavit which supported the issuance of the warrant recited untrue allegations concerning the reliability of the informer and that the information furnished by the informer to the police had been unlawfully obtained. At the suppression hearing, defendant called to the stand Detective Mula who testified that he and Captain Manning had received the information recited in the affidavit from an informer who had given reliable information in the past. Defense counsel questioned the officer as to whether David Arcemont, the owner and manager of the motel, was the informer. The state objected to this inquiry on the ground that the defense had failed to make a proper showing of exceptional circumstances to warrant disclosure of the identity of the informer. The trial judge sustained the objection. Mula was then asked if Arcem-ont had given him any articles on August 18, 1977. Again, the state objected to this question as an indirect attempt to ascertain the identity of the informer. The objection was sustained. Thereafter, Mula testified that the informer had removed from a multicolored zip-up suitcase located in defendant’s room a sample of marijuana which he delivered to the police.

Defendant next called to the stand David Arcemont and questioned him as to whether he had entered defendant’s room on August 18. The state objected to this question as being directed toward revealing the identity of the informer. The state’s objection was sustained. Subsequently, defense counsel asked Arcemont if he was the informer in the case. The state’s objection thereto likewise was sustained by the trial judge. The following colloquy then occurred between defense counsel and the witness:

Q. Do you remember having a conversation with me on the telephone, Mr. Ar-cemont?
A. Yes, I do.
Q. Do you remember speaking to me concerning this matter?
A. Yes.
Q. Did you admit during that conversation that you were an informer for the Morgan City Police Department?
A. Yes, sir, I did — an informant on that case that we talked about.
Q. Was that case this case?
A. Yes, it is.
Q. Are you the informer on this case?

The state reurged its objection to this inquiry which was similarly sustained. Ar-cemont later denied that he had conducted a search or had entered defendant’s room. When the witness was asked if he had confiscated any material from the room, the state objected to the question and the trial judge sustained the objection. Later during the suppression hearing, defense counsel was sworn as a witness and testified that Arcemont had admitted to him that he was the informer in this case. Arcemont was then recalled to the stand and again admitted that he had told defense counsel that he was the informer. When defense counsel asked the witness if he was the informer in the case, the state reurged its objection to the inquiry asserting its privilege against disclosure of the informer’s identity. The objection was sustained. Likewise, defense examination of Captain Manning and Detective Mula, who was recalled to the stand, concerning whether Arcemont was the informer was curtailed by the trial judge. Both police officers testified that only one informer had participated in the case. At the conclusion of the hearing, the trial judge denied defendant’s motion to suppress.

The questions posed by defense counsel to the witnesses at the suppression hearing were directed at eliciting testimony that Arcemont was the informer in this case, as Arcemont had previously admitted to defense counsel, and at determining how he had secured information that a quantity of marijuana was stored in a multicolored suitcase in defendant’s motel room which information supported the issuance of the warrant for the search of the room. In sustaining the state’s objections to these questions, the trial judge ruled that such information was protected from disclosure by the informer’s privilege. The informer’s privilege is the privilege of withholding the identity of an informer who supplies information to law enforcement officials concerning crime. It is founded upon public policy and its purpose is the furtherance and protection of the public interest in effective law enforcement. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Helmke, 350 So.2d 1191 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. delaBeckwith, 344 So.2d 360 (La.1977); State v. Robinson, 342 So.2d 183 (La.1977). However, this privilege granted to the government is not absolute but rather is limited by its underlying purpose. Roviaro v. United States, supra; State v. Helmke, supra. Thus, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable. Roviaro v. United States, supra.

In the instant case, the record clearly establishes that the identity of the informer was known to defense counsel and in fact had been disclosed to him by the informer himself, i. e., Arcemont. Hence, the state’s privilege in withholding from disclosure the identity of the informer ceased to exist. The state, therefore, could not assert the privilege during the suppression hearing and thereby prevent defense counsel from questioning the witnesses, particularly the informer, regarding the manner in which the informer obtained information which subsequently furnished the basis for the issuance of the warrant to search defendant’s room. Since the informer’s privilege was not applicable, defense counsel should have been permitted to interrogate the witnesses concerning all matters relevant to the issues raised by his motion to suppress, including the involvement of the informer in this case. We, therefore, conclude that the trial judge improperly curtailed defense counsel’s examination of the witnesses at the suppression hearing. Accordingly, we must reverse defendant’s conviction and sentence and remand the case to the trial court for further proceedings.

DECREE

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded to the Sixteenth Judicial District Court, Parish of St. Mary, for further proceedings consistent with the views herein expressed.

SUMMERS, J., dissents.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Andrew COLLINS.
    No. 61660.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      A. J. Boudreaux, Staff Appeals Counsel, 24th Judicial District Indigent Defender Bd., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., James D. Maxwell, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-appellee
   DENNIS, Justice.

The defendant, Andrew Collins, was convicted by a jury of armed robbery, La. R.S. 14:64, adjudged to be a multiple offender, and sentenced to fifty years at hard labor without benefit of parole, probation, or suspension of sentence.

For reversal of his conviction and sentence the defendant presents four assignments of error. Of these assignments only one need be discussed as the others clearly have no merit under the existing law.

Assignment of Error Number Seven presents the issue of whether the trial court improperly curtailed the scope of the defendant’s closing argument. A brief recitation of the facts surrounding the commission of the crime is necessary.

At approximately 9:00 p. m. on December 25, 1974, an armed man, later identified as the defendant, entered a convenience store in Kenner and demanded money from the elerks. At the time of the robbery seven persons were present in the store — three clerks and four customers. After ordering everyone to lie on the floor, the defendant left the store with a paper bag containing money taken from the cash registers. An off duty police officer observed the defendant exit holding a gun and a paper bag and enter an automobile driven by another person. After observing the occupants of the store lying on the floor the officer pursued the car and apprehended the defendant and the driver about eight blocks away. The defendant was brought back to the store where he was identified by two of the clerks, Dewey Pulliam and Calvin Milto.

Although seven persons were present in the convenience store during the robbery, the State called as witnesses only two of the clerks, Dewey Pulliam and Calvin Milto. Both men positively identified the defendant at the trial as the perpetrator of the robbery. During cross-examination Pul-liam testified that four customers who were present during the crime resided in Baton Rouge. He stated that he had given a list of their names and addresses to the district attorney. No testimony as to the whereabouts of the third clerk, Bobby Dickson, was elicited at the trial.

The attorney for the defendant made the following statement during his closing argument:

[Defense counsel]: “Let’s look at what the State has. The State seems quite confident that it has a very good case because it brought some witnesses out here, but, think back a moment. Do you remember what some of those witnesses said about others in the store? There were seven people in that store. How many did the State see fit to bring here today?”

An objection by the prosecuting attorney was sustained, and the defendant assigned as error the court’s refusal to allow his counsel to comment upon the State’s failure to call the witnesses.

The question presented by the ruling is whether, under the circumstances of the case, defense counsel was entitled to argue that the jury should invoke an inference adverse to the prosecution’s case because of its failure to call witnesses. It is related but not identical to the question of whether a party has a right to have such an inference explained in instructions to the jury, on proper request. Both questions depend upon a determination of whether the inference is allowable under the evidence of the particular case.

In fact, whether in a particular trial a party’s failure to call a witness may be used against him is so much a part of the context in which it arises that it is extremely difficult to formulate hard and fast rules which will govern in future cases. Rather than regarding judicial pronouncements in this area as rules, it is preferable to construe them as discussions and analyses of particular situations which may serve as guidelines for determining when the inference may be invoked in future cases. See, Pugh, Louisiana Evidence Law 716 (1974).

Accordingly, Professor McCormick has cautioned us against the development of elaborate rules of law defining the circumstances when the inference is allowed; and he has warned against “spinning a web of rules” for tight control of the argument on the inference:

“It is wiser to hold that if an argument on failure to produce proof is fallacious, the remedy is the usual one, namely the answering argument and the jury’s good sense. Thus the judge would be called on to intervene only when the argument can be said, under the general standard, to be not merely weak or unfounded, but unfair and prejudicial.” McCormick, Evidence, § 272 (2d ed. 1972).

It is evident from this court’s frequent approval of prosecutors’ arguments in this vein that we are in agreement with Professor McCormick and do not approve of the trial courts exercising tight control of the argument on the inference. E. g., State v. Pounds, 359 So.2d 150 (La.1978); State v. Hamilton, 334 So.2d 383 (La.1976); State v. Williams, 311 So.2d 850 (La.1975); State v. McNeal, 214 La. 664, 38 So.2d 378 (1948).

In passing on the question of when to curtail argument on the inference the trial judge has a substantial measure of discretion. However, in the instant case the trial court erred in sustaining the prosecution’s objection to defense counsel’s argument directing the jury’s attention to the failure by the State to produce the other witnesses to the robbery. There was a possibility that these other eyewitnesses had been unable to identify the defendant immediately after the robbery. The State’s sole reason for objecting to the argument was that the witnesses were in Baton Rouge. But the witnesses’ names and addresses had been furnished to the State shortly after the robbery and they could have been compelled to attend by subpoenas. Under these circumstances, an argument by defense counsel on the inference would not have been unfair or inappropriate.

Nevertheless, we are unable to find that the error complained of constituted a substantial violation of the defendant’s rights so as to warrant reversal of his conviction. La.C.Cr.P. art. 921. Defense counsel referred to the State’s failure to call the witnesses once before he was stopped by the objection. Later during the closing argument defense counsel stated:

“The State must prove its case beyond a reasonable doubt. The State is very cocky when it walks up here with its police officer and two witnesses and thinks they have done it. They stopped. That’s the end of it.”

At another point defendant’s attorney argued:

“ * * * I suggest to you that when you look at the discrepancies among the witnesses that the State has seen fit to put before you only those two or three with Officer Congemi and the other evidence man who didn’t really have anything to do with it, that’s all the State saw fit to bring to you today was those.”

A reading of his entire closing argument reveals that the defense counsel, in spite of the trial court’s prohibition, brought to the attention of the jury on several occasions the State’s failure to call all of the witnesses to the robbery.

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

      . Defendant originally designated seven assignments of error. Three of these have not been briefed or argued and are deemed abandoned.

      . Assignment of error number one deals with a motion to suppress out of court identifications; assignment number four deals with a request to inspect police reports; assignment number six deals with a denial of a motion for a directed verdict. An examination of the record reveals that these assignments are without merit.


text:
    STATE of Louisiana v. Johnny B. WRIGHT.
    No. 61673.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Paul J. Carmouche, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Tommy J. Johnson, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendant was charged by bill of information with simple kidnapping. La. R.S. 14:45. After trial by a six person jury the defendant was found guilty as charged and later sentenced as a multiple offender to serve seven years at hard labor. On appeal the defendant relies upon seven assignments of error.

We have reviewed the record and find no merit in the defendant’s assignments of error. Accordingly, the defendant’s conviction and sentence are affirmed.

SUMMERS, J., concurs.


text:
    STATE of Louisiana v. Alvin FISHER.
    No. 61686.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Fred S. Gahagan, Gahagan & Gahagan, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., S. Michael Henry, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant, Alvin Fisher, was charged with two counts of simple burglary. Under a plea agreement, he pleaded guilty to two counts of theft of property valued at $100 but less than $500. After receipt of a pre-sentence report, the trial judge sentenced the defendant to two years’ imprisonment on each count, the sentences to run concurrently.

On appeal to this Court, defendant relies upon two assignments of error for reversal of his sentence.

In these assignments of error defendant alleges that: (1) the sentence he received is excessive and (2) that LSA-C.Cr.P. arts. 875 and 877 are unconstitutional because they deny him due process and an absolute right of access to pre-sentence reports.

To raise an alleged irregularity or error on appeal, the defendant must contemporaneously object to the irregularity or error and state the grounds for his objection. Absent compliance with this procedure, the irregularity or error is waived. LSA-C.Cr.P. art. 841. As the defendant in the present case failed to object either when the court ordered the presentence investigation or when the court imposed sentence, he is precluded from raising these errors on appeal. See State v. Williams, La., 322 So.2d 177 (1975).

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

DIXON, J., concurs.


text:
    STATE of Louisiana v. James MARTIN.
    No. 61691.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Henry P. Julien, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: MARCUS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Jacob A. FABACHER.
    No. 61692.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Robert J. Zibilich, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Jacob A. Fabacher was charged in the same information with two separate counts of forgery in violation of La.R.S. 14:72. Defendant waived trial by jury and elected to be tried by the court. After a bench trial, defendant was found guilty as charged on both counts and was sentenced to serve three years at hard labor on each count which sentences were to be served concurrently. The court suspended execution of the sentences under the special condition that defendant serve the first year of the sentences in the parish prison. Defendant was further ordered to pay court costs of seventy dollars or to serve an additional thirty days in the parish prison. On appeal, defendant relies on four assignments of error for reversal of his convictions and sentences.

In brief to this court, defendant contends the trial judge erred in denying his motion to quash the bill of information grounded on the claim that more than two years had elapsed between the date of institution of prosecution and commencement of trial.

Defendant did not designate the denial of his motion to quash the information as an error to be urged on appeal. Hence, the alleged error is not before us for review. La.Code Crim.P. art. 844; State v. Provost, 352 So.2d 661 (La.1977). Nevertheless, we have examined defendant’s contention. Prosecution of this case was instituted by bill of information filed on May 17, 1974. La.Code Crim.P. art. 934(7). Thereafter, defendant filed motions for continuances on March 5, 1975, and May 11, 1976, which were granted by the trial judge on the same dates as they were filed. On October 21, 1976, more than two years after institution of prosecution but within one year of the court’s ruling on defendant’s motion for a continuance on May 11, 1976, trial was commenced.

La.Code Crim.P. art. 578 provides that, in non-capital felony cases, “no trial shall be commenced . . . after two years from the date of institution of the prosecution ..” In the instant case, more than two years elapsed between institution of prosecution by the filing of the bill of information on May 17, 1974, and commencement of trial on October 21, 1976. However, La.Code Crim.P. art. 580 provides for suspension of the time limitations set forth in article 578 in certain instances:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

This court has previously determined that a motion for a continuance filed by a defendant is a preliminary plea under the above provision which suspends the running of the periods of limitation established by article 578 until the court rules thereon. State v. Cranmer, 306 So.2d 698 (La.1975); State v. Harton, 292 So.2d 187 (La.1974). In the instant case, defendant filed a motion for a continuance on May 11, 1976 (six days before the running of the two-year time limitation for commencement of trial), which was granted by the court on the same date. Pursuant to La.Code Crim.P. art. 580, the state could have no less than one year after the court’s ruling on defendant’s motion for a continuance to commence the trial. Trial, in fact, was commenced on October 21, 1976, within one year of the court’s ruling on defendant’s motion. Hence, trial was commenced within the statutory time limits. The trial judge did not err in denying defendant’s motion to quash the bill of information.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion for a judgment of acquittal urged after the close of the state’s evidence.

La.Code Crim.P. art. 778 provides that, in a trial by the judge alone, the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on motion of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction. On a motion for a judgment of acquittal, our review is limited to determining whether there is a total lack of evidence to prove the offense or any element thereof. State v. Gibson, 359 So.2d 147 (La.1978); State v. Little, 353 So.2d 255 (La.1977); State v. Smith, 352 So.2d 216 (La.1977); State v. Bizette, 334 So.2d 392 (La.1976); State v. Shores, 334 So.2d 193 (La.1976).

In the instant case, defendant was charged in the same information with two separate counts of forgery in violation of La.R.S. 14:72 which provides in pertinent part:

Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.

Specifically, the information charged that defendant did wilfully and unlawfully (1) forge, with intent to defraud, a certain instrument purporting to have legal efficacy, to-wit: a check drawn on the Harvard Trust Co., Cambridge, Massachusetts, dated May 3, 1974, in the sum of $57,475, payable to the order of Land Development Research Company and signed by Jack Dickson and Arthur Bryant, each as purported makers thereof; and (2) issue and transfer, with intent to defraud, the above described forged writing which was known by defendant to be a forged writing.

Evidence adduced at the trial of this matter revealed that a series of twenty checks in consecutive order had been stolen from the Badger Company located in Cambridge, Massachusetts. One of these checks was filled in by defendant with the Land Development Research Company as payee in the sum of $57,475 and was stamped without authorization with the “facsimile signatures” of the comptroller and assistant comptroller of the Badger Company as the purported makers of the check by means of a machine signature plate. Subsequently, defendant opened an account with a $200 cash deposit at the Civic Center Branch of the Hibernia National Bank in New Orleans under the trade name of Land Development Research Company. He represented himself as Robert F. Varley, sole proprietor of the company, and as identification used a credit card which had been issued to a Robert F. Varley and which had been lost by that individual several months earlier. Later that same day, defendant, again representing himself to be Varley, went to the Mid-City Branch of the Hibernia National Bank (also located in New Orleans) and presented the above described forged check for deposit to the account which he had just previously opened at the Civic Center Branch.

We consider that the affixing to the check by defendant of the signatures of the purported makers of the check by machine signature plate without authorization constitutes some evidence of the crime of forgery charged in count one of the information, i. e., the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy. La.R.S. 14:72. Moreover, it was stipulated by and between counsel that, prior to transferring the forged check to the bank, defendant had endorsed the reverse side of the check as Robert F. Varley, sole proprietor of the Land Development Research Company. The forgery of the endorsement was not charged in the bill of information as one of the ways in which defendant committed the crime of forgery. However, introduction of evidence at trial without objection and in fact by stipulation of counsel that defendant had forged the endorsement on the check, which evidence varied from the aver-ments recited in the information, constitutes a waiver by defendant of any complaint on the basis of a variance between the allegations of the information and the evidence offered in support thereof. La. Code Crim.P. art. 488; State v. Glover, 304 So.2d 348 (La.1974). Proof of the forgery of the endorsement also constitutes some evidence of the crime charged in count one of the information.

We also find that defendant’s presentation of the forged check at the branch bank for deposit to the account which he had previously opened clearly constitutes some evidence of the crime described in count two of the information, i. e., issuing or transferring, with intent to defraud, a forged writing known by the offender to be a forged writing. La.R.S. 14:72.

Since we find some evidence of the offenses charged and each element thereof, the trial judge properly denied defendant’s motion for a judgment of acquittal. Assignment of Error No. 3 is without merit.

DECREE

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

TATE, J., assigns additional concurring reasons.

TATE, Justice,

concurring.

I concur in the majority opinion. However, I expressly note that the issue has not been raised and we do not pass upon whether an accused can receive multiple sentences for what is essentially the same offense, the forging of a check and its subsequent issuance and transfer. Since in the present case the defendant received concurrent sentences, no prejudice was sustained in this judge-trial by the prosecutor’s treatment as multiple offenses of what is arguably only one illegal transaction.

      . Assignments of Error Nos. 1, 2 and 4 are expressly abandoned by defendant in brief to this court; therefore, they will not be considered.


text:
    STATE of Louisiana v. Lester SCOTT.
    No. 61710.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Randy D. Elkins, Marshall R. Pearce, Minden, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, First Asst. Dist. Atty., for plaintiff-appel-lee.
   PER CURIAM.

The defendant, Lester Scott, was convicted of first degree murder, LSA-R.S. 14:30, and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence.

There are five assignments of error, four of which depend upon whether there was appreciable evidence of an overt act on the part of the victim before the defendant attacked him. See State v. Lee, La., 331 So.2d 455 (1976). The trial judge found no such evidence. We agree with his ruling.

The remaining assignment of error is considered abandoned as it was neither briefed nor argued. State v. Phillips, La., 337 So.2d 1157 (1976). The conviction and sentence are affirmed.

SUMMERS, J., concurs.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. David E. DUKE and James K. Warner.
    No. 61712.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      John Wilson Reed, New Orleans, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William W. Hall, Shirley Wimberly, Asst. Dist. Attys., Abbott J. Reeves, Director, Research and Appeals Div., Gretna, for plaintiff-respondent.
   SANDERS, Chief Justice.

The State charged David E. Duke and James K. Warner with inciting to riot and failing to comply with a command to disperse, violations of LSA-R.S. 14:329.2 and 329.3. It also charged Warner with simple battery, a violation of LSA-R.S. 14:35. A jury found Duke guilty as charged, and Warner guilty only of inciting to riot. The court sentenced Duke to three months imprisonment and a $125 fine on each count, to run consecutively, and Warner to three months imprisonment and a $150 fine.

This Court granted the defendants’ application to review the convictions and sentences. La., 356 So.2d 1009 (1978).

Duke is the national director of the Ku Klux Klan; Warner is a member and former officer of the Louisiana Klan. During a Klan meeting at a motel in Jefferson Parish, officers stationed themselves in the parking lot, photographing those who attended the meeting and recording their automobile license numbers. When the meeting ended, there was a confrontation between the officers and the Klan members in the parking lot. The nature of the incident is vigorously disputed. The evidence at the trial was in conflict.

Later, that day, Duke and Warner were arrested for their activities in the parking lot.

Complaining principally of three rulings, the defense avers that the court admitted evidence that was irrelevant, inflammatory, and so prejudicial that the convictions and sentences must be reversed. We agree.

The following is the evidence complained of:

Clarence Adams, a Klan officer, testified for the defense. On direct examination, defense counsel inquired only about the events in the parking lot which formed the basis of this prosecution. Over defense objection, the prosecutor cross-examined him concerning his religion, his church membership, the regularity of his church attendance, his obedience to the Ten Commandments, and his religious views.

Don Black, an officer of the Alabama Klan, was another defense witness. During direct examination, he identified himself as a Klan member and gave an account of the activities in the parking lot. On cross-examination, the State questioned him about the Communist Party, the American Nazi Party, his association with the American Nazi Party and its members, and his political theories concerning Nazism.

Additionally, during the cross-examination of defendant Duke, the State interrogated him about an old photograph allegedly showing him wearing a swastika arm band, the symbol of the American Nazi Party, and carrying an inflammatory sign. Duke admitted that, in all probability, the photograph was of him. Over a defense objection, the photograph was admitted in evidence.

The defense asserts that the State’s introduction of evidence of religious and political beliefs so prejudiced the jury against them that they were tried for their beliefs rather than for their conduct.

Our criminal justice system is built upon the principle that a conviction is based upon actual guilt of the conduct charged. For that reason, the trial judge must fairly control the introduction of evidence to avoid infecting a jury trial with the prejudicial influence of irrelevant matters, especially the religious beliefs, the political ideology, and the societal views of a defendant and his witnesses. See State v. Kaufman, La., 278 So.2d 86 (1973).

These subjects are often charged with controversy and emotion. To safeguard the fairness of the trial, Louisiana Code of Criminal Procedure Article 770 makes a court official’s irrelevant reference to religion a mandatory ground for a mistrial when it is requested. Article 771 extends this principle to such comments made by witnesses.

Here, religious beliefs and political ideology were clearly irrelevant to the charges against the defendants. However, this evidence permeated the trial. As we view it, the evidence created an atmosphere in which the beliefs of the defendants and their witnesses became the issue rather than defendants’ actions.

The State attempts to justify the evidentiary rulings by asserting that they represented proper cross-examination and impeachment.

This argument is without merit. Although several of the witnesses did refer to the purpose of the Ku Klux Klan, we find nothing in the record to justify the broad inquiry into the controversial subject matter. See LSA-R.S. 15:280. Louisiana Revised Statutes 15:494 provides: “It is not competent to impeach a witness as to collateral facts or irrelevant matter.” Thus, if viewed as impeachment, it was improper here. See State v. Lewis, La., 328 So.2d 75 (1976) and the cases cited therein.

Finally, the State asserts that the defense waived its complaint to this evidence by the failure to move either for a mistrial or an admonition. This argument is likewise without merit. As to the erroneous admission of evidence, all that is required for review is an objection to the evidence at the trial followed by an assignment of error on appeal. LSA-C.Cr.P. Arts. 841, 844, 920. See State v. Hamilton, La., 356 So.2d 1360 (1978). The defense here has complied with these requirements.

We conclude that the admission of the evidence was prejudicial to the substantial rights of the defendants. See LSA-C. Cr.P. Art. 921. Hence, the convictions must be reversed and a new trial ordered.

For the reasons assigned, the convictions and sentences are reversed and the case is remanded to the district court for a new trial.


author: MARCUS, Justice. DENNIS, Justice,

text:
    EMPLOYERS’ SURPLUS LINE INS. CO. v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 61763.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Joseph F. Keogh, Parish Atty., Frank J. Gremillion, Asst. Parish Atty., for defendants-applicants.
    G. Thomas Arbour, Baton Rouge, for plaintiff-respondent.
   MARCUS, Justice.

Employers’ Surplus Line Insurance Company instituted this action against its insureds, City of Baton Rouge and Parish of East Baton Rouge, under the terms of a liability policy, seeking reimbursement of $10,000 claimed to be due thereunder. Employers’ moved for a summary judgment. The district judge granted a summary judgment in favor of Employers’ and against defendants, in solido, in the sum of $10,000 together with legal interest thereon from the date of judicial demand until paid and all costs of the proceedings. The court of appeal affirmed. Upon defendants’ application, we granted certiorari to review the correctness of this decision.

Employers’ issued to defendants a liability insurance policy covering the period from March 1, 1969, to March 1, 1972. Pursuant to the terms of the policy, Employers’ insured defendants against claims for bodily injuries up to $100,000 per person and $300,-000 per accident and property damage up to $100,000 per accident. The policy contained the following provision:

II. Defense, Settlement, Supplementary Payments.
With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:
(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; (Emphasis added.)

An endorsement to the policy, effective from date of policy, provided in pertinent part:

The sum of $10,000.00 shall be deducted from the total amount of all sums which the Insured shall become legally obligated to pay by reason of bodily injury or property damage claims, including hospital, medical and funeral charges and all sums paid as salaries, wages, compensation, fees, charges and law costs, premiums on attachment or appeal bonds, interest on judgments, expenses for doctors, lawyers, nurses and investigators and other persons, and for litigation, settlement, adjustment and investigation of claims and suits which are paid as a consequence of any occurrence covered hereunder. . . . (Emphasis added.)

Subsequently, an action was instituted by Winston Hickman individually and as provisional curator for his wife and as natural tutor of his minor children against several defendants, including defendants herein and Employers’ as defendants’ liability insurer, seeking recovery for personal injuries sustained in an accident which occurred on May 30, 1970, within the period covered by the liability insurance policy issued by Employers’ to defendants. As a result of negotiations, Employers’ entered into a settlement agreement with the Hickman claimants wherein all claims were released against defendants for the sum of $75,000. Thereafter, under the terms of the endorsement to the policy, Employers’ demanded from defendants reimbursement in the sum of $10,000. Upon defendants’ refusal, the instant suit followed.

Employers’ alleged in its petition that by the terms of the contract of insurance the parties had agreed that the sum of $10,000 was to be deducted from the total amount of all sums which the insured became legally obligated to pay for litigation, settlement, adjustment and investigation of claims and suits which were paid by the insurer as a consequence of any occurrence covered under the policy. Accordingly, since the sum of $75,000 was paid by Employers’ in settlement of the Hickman claims against defendants, Employers’ was entitled to reimbursement by defendants in the sum of $10,000 as provided by the endorsement to the policy. Defendants’ answer was a general denial of the allegations contained in Employers’ petition.

In support of its motion for summary judgment, Employers’ offered the affidavit of Aubrey L. Moore, counsel retained by Employers’ to defend against the claims asserted by Hickman against defendants and Employers’ as defendants’ insurer. In his affidavit, Moore stated that, by letter dated October 15, 1975, Assistant Parish Attorney Edward V. Fetzer, who represented defendants in connection with the Hickman suit, called upon Employers’ to accept an offer of compromise in the amount of $350,000 which was communicated to defendants by counsel for the injured parties. He further averred that in the same letter Fetzer acknowledged that defendants were obligated to reimburse Employers’ the sum of $10,000 under the contract of insurance. A copy of Fetzer’s letter was attached to the affidavit in which letter it was stated that the compromise offer was being forwarded to Moore for Employers’ consideration on behalf of its insureds, i. e., defendants. Also offered in support of Employers’ motion for summary judgment was the affidavit of Lysle Jarreau, claims manager for Commercial Union Assurance Company of which Employers’ was a subsidiary, in which Jarreau stated that, as part of the compromise and release of the Hickman claims, Employers’ contributed $75,000 in settlement of the claims against defendants. He further related that defendants had never reimbursed to Employers’ the $10,000 deductible provided for in the endorsement to the insurance policy.

In opposition to Employers’ motion for summary judgment, defendants filed the affidavit of Joseph F. Keogh, attorney for defendants in 1975 and 1976, in which he stated that he had instructed Assistant Parish Attorney Fetzer to advise counsel for Employers’ that defendants could not enter into a compromise settlement of the claims asserted against them in the Hickman suit without the approval of the City-Parish Council for Baton Rouge and that neither he nor Fetzer would approach the council for approval of the settlement because they felt that defendants were not liable for the injuries sustained by the Hickman claimants. The affidavit further recited that neither Keogh nor Fetzer were authorized to negotiate or to consent to a compromise settlement of the Hickman suit on behalf of defendants without obtaining the prior approval of the City-Parish Council of Baton Rouge and such approval had never been requested or granted.

The sole issue presented for our review is whether, based on the pleadings, affidavits and other evidence filed by the parties pursuant to Employers’ motion for summary judgment, a genuine issue of material fact was presented as to whether Employers’ was entitled under the contract of insurance to claim reimbursement in the sum of $10,000 from defendants where Employers’ had paid $75,000 in settlement of claims against defendants which claims arose as a result of an occurrence covered under the contract of insurance.

Under the provisions of the liability insurance contract here at issue, Employers’ was authorized to “make such investigation, negotiation and settlement of any claim or suit it deems expedient.” This provision vests the insurer with absolute authority to settle claims within the limits of the policy with the insured’s having no power to compel the insurer to make settlements or to prevent it from so doing. J. A. Appleman, Insurance Law and Practice, §4711 (1942). Accordingly, Employers’ was authorized to settle the claims against defendants within the limits of the policy without the necessity of obtaining defendants’ consent to the settlement agreement.

However, with respect to Employers’ right to reimbursement from defendants, the endorsement to the policy provides in relevant part that “[t]he sum of $10,000 shall be deducted from the total amount of all sums which the Insured shall become legally obligated to pay by reason of bodily injury or property damage claims, including . expenses . . . for litigation, settlement, adjustment and investigation of claims and suits which are paid as a consequence of any occurrence covered hereunder. . . .” (Emphasis added.) It is clear from this provision that the insurer’s right to reimbursement from the insured in the sum of $10,000 is conditioned upon the insured’s becoming “legally obligated” to pay by reason of bodily injury or property damage claims resulting from an occurrence covered by the policy. An insured becomes legally obligated to pay only as a result of a final judgment of court. In such an event, the insurer would be entitled to reimbursement from the insured under this provision of the policy. Absent such a final determination of the insured’s legal obligation to pay by a court of law, the insurer would not be entitled to reimbursement. On the other hand, if the insurer settles the claims of third persons against the insured, as in the instant case, the insurer would be entitled to reimbursement from the insured provided the insured consented to the settlement agreement.

It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Andrew Development Corp. v. West Esplanade Corporation, 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Andrew Development Corp. v. West Esplanade Corporation, supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Andrew Development Corp. v. West Esplanade Corporation, supra; Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

After reviewing the pleadings, affidavits and documentary evidence filed by the parties and resolving all doubts against the mover (Employers’) as required by law, we are convinced that there is a genuine issue of material fact as to whether defendants, acting through their counsel, consented to the settlement executed by Employers’ so as to entitle Employers’ to reimbursement in the sum of $10,000 under the terms of the policy endorsement. Hence, we are of the opinion that Employers’ is not entitled to judgment as a matter of law. Accordingly, the judgment of the court of appeal upholding the summary judgment in favor of Employers’ was improper.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside; Employers’ Surplus Line Insurance Company’s motion for summary judgment against City of Baton Rouge and Parish of East Baton Rouge is overruled; and the case is remanded to the district court for further proceedings according to law and consistent with the views herein expressed. All costs incurred in connection with the motion for summary judgment shall be paid by Employers’ Surplus Line Insurance Company. Assessment of other costs is to await the final determination of the litigation.

DENNIS, J., dissents in part, concurs in part, and assigns reasons.

DENNIS, Justice,

concurring and dissenting.

I respectfully disagree with the Court’s interpretation of the insurance contract. In this case the policy of fostering expeditious settlement of delictual claims militates against the court’s overly strict interpretation of the insurance contract which does not comport with the probable intention of the parties. In my opinion the contract merely recognizes established principles of insurance law. The insurer is required when handling and settling claims to act in good faith and to use reasonable care and skill to protect the insured’s interests. See, Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1978); Comment, Duty of Insurer to Settle, 30 La.L.Rev. 622 (1970). It has been suggested that the insurer should be regarded as a fiduciary or a mandatory of the insured. Younger v. Lumbermens Mutual Casualty Co., 174 So.2d 672, 675 (La.App. 3d Cir. 1965) (quoting from 7A, Appleman, Insurance Law and Practice, § 4711 (1962 ed.)); Comment, Duty of Insurer to Settle, 30 La.L.Rev. 622, 640 (1970) (quoting from La.C.C. art. 3003)); see also, Note, 39 Tul.L. Rev. 368 (1965). Thus, the insurer cannot refuse to effect reasonable settlement of apparently just claims against the insured simply because they have not been reduced to judgment. Taken in this context, it is likely the parties intended that the insured would become obligated to reimburse the first $10,000 of amounts paid by the insurer in the settlement of claims for which it reasonably appeared that the insured was legally responsible. Under the majority opinion, the insurer would be subjected to two inconsistent obligations, i. e., a duty to settle and a duty to refuse settlement until the claims are adjudicated.

Because I do not believe the parties intended such a result, I dissent from the majority opinion, and, in part, from its decree. In addition to remanding for a trial on the consent issue, I believe the case should be remanded on the issue of whether the insurer acted as a responsible mandatory in making the settlement.

      . 354 So.2d 631 (La.App. 1st Cir. 1977).

      . 356 So.2d 1006 (La.1978).

      . Winston Hickman, individually, and as provisional curator of Mrs. Hazel Mack Hickman, his wife, and as natural tutor for Winston Hickman, Jr., and Debbie Faye Hickman v. Parish of East Baton Rouge, City of Baton Rouge, Employers' Surplus Line Insurance Company, Ross E. Cox, Insurance Company of North America, Klatex, Inc. and Bituminous Casualty Corporation, No. 149,202, 19th Jud.Dist.Ct., Division I, Parish of East Baton Rouge, State of Louisiana.