text:
    STATE of Louisiana v. Joseph SIEGEL.
    No. 62576.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Alton T. Moran, Director, Allen J. Ber-geron, Baton Rouge, App. Counsel, The Office of Public Defender, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Lennie Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

Defendant Joseph Siegel was indicted for first degree murder in violation of R.S. 14:30, in connection with the armed robbery and murder of H. Alva Brumfield on May 25, 1973. On January 27, 1978 the jury found defendant guilty as charged and on April 28, 1978 defendant was sentenced to life imprisonment. Defendant assigned eight errors as grounds for his appeal. On appeal defendant argues only one assignment of error; therefore, the other assignments of error are considered abandoned. State v. Scwartz, 354 So.2d 1332 (La.1978).

Assignment of Error No. 8

Defendant argues that the trial court erred in admitting incriminating statements obtained through interrogation in violation of defendant’s right to counsel.

After defendant had been arrested and had been in jail several months, he was interviewed by an assistant attorney general, Mr. Hymel, accompanied by another prosecutor, Mr. Ruggiero, who were prosecuting, not defendant, but Willie Beard for armed robbery of H. Alva Brumfield on May 25, 1973; Brumfield was murdered during the robbery, and defendant was indicted for murder. Defendant gave a statement concerning the Beard case which was self-incriminating.

In a hearing outside the jury’s presence, the prosecutors both testified that defendant was read, before the interview, his Miranda rights, including his right to an attorney and his privilege against self-incrimination. Both testified that defendant told them he had an attorney, but when asked whether defendant wished to contact his counsel and have him present during the interview, defendant declined. Mr. Ruggie-ro also testified that defendant was twenty feet from a telephone that he could have used.

At the same hearing defendant testified that the two prosecutors did not read his rights to him, but simply asked him if he understood his rights. On cross-examination he stated that he understood his right to remain silent and right to counsel, but that he was not fully aware that his attorney should be present at an interrogation, not about murder of Brumfield, but about a “completely different crime that was associated with the Brumfield case.” Further, during cross-examination, defendant stated that he had become involved with the legal aspects of his case and his friends’ cases and had become a jailhouse lawyer by the time that the interview in question was conducted. The trial court ruled that a sufficient predicate had been laid and that the statement could be introduced into evidence.

Before an inculpatory statement can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary. R.S. 15:451; C.Cr.P. 703(C). The state must also establish that an accused who makes an inculpa-tory statement during custodial interrogation is first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. State v. Thomason, 353 So.2d 235, 239 (La.1977). The admissibility of an inculpatory statement is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of the inculpatory statement will not be overturned unless they are not supported by the evidence. State v. Thomason, supra.

In the present case defense contends that the fact that the interrogating officers were aware that defendant had retained counsel increased the magnitude of the violation of defendant’s rights. In ruling on the admissibility of defendant’s inculpatory statement the trial judge relied on State v. Cotton, 341 So.2d 355, 359 (La.1977), where this court stated:

“This record undoubtedly supports the finding of the trial judge that Cotton’s statement to Robinson was free and voluntary. We do not believe that the fact that a defendant has an attorney means that law enforcement officials cannot procure a statement of any kind from him without prior notice to, if not the consent of, the attorney. United States v. Cobbs, 481 F.2d 196 (3rd Cir. 1973), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Springer, 460 F.2d 1344, (7th Cir. 1972), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972). The court in Springer, id., held that a constitutional right such as the right to counsel may be waived, although there is a higher standard imposed to show waiver of the presence of counsel once counsel had been appointed than before.
In Coughlan v. United States, 391 F.2d 371 (9th Cir. 1968), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968), oral statements were testified to in court by police officers who interviewed the defendant in a jail interview room. The officers knew that the defendant was represented by counsel, but counsel knew nothing of the interview. As is true here, the defendant in Coughlan was fully warned, before he made any statements, of his Miranda rights; but he waived those rights. The court held that the statements made by the defendant were admissible in evidence although it further indicated disapproval, as we do here, of the practice of interviewing prisoners in the absence of their attorneys. This holding was approved in United States v. Cobbs, supra.
In United States v. Cobbs, supra, the court stated that it is permissible for a law enforcement official to interview a defendant, even though the defendant has counsel and even though that counsel is not consulted, as long as the proper Miranda warnings are given. The same applies to the case before us. See also Moore v. Wolff, 495 F.2d 35 (8th Cir. 1973). . . .”

In the present case the record indicates that defendant often disregarded his attorney’s admonitions. For example, defendant, against the advice of his attorney, granted a television taped interview with a newsman and discussed his case during the interview, giving much the same information that he gave the two prosecutors.

Defense further relies on State in the Interest of Dino, 359 So.2d 586 (La.1978), where this court found that it is well settled under Miranda and our state constitution that if a statement is taken without the presence of an attorney, under circumstances in which the warnings are required, a heavy burden rests on the state to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Defendant urges that the reasoning of Miranda does not permit a finding of knowing and intelligent waiver upon the bare allegation that the interrogating officers recited the Miranda rights to the accused.

The record in the present case, however, indicates that (1) defendant received his Miranda rights and understood them, and (2) defendant knowingly and intelligently waived his rights. First, both interrogators testified that they told defendant his Miranda rights. Defendant testified at the same hearing that he had been advised of his Miranda rights on two prior occasions since Miranda was decided. He also testified that he realized how extensive the defendant’s rights are under the Miranda decision when he received some law books, including Jailhouse Lawyer’s Manual, in July, 1974. (Defendant was interviewed on November 19, 1975). Defendant’s testimony indicates that he understood his Miranda rights.

Second, the record indicates that at the time of the interview defendant was knowledgeable in criminal law, had openly discussed his case with numerous persons other than his attorney, and was not new to the criminal justice system (defendant had spent twenty-six of his forty-nine years behind bars in various institutions for numerous offenses). Defendant acted as his own attorney on numerous occasions even though he had counsel; he estimated that since receiving his law books he had filed three hundred to four hundred writs for himself and other inmates, of which a number were filed before the interview in question. Also before the interview, defendant had filed numerous lawsuits for himself and the other defendants in the Brumfield case. Prior to the interview in question, defendant had testified about the Brumfield case in open court, had written letters detailing his position to newspapers, talked to news reporters, spoken informally to the assistant district attorney, and signed a twenty-six page detailed statement of his position which was almost identical to the information defendant gave the interrogators. The cumulative effect of the above indicates that the defendant knowingly and intelligently waived his right to counsel and right to remain silent.

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

      . The following exchange occurred between the assistant district attorney and defendant:
      “Q Were you aware at the time that Mr. Rug-giero and Mr. Hymel came into the room, that as a person accused of a crime, you had the right to remain silent under the Fifth Amendment of the Constitution?
      A Yes.
      Q Were you aware that you had a right to counsel?
      A Yes.
      Q Were you aware that you had a right not to say anything to any person other than your attorney without your attorney present?
      A Well, I wasn’t fully aware of this. You—
      Q You were not fully aware of it?
      A Not fully aware that my attorney should be present. And, in this respect that if I was being questioned for a crime that I committed I’d have to have my attorney present.
      Q You felt at that time you had not committed a crime so you didn’t have to have an attorney present?
      A 1 felt at that time I did not commit the crime of murder.
      Q You felt you had no reason not to talk to them without your attorney present? You felt the only reason you needed an attorney present was if you were guilty?
      A No, not that. If I was being questioned for the murder of H. Alva Brumfield, I’d have to have my attorney present, but my understanding was they were talking to me about a completely different crime that was associated with the Brumfield case.
      Q What did they tell you they were talking to you about?
      A Aggravated burglary.
      Q Did they tell you — were you aware that they were questioning you about the incident on May 25, 1973 wherein Mr. Brumfield was killed during the burglary?

        A Yes.
      Q You were aware of that?
      A Yes.
      Q You were aware at that time that you were under indictment for several charges in connection with that same incident?
      A Yes, but not aggravated burglary or conspiracy to the same.”

      . In State v. Cotton, supra, the defendant, who was advised by his attorney not to make any statements, requested to speak to a police officer on three occasions before the officer who knew of the attorney’s advice met with the defendant. This court found the subsequent confession was not involuntary, even though the officer mistakenly informed the defendant that two persons had identified him at the lineup when in fact no one had identified the defendant.

      . The following exchange occurred between the assistant district attorney and defendant:
      “Q Mr. Siegel, you were quite aware, were you not, during that period of time, that you had a right to remain silent and you did not have to talk to people under your constitutional rights, is that no—
      A Yes, I’m aware of that.
      Q You were — and you were aware that you had an attorney and you had a right to have him present, were you not?
      A If we were talking about the murder of H. Alva Brumfield.
      Q Were you aware that you had the right to say, look, I don’t want to talk to you about the time of day, I don’t want to talk to you about anything? Did anybody try to make you talk?
      A No.
      Q You were aware that you didn’t have to talk to anybody about anything, is that correct?
      A That’s correct.
      Q You freely chose to talk to them?
      A Yes.”

      . The following exchange occurred between the assistant district attorney and defendant:
      “Q You had testified in court previous to that time about that same incident?
      A I testified in court previous to that time about an armed robbery?
      Q The armed robbery of Mr. Brumfield on that same night?
      A Yes.
      Q As part of the same burglary or conspiracy in the same chain of events?
      A As part of the murder of H. Alva Brumfield, part of the conspiracy to murder H. Alva Brum-field, armed robbery of Brumfield and conspiracy to rob Brumfield.
      Q You had previously testified in open court about that matter?

        A Only about the armed robbery of Mr. Brum-field.
      Q Did you testify you were in fact present when Mr. Brumfield was murdered?
      A I didn’t understand you.
      Q Did you testify in open court that Mr. Brumfield was murdered — that you were present?
      A That I was present at his murder?
      Q Yes sir.
      A I perjured myself.
      Q I mean, did you testify about that when you were in open court?
      A I perjured myself in that regard.
      Q Were you made aware when you had come to court by Judge Covington that you had a right to counsel, that you had a right not to make any statements and talk to anyone?
      A That’s right.”

      . Assistant district attorney:
      “Q How many people have you talked to about this incident since — whether it be around courtrooms or jails or whatever — how many people have you talked to on a formal or informal basis about these — about these proceedings?
      MR. REINE (defense counsel): Objection, Your Honor, I think it’s irrelevant.
      THE COURT: I think it’s relevant. It goes to whether or not it was a knowing and intelligent waiver in view of what he said about not understanding he was talking to them about—

      Q You talked about it with newspaper reporters, several, haven’t you?
      A (defendant) I’ve only talked to one newspaper reporter and that was Mike Jones.
      Q Have you ever talked to Gibbs Adams, informally?
      A Informally, yes.
      Q About facets of the case?
      A Yes.
      Q You realize that those statements that you made could have been used against you?
      A I was very careful.
      Q You realize that Michael Jones — the statements you made to Michael Jones could be used against you?
      A Oh yes, I realize that.
      Q Isn’t it true that you freely talked to any number of people about that, including probably talking to me at several times out at the Parish Prison on an informal basis about it?
      A I talked to you once out in the Parish Prison. It was about May of 1974.
      Q Okay, true, isn’t it that you have had no hesitancy at all about talking about the matter to almost anybody who would lend an ear?
      A Weil, let’s put it that way. Probably five hundred men have come into my dormitory and left and there isn’t a day that none of us will rap about our case.
      Q And you have written numerous letters about this incident, detailing your position, to the newspapers, is that correct?
      A Yes.
      Q Openly writing letters with information specifically about your — the factual details of the Brumfield case as you know them?
      A Yes.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AETNA CASUALTY & SURETY COMPANY v. The HERTZ CORPORATION.
    No. 62619.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Emile L. Turner, Jr., New Orleans, for defendant-appellee and cross-appellant.
    Joel L. Borrello and Robert J. Conrad, Jr., Adams & Reese, New Orleans, for plaintiff-appellant and cross-appellee.
   PER CURIAM.

Pursuant to Rule 12 of this Court, the United States Court of Appeals for the Fifth Circuit certified questions or propositions of law to this Court for rendition of a judgment or opinion. This Court has, within its discretion, agreed to answer the questions certified to it.

According to the opinion of the United States Court of Appeals for the Fifth Circuit, the Style of the Case, the Statement of Facts, and the questions certified are as follows:

“(1) Style of the Case
“The style of the case in which this certificate is made is Aetna Casualty & Surety Co., plaintiff-appellant and cross-appellee, versus The Hertz Corporation, defendant-appellee and cross-appellant, Case No. 76-2213, United States Court of Appeals for the Fifth Circuit, on appeal from the United States District Court for the Eastern District of Louisiana.
“(2) Statement of Facts
"Mississippi Valley Silica leased a truck-tractor from the Hertz Corporation under a rental agreement. The agreement provided insurance up to $100,000 for Mississippi and for any employee of Mississippi while acting in the course of such employment. The insurance was ‘primary as respects any other insurance available.’ In block print the Hertz agreement added, ‘THERE IS NO COVERAGE FOR TRAILERS.’ The agreement provided coverage in accordance with the ‘standard provisions of a basic automobile liability policy.’ The agreement thus incorporated by reference an exclusion clause stating that its coverage would not apply ‘while the automobile is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company . .’
Also incorporated was a provision for prorating liability among insurers ‘[i]f the insured has other insurance against a loss covered by this policy.’
“Mississippi owned a trailer which Aet-na Casualty & Surety Company insured up to $200,000. Hertz did not insure the trailer. The Aetna policy provided that it would be primary, but that ‘[w]ith respect to a hired automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.’ Another clause prorated liability ‘[w]hen both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent.’
“Neal, a Mississippi employee acting within the scope of his employment, drove the tractor pulling the trailer, which was fully loaded, onto the Lake Pontchartrain Causeway, where it was involved in an accident. The trial court found that Neal’s negligence in the vehicle’s operation was the sole proximate cause of an accident which killed Garrison, an automobile driver. Garrison’s survivors sued Neal, Hertz, Mississippi, and Aetna in Louisiana state court. Hertz and Aetna settled the suit for $145,000, with a full reservation of rights against each other.
“Aetna brought this diversity suit in the United States District Court for the Eastern District of Louisiana seeking a declaratory judgment that Hertz was liable up to the $100,000 limit of its insurance agreement. The trial judge held the exclusion clause in the Hertz policy applied to Mississippi but not to Neal, because Neal was an ‘insured’ who did not own the trailer. He thus followed Mays v. Aetna Casualty & Surety Co., 242 So.2d 264 (La. 2d Cir. Ct. App. 1970). He recognized the existence of an arguably contrary case, Brady v. American Insurance Co., 198 So.2d 907 (La. 4th Cir. Ct. App. 1967), but held its authority was ‘weak.’ As an insurer of Neal, Hertz was found to be liable.
“The district court also held Aetna liable as a primary insurer of the trailer. The court ruled the clause limiting coverage to excess liability did not apply. The tractor and trailer operated as a unit, and so the ‘automobile’ referred to was at least partly owned by Mississippi. The court discerned no Louisiana precedent to control the question.
“Concluding both Hertz and Aetna were primary insurers of the accident, the judge then employed the proration clauses applicable to Hertz and Aetna and apportioned the loss according to their liability limits. He required Aetna to pay Hertz $24,166.66, a sum which, when added to Aetna’s previous contribution of half of the settlement, imposed two-thirds of the liability on Aetna. Both parties appealed.
“(3) Questions to be Certified
“1. Whether a clause in a company’s insurance agreement with its customer which excludes coverage ‘while the automobile [tractor] is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company’ excludes from insurance coverage an otherwise covered employee of the customer, when said employee has an accident while driving the insured tractor with a trailer attached, where the trailer is owned by his employer and the trailer is not covered by ‘like insurance in the company.’
“2. If the insurance agreement covering the tractor (rented by the driver’s employer) does not exclude the driver, whether that policy is co-primary with an insurance agreement covering the attached trailer (owned by the employer), when:
“(a) the trailer policy provides only excess coverage when the ‘automobile’ is not owned by the employer, and the sole proximate cause of the accident was found to be the driver’s negligence in the vehicle’s operation; and
“(b) the agreement insuring the tractor provides for coverage primary ‘as respects any other insurance available,’ the trailer policy does not contain the same language, and while both policies contain proration clauses, the trailer proration clause takes effect only when other insurance applies ‘on the same basis.’ ” [footnote omitted] 573 F.2d 306 (5th Cir. 1978).

Upon review, we find no conflict between Mays v. Aetna Casualty & Surety Co., 242 So.2d 264 (La.App.2d Cir. 1970), which was correctly decided, and Brady v. American Ins. Co., 198 So.2d 907 (La.App. 4th Cir. 1967). Accordingly, the federal district court correctly applied the rule of the Mays case in finding that “although Hertz provides no coverage for Mississippi Valley Silica under its rental agreement, Hertz does provide coverage for Mississippi’s driver, Floyd B. Neal.”

The federal district court also reached the correct result under Louisiana law in concluding that both Aetna and Hertz provided primary insurance for the accident sued upon and in applying the pro-ration clauses of the respective insurance policies. The provision in the Aetna policy that its insurance shall be excess with respect to a hired automobile or non-owned automobile is inapplicable. Because the truck-tractor and the trailer became one vehicle for the transportation of cargo, Mays v. Aetna Casualty & Surety Co., supra, the “automobile” in the accident was at least partially owned by Mississippi Valley Silica, the named insured of Aetna.

CERTIFIED QUESTIONS ANSWERED.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Barry WILLIAMS.
    No. 62707.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

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

A Grand Jury indicted the defendant, Barry Williams, with first degree murder, a violation of LSA-R.S. 14:30. A jury found him guilty of second degree murder. The court sentenced him to life imprisonment without parole or probation for forty years.

The defendant appeals, relying on eight assignments of error for reversal of his conviction and sentence. As counsel failed to brief or argue the remaining five assignments of error, we deem them abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

We adduce the following context facts:

The defendant and an accomplice approached Margaret Dauterive, the seventy-five-year-old victim, and the defendant grabbed her purse. She resisted and fell to the ground. He then hit her on the head with a pistol, forcing her to release the purse. Taking it, he fled.

The victim died three weeks later.

ASSIGNMENT OF ERROR NO. 1

On the hospital’s emergency ramp, the victim identified herself to Officer Banks. When the State questioned the officer as to the name she gave, the defense objected to the response as hearsay. The court overruled it, and the defendant challenges the ruling.

Assuming arguendo that the court erred, we find that the defendant was not prejudiced thereby. LSA-C.Cr.P. Art. 921. In addition to the admission of S — 1, a photograph of the victim, five witnesses identified her as Margaret Dauterive without defense objection.

This assignment of error is without merit.

ASSIGNMENTS OP ERROR NOS. 6, 7 AND 8

The court deleted a small section of defendant’s confession before its admission because the deleted section contained references to other crimes. The defendant now complains of the admission of a portion of his confession. His complaint is two-fold: that the confession was not free and voluntary due to physical abuse and scare tactics of the police and thus, is inadmissible; and that the court should have admitted the entire confession into evidence under LSA-R.S. 15:45o and that since it contained references to other crimes, the court should have held the entire confession inadmissible.

Before a confession may be introduced into evidence, the State has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, inducements, or promises. LSA-R.S. 15:451; LSA-C.Cr.P. Art. 703(C). The admissibility of a confession is in the first instance a question for the trial judge. We will not overturn his conclusions on the credibility of testimony relating to the vol-untariness of a confession unless they are unsupported by the evidence. State v. Hutto, La., 349 So.2d 318 (1977); State v. Adams, La., 347 So.2d 195 (1977); State v. Ross, La., 343 So.2d 722 (1977).

After reviewing the record, we are convinced, as was the trial judge, that the State satisfied its burden of affirmatively proving that the confession was freely and voluntarily made. The defendant testified on the predicate that the officers punched him in the stomach, neck, and sides, and wiped their feet on him; and that they threatened to throw him in the river if he refused to lead them to the victim’s purse. Three officers denied the mistreatment described by the defendant, and the defendant’s father, present at the time of his son’s confession, stated that the officers “didn’t try to threaten him or hit him or nothing like that. . . . ”

Secondly, he contends that the court should have considered the entire confession without the deletions and that, if the entire confession were considered, it was inadmissible due to references to other crimes.

In State v. Mullins, La., 353 So.2d 243 (1977), we rejected the identical argument, stating:

“This court has previously addressed the contention asserted by defendant in State v. Snedecor, 294 So.2d 207 (La.1974):
Pretermitting the inconsistency of defendant’s position, we held recently in State v. Haynes, 291 So.2d 771 (1974) that ‘a party defendant is entitled to insist upon introduction of the entirety of a statement sought to be used against him, although of course he may waive the benefits of the protective statute.’ Thus, in keeping with the restrictions imposed in Sections 445 and 446, the trial court allowed introduction of only that portion of the statement dealing with the charged crime. Defendant, of course, could have required that the whole statement be introduced. This, however, is his choice to make. If he decides that the evidence of other crimes would outweigh the possible exculpatory value, then he may waive his right to have the whole statement introduced. The third alternative, that of keeping the whole statement out, is not available to defendant, unless, of course, the confession itself is not admissible. See also, State v. Link, 301 So.2d 339 (La.1974).
“In the instant case, defendant could have required that his entire confession be introduced in evidence, but in doing so, he would thereby have waived his right to have excluded evidence of the other crime allegedly committed by him. This he declined to do. Under these circumstances, we find that the trial judge properly admitted in evidence only that portion of defendant’s confession which pertained to the crime for which defendant was being tried.”

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 9 AND 10

The defendant asserts that the search warrant was invalid, and therefore, the court erred in admitting three items seized at his residence: the victim’s house key and two guns. He contends that as a juvenile court declared the affiant’s named informant, an eleven-year-old, an incompetent witness due to his inability to accurately testify, he was “incompetent to give information to substantiate a search warrant.” And further, that the district court is collaterally estopped from relitigating the named informant’s competency.

The defendant’s accomplice was his co-defendant. They were, however, severed pri- or to trial. At the hearing on the motion to suppress, co-defendant’s counsel filed a second motion to suppress “which specifically addresses itself to the probable cause issue.” (The record does not contain the second motion to suppress.) Counsel for defendant joined in the motion. The trial court denied it.

Assuming that the defense properly raises the informer issue for our consideration, we find that it is without merit. The credibility of the affiant’s informant may not be attacked on a motion to suppress. State v. Tassin, 343 So.2d 681 (1977); State v. Giordano, La., 284 So.2d 880 (1973); State v. Melson, La., 284 So.2d 873 (1973).

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 12 AND 13

The defense alleges that the court erred in refusing to give special written jury charge number three, in overruling two objections to the supplemental jury charge, and in denying his motion for a mistrial based on another objection to the supplemental charge.

His special written charge number three concerns the weight and consideration given the testimony of a witness who has received immunity for testifying.

A special written charge “need not be given if it is included in the general charge or in another special charge to be given.” LSA-C.Cr.P. Art. 807. Our examination of the entire charge reveals that it contains the import of the defendant’s requested charge. The court’s charge had five paragraphs on the credibility of witnesses. The judge explained that the jury, in evaluating the veracity of witnesses, should take into account their interest, motive, and every circumstance surrounding the giving of the testimony. The court further instructed that the jury should look upon an accomplice’s uncorroborated testimony with great caution and examine it carefully. Accordingly, the court properly refused defendant’s special requested charge number three. State v. Smith, La., 340 So.2d 222 (1976); State v. White, 254 La. 389, 223 So.2d 843 (1969).

During deliberations, the jury returned and requested clarification of the charge. The court gave further instructions and the jury retired. Defense counsel then stated the following: that, although the judge gave the entire definition of manslaughter, he objected to the court stating that the fundamental difference between murder and manslaughter is the element of “heat of passion,” and that he objected to the judge stating that if one intends to club another on the head causing great bodily harm resulting in death, it would be murder. Further, he moved for a mistrial based on the judge’s remark made while describing the law of principals, that the case did not involve accessories, alleging that it was a comment on the evidence.

Louisiana Code of Criminal Procedure Article 841 precludes our review of these objections for two reasons: An objection made to the court’s charge after the jury had retired for deliberation is untimely. State v. Beard, La., 312 So.2d 278 (1975); State v. Neal, La., 275 So.2d 765 (1973). And, defense counsel failed to offer any reasons for the first two objections.

In any event, we have reviewed the objections and find them insubstantial. In State v. George, La., 346 So.2d 694 (1977), we stated:

“It is generally recognized that a judge’s charge must be considered as a whole, and particular expressions construed with reference to the context. The ruling of a trial judge on an objection to a portion of his charge will not be disturbed unless the disputed portion, when considered in connection with the remainder of the charge, is shown to be erroneous and prejudicial.” [Citations deleted.]

Taking the charge as a whole, we believe that the portions objected to were neither erroneous nor prejudicial.

These assignments of error are without merit.

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

DIXON, J., concurs.

CALOGERO, J., dissents.

DENNIS, J., dissents. The juvenile was deprived on his right to be advised of his constitutional rights.

      . LSA-R.S. 15:450 provides:
      “Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.”


author: DIXON, Justice.

text:
    STATE of Louisiana v. Donald WILLIAMS.
    No. 62711.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Bernard E. Burk, New Orleans, for defendant-appellant,
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert T. Myers, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
   DIXON, Justice.

Donald Williams and Johnnie J. Willis were charged with possessing a firearm after having been convicted of a felony, a violation of R.S. 14:95.1. A motion to suppress was denied. At trial Willis withdrew his plea of not guilty and entered a plea of guilty. Williams was convicted and sentenced to serve five years at hard labor. On appeal Williams assigns five errors; there is merit in two assignments; we do not reach the others.

Police officers Robert Anderson and Henry Sanderson were on patrol in downtown New Orleans on the evening of February 25,1978. At approximately 9:25 p. m. they noticed a green 1970 Pontiac without tail lights in the vicinity of Calliope and Caron-delet Streets. The officers decided to issue a citation to the driver and turned on their siren and light to notify him to stop. The car was stopped at the corner of Carondelet Street and Howard Avenue next to a large gasoline station, and its two occupants were ordered to get out of the vehicle. As the passenger, Johnnie J. Willis, was getting out, Officer Sanderson noticed a sawed-off shotgun on the floor between the passenger’s side of the front seat and the door of the car. Willis and the driver, Donald Williams, were immediately arrested for the possession of the sawed-off shotgun, and Williams was issued citations at Central Lockup for driving without tail lights and without a driver’s license.

Assignment of Error No. 1

In his first assignment of error the defendant contends that it was error for the district court to deny the motion to suppress and to admit the evidence at trial.

An important issue at the suppression hearing was the officer’s authority to order both the driver and the passenger from the car during a routine traffic stop. The police report of the incident contains the notation that both occupants were ordered from the ear because the officers feared for their personal safety. Officer Robert Anderson testified that he could see the occupants of the car well enough to know only that they were black males until they were ordered from the car. Anderson further stated that his partner gave the order as they approached the car, although he later qualified his statement and said that Williams was perhaps already getting out when Sanderson spoke. When asked why both men were asked to get out, Anderson first answered that such was routine procedure. However, he added that a number of factors were taken into account when deciding whether to order both driver and passenger, or either, from the car, such as the time of night, the number of occupants, the fact that they were males, and the absence of other police. Officer Anderson also stated that he and his partner had received a report of an armed robbery involving two black males in that general area, although he remembered no details, and did not stop the car for that reason.

In certain respects Officer Henry Sander-son’s testimony differed from that of his partner. Officer Sanderson at one point testified that both officers gave the order, and that Williams got out and approached Anderson. At that point, he stated, he went to the passenger side of the car, and, when Willis opened the door, saw a sawed-off pump shotgun which obviously violated state and federal laws. He then arrested Willis and told Anderson to proceed cautiously with Williams, whom his partner then arrested as well. Under cross-examination, Sanderson stated that they first ordered the driver out of the car and that he then ordered Willis to step out when he recognized Williams from a previous drug arrest. However, Sanderson admitted that he did not know Willis, that Willis had made no threatening gesture to him, and that weapons were not involved in Williams’ previous arrest. Both officers agreed that they were not investigating a crime and that they had no reason to suspect either Williams or Willis of any infraction other than the traffic offense.

Johnnie Willis, the passenger in Williams’ car, also gave his version of the events in question. According to his testimony, Williams was already out of the car and talking to one of the officers when the other came to the passenger window, knocked on it to get his attention, and ordered him to get out. He was then told to go to the rear of the vehicle where Williams and the other officer were standing. As he was going there, both he and Williams were placed under arrest.

Unreasonable searches and seizures are prohibited by the Fourth Amendment to the United States Constitution and by Article I, § 5 of the Louisiana Constitution. A search conducted without a warrant is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Colvin, 358 So.2d 1250 (La.1978); State v. Parker, 355 So.2d 900 (La.1978). When the constitutionality of a warrantless search is at issue on a motion to suppress, the state bears the burden of affirmatively showing that it was justified under one of these exceptions. State v. Adams, 355 So.2d 917 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

The prosecution relies on the “plain view” doctrine as an exception to the prohibition against warrantless searches and seizures. The elements of this exception were laid out by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Three conditions must be present for the exception to apply: (1) a prior justification for the intrusion into the protected area; (2) in the course of which the evidence is discovered inadvertently; (3) where it is immediately apparent without close inspection that the items are contraband or evidence. See also, State v. Parker, supra; State v. Fearn, 345 So.2d 468 (La.1977).

To meet this first requirement the state argues that a police officer may order both passenger and driver from the automobile during a routine traffic stop where there is no reason to believe either one has committed a crime or is dangerous. The purported justification for this seizure of the person is to protect the police officers from personal injury perpetrated by the occupants of the car. Support for this position is said to be found in the recent cases of Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978) and Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). The following statement from Foley, supra, is cited by the prosecution in support of its argument:

“An arrest, the function most commonly associated with the police, is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot. Even the routine traffic arrests made by the state trooper — for speeding, weaving, reckless driving, absence of license plates or outdated license plates, absence of inspection stickers, dangerous physical condition of a vehicle, to describe only a few of the more obvious common violations— can intrude on the privacy of the individual. In stopping cars, they may, within limits, require a driver or passengers to disembark and even search them for weapons, depending on time, place and circumstances. That this prophylactic authority is essential is attested by the number of police officers wounded or killed in the process of making inquiry in borderline, seemingly minor violation situations — for example, where the initial stop is made for a traffic offense but, unknown to the officer at the time, the vehicle occupants are armed and engaged in or embarked on serious criminal conduct.” 435 U.S. 291, 298, 98 S.Ct. 1067, 1071, 55 L.Ed.2d 287, 293.

Foley v. Connelie was a civil action in which a resident alien attacked a state law limiting state police appointments to citizens. It did not hold that police may require passengers to disembark on traffic stops, and the statement relied on by the prosecution is clearly obiter dictum.

More to the point, however, is the prosecution’s argument that the result of the balancing of individual privacy interests and of the state’s concern for the officer’s safety conducted in Pennsylvania v. Mimms, supra, applies with equal weight to the instant case. In Mimms, the Supreme Court held that a police officer’s order to a driver to get out of his car did not violate the Fourth Amendment, even though the officer had no reason to suspect foul play from the particular driver. In reaching this conclusion, the court first stated that the state’s justification for the intrusion, the personal safety of the officer, was both legitimate and weighty, and cited a study showing 30% of all police shooting to have occurred when the officer approached a person seated in an automobile. The court also noted the hazard of accidental injury from passing traffic to an officer standing on the driver’s side of the vehicle.

When it turned to the invasion of privacy suffered by the motorist, the court stated:

“Against this important interest we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a ‘serious intrusion upon the sanctity of the person,’ but it hardly rises to the level of a ‘petty indignity.’ Terry v. Ohio, [392 U.S. 1] supra, at 17, 88 S.Ct. 1868, 20 L.Ed.2d 889. What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.” 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331, 337 (1977).

The state argues that the same considerations are at play in the instant situation: a well justified concern for the police officer’s safety and a minimal intrusion on individual liberty. However, the ruling sought by the state is not a logical extension of the Supreme Court’s rationale in Pennsylvania v. Mimms, supra.

It is first questionable to what degree an officer is placed in danger when he stops a person for a routine traffic offense. Justice Stevens in dissent in Mimms points out that the study relied on by the majority does not differentiate the stops made due to traffic offenses rather than pursuant to more serious matters. Within the group of the thirty-five cases mentioned were disparate factual situations — officers shot through the windshield or through the car body while their car was still in motion, officers shot while dismounting or approaching the suspect’s vehicle, officers shot by passengers. In only twenty-eight of the thirty-five cases was the location of the suspect verified; in only twelve of these cases was the suspect behind the wheel of an automobile, and this number appears to include situations in which the officer was shot before he could order the suspect out of the vehicle. In nine cases, on the other hand, the shooting occurred outside the car while the suspect addressed the officer. 434 U.S. 106, 119, 98 S.Ct. 330, 335, 54 L.Ed.2d 331, 340 (Stevens, J. dissenting).

Moreover, it is also questionable whether ordering the routine traffic offender to get out of his car significantly enhances the safety of the police officer: “Arguably, such an order could actually aggravate the officer’s danger because the fear of a search might cause a serious offender to take desperate action that would be unnecessary if he remained in the vehicle while being ticketed.” 434 U.S. at 119, 98 S.Ct. at 337, 54 L.Ed.2d at 340 (Stevens, J., dissenting). In addition, it is noteworthy that some disagreement exists among the authorities over the preferable way to handle the traffic stop situation, with some advising the officer never to let the violator get out of the car. See A. Yount, Vehicle Stops Manual (1976); V. Folley, Police Patrol Techniques and Tactics (1973), cited in Pennsylvania v. Mimms, supra, (Stevens, J. dissenting).

The second justification for ordering the driver from the vehicle is to protect the officer from accidental injury from passing traffic. Although this rationale may have some weight when the officer would otherwise have to speak to the driver through the window on the driver’s side, it has no application when the passenger is involved. Not only is the officer less likely to be exposed to traffic if he stands outside the passenger windows on the right side of the car, there is also no need for the officer to speak to the passenger during a routine traffic stop.

In addition, the treatment by the Supreme Court of the intrusion into the driver’s personal liberty is not dispositive of the issue at hand. As the court noted, by stopping the automobile the police have decided that the driver will be detained. Such is not the case for the passenger, who has broken no law and who may walk away from the scene unless the police officer has some other legitimate reason to detain him. Certainly the passenger has a higher expectation of privacy than the driver, because the passenger plays no part in the routine traffic infraction and has reason to suppose that any exchange with the authorities will be conducted by the driver alone. To give the police officer the discretion to order the passenger from the automobile without requiring any explanation of the officer’s actions (other than a blanket concern for personal safety in all situations) is to abandon the requirement of individualized inquiry into the reasons for an intrusion of the right to privacy secured by Article 1, § 5 of the Louisiana Constitution. (See State v. Kinnemann, 337 So.2d 441 (La.1976). Therefore, without deciding the relationship between the Mimms analysis of the motorist’s liberty interest under the Fourth Amendment and the right to privacy under Louisiana Constitution Article 1, § 5, we conclude that the Mimms rationale does not extend to passengers in the automobile. There is no legitimate support in Louisiana for a rule that would permit police to remove a passenger from an automobile on a routine traffic stop.

This assignment of error has merit.

Assignment of Error No. 2

By this assignment of error, the defendant argues that the trial judge committed reversible error by refusing to instruct the jury that the prosecution must prove, as an element of the offense charged, that the defendant had possessed the shotgun within a period of less than ten years from the date of completion of sentence, probation, parole, or suspension of sentence of the felony conviction. In the alternative, the defense argues that if it had the burden of proof on this issue, the burden shifted to the prosecution once the defense offered some evidence that more than ten years had passed.

The statutory language in question provides:

“C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.” R.S. 14:95.1.

At trial the state argued that the ten year cleansing period was an exception to the statute and not an element of the offense, thereby making it incumbent on the defendant to prove the lapse of this period of time. An analogy was drawn between the ten year period and the possession of a valid prescription for controlled substances, a defense to a charge of drug possession under R.S. 40:966(C).

Before passing on the merits of this assignment, we note that this appears to be a case of first impression in this and other American jurisdictions. However, this may be due to the absence of a cleansing period in many statutes prohibiting felons from possessing weapons. E. g., A.S. 11.55.030 (Alaska); FSA § 790.23 (Florida); GS § 14-415.1 (North Carolina).

The statutory language is persuasive that possession of the weapon within less than ten years of the earlier felony is an element of the offense and must be proved by the state beyond a reasonable doubt. The statute in question provides “this Section shall not apply to the following cases:”, language which completes the definition of the crime. A convicted felon who completed his sentence and supervision is not prohibited from possessing firearms. In proving every element of the offense the state must prove, not only the felony conviction, but the date of completion of the punishment. R.S. 15:271 provides:

“The plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant’s guilt.”

The comparative ease with which the state can prove the date of termination of defendant’s sentence is an important consideration. The prosecution is accorded easy access to such information. An indigent defendant seeking to prove a negative (that he is not within a class of felons prohibited from possessing weapons) might face a difficult task of obtaining documentary evidence from distant states. His own testimony, if forced to testify as to the termination date, would be worth little before a jury because of the previous conviction.

For these reasons we hold that the trial judge erred in failing to charge the jury that the state had the burden of proving that the cleansing period had not elapsed, as an element of the offense proscribed by R.S. 14:95.1.

For the reasons assigned, the defendant’s conviction and sentence are reversed and the case is remanded to the district court for proceedings consistent with the views expressed herein.

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

      . A revolver was also seized from the car, but the defendant was never charged with its possession.

      . At trial Officer Sanderson stated: “We asked Mr. Williams to step out of his vehicle, at which time I recognized Mr. Willis, and asked him to step out of the vehicle also.”

      . In brief the state argues in the alternative that the plain view sighting of the sawed-off shotgun gave the police probable cause to search and that exigent circumstances existed. However, due to our disposition of the “plain view” exception, an analysis of this argument is foreclosed.

      . The study involved one hundred ten selected police shootings that occurred in 1959, 1960, and 1961. In thirty-five of these cases (32%), officers were attempting to investigate, control or pursue suspects who were in automobiles. Bristow, “Police Officer Shootings — A Tactical Evaluation,” 54 Crim.L.C. & P.S. 93 (1963).


author: CALOGERO, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Claude J. BREAUX.
    No. 62730.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      A. J. Boudreaux, Indigent Defender Board, Kenner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., James D. Maxwell, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was charged by bill of information with three counts of aggravated crime against nature, in violation of R.S. 14.89.1, and convicted on all counts after a bench trial. The trial court imposed six year sentences on each count, directing that the sentences be served concurrently. Defendant relies upon four arguments, encompassing eight assignments of error, for a reversal of his conviction and sentence. Because the remaining thirteen assignments appearing in the record have been neither briefed nor argued, we consider them abandoned. State v. Richey, 364 So.2d 566 (La.1978) No. 61,990.

ARGUMENT NO. 1

ASSIGNMENTS OF ERROR NOS. 2, 4, 9 AND 13

These assignments of error stem from the mid-trial amendment of the bill of information, which had charged the commission of the offenses “on or about January 25, 1976” when trial commenced. On the third day of trial, the trial court allowed the state to amend the three counts of the information to charge that the offenses were committed between the dates of January 18, 1976 and January 27, 1976. Even prior to this May 4, 1976 amendment, during the state’s opening statement and during examination of witnesses, the defense complained of the state’s use of the phrase “on or about January 25” because the imprecision purportedly rendered impossible the preparation of an adequate alibi defense. Subsequent to the amendment, which set forth a ten day time span within which the crimes were alleged to have been committed, the defense sought a continuance urging that the amendment materially and prejudicially affected the defense planned (which included an alibi for the date of January 25,1976) and claiming that defendant was entitled to a continuance in accordance with the provisions of Article 489 of the Code of Criminal Procedure.

Defendant complains in brief of the denial of the continuance sought as a result of the mid-trial amendment of the bill of information. However, the record reflects that the trial court granted a “continuance” as mandated by article 489, and trial resumed two days later, at which time defense sought a mistrial, claiming that the defendant’s mental condition so hampered efforts to prepare a defense with respect to all time periods covered by the amended bill that defense preparation was incomplete. Counsel for Breaux complained that he had determined the witnesses he needed and would be prepared to present some defense witnesses but that he had not yet interviewed them. The court denied the mistrial motion, and the defense objected to the ruling. The trial judge stated for the record that defense counsel had telephoned on the previous afternoon, at which time he indicated to the judge that he thought he had all the witnesses needed but related that he perhaps would need instanter subpoenas when the trial resumed the next morning. No instanter subpoenas were requested, the judge observed.

In view of the fact that the trial court granted a continuance, the complaint that the court erred in denying a continuance is wholly lacking in merit. It is significant to note that while the defense moved for a mistrial on the morning that trial resumed, urging inability to complete defense preparations, at no time was the motion for continuance based on the amendment re-urged, nor was additional time to further trial preparation sought. This argument lacks merit.

ARGUMENT NO. 2

ASSIGNMENTS OF ERROR NOS. 11 AND 16

During the trial testimony of the oldest victim of the crimes, age twelve at the time of trial, the child was asked on cross-examination how he had identified the defendant and whether Mr. Muller (a detective in the juvenile division) had “shown” the child the arrested defendant. The child responded to the inquiries by stating, “He gave me some pictures to look at.” Defense counsel queried, “He did?” and the child then stated, “Uh-huh. Some lady gave me some pictures to look at.” At this point the state objected to the defense line of questioning, noting that the witness had made an in-court identification of the defendant, and urging that the defense had been apprised that the state was not using any photographic line-up in connection with its proof of its case. The defense argued that in light of representations of a state’s witness (Muller) at a pre-trial hearing on the motion to suppress identification that there was no photographic line-up exhibited to the victims, the revelation that the same witness exhibited photographs to one of the victims warranted a mistrial.

The court’s further interrogation of the young witness indicated that although he had selected one of the photographs, it appeared that perhaps the child did not know who the selected photograph depicted because when asked, “And who was the photograph of that you picked out?” the boy responded, “He didn’t tell me.” The trial court examined the testimony of Detective Muller given at the motion to suppress hearing and ascertained that Muller only represented that he had no knowledge of any line-up or photographic identification procedure; there was no unequivocal representation that there had been no such procedure. When the defense urged that the testimony of the young victim now revealed that Muller had, indeed, exhibited photographs and that the detective's misrepresentation at the suppression hearing precluded defense exploration of the propriety of the identification procedure, the court announced that the young witness’ testimony indicated there was no photographic identification made. This conclusion was based on the testimony indicating the child did not know who it was that he identified. The court opined that the identification by the child of the defendant was “from his own information.” Based on its appreciation of the evidence, the trial court denied the mistrial sought by the defendant.

Much later, during the trial testimony of Detective Muller, defense sought a response on cross-examination to its inquiry of whether the officer had shown the victims photographs. The defense received a negative response and thereupon unsuccessfully renewed its motion for mistrial, based on the earlier contrary testimony of the young victim. The denial of the two motions for mistrial is urged by this argument to warrant reversal.

Arguing this issue in brief, the defense concedes its failure to establish that the display of the photographs was impermissi-bly suggestive but claims that its failure stemmed from the representation at the suppression hearing that no such identification procedure was employed. It is urged that the court reversibly errs when it prohibits the defendant from eliciting circumstances surrounding the out-of-court identification procedure.

Contrary to the conclusion of the trial court, we deem it probable that the young victim did identify the defendant upon viewing the photographs displayed to him, for his disclosure that he viewed photographs was in response to this inquiry: “. . . how did you identify Mr. Breaux? Did you go up to the Gretna Courthouse and did Mr. Muller show you Mr. Breaux?” However, a review of the record reveals that the young witness continually equivocated with regard to the identity of the person who displayed the photographs to him, sometimes stating that it was Detective Muller, once claiming that it was a lady who displayed the pictures, and another time stating that he did not believe it was Muller who presented the photographs. At trial Detective Muller again denied that he had conducted any such display.

Notwithstanding the defense burden of proving impermissible taint in connection with a pre-trial identification procedure, Breaux’s counsel elected to call only two of the three victims to testify at the suppression hearing, failing to call the third victim, whose trial testimony indicated a pre-trial photographic identification. Thus, defense failed to adequately avail itself of the opportunity to show suggestiveness or unfairness at the hearing and has not otherwise established that the identification was im-permissibly tainted.

A somewhat analogous situation was considered in State v. Judson, 329 So.2d 742 (La.1976). The victim of the crime in that case made a photographic identification of Judson which led to his arrest. Subsequently, a line-up was held, and again the victim positively identified the defendant. At a hearing on a motion to suppress identification it was revealed that the victim had once been shown a family album containing the defendant’s pictures. At the hearing the victim testified that he was unsure whether the album was displayed prior to the line-up but when pressured stated that he “guessed” the display took place before the line-up. At a proceeding subsequent to the suppression hearing, the victim testified that he was sure the album display took place after the line-up. At trial, the victim positively identified the defendant. On appeal Judson claimed the display took place before the line-up, thus tainting it and the subsequent in-court identification. The Court rejected Judson’s claims, noting that the burden of proving impermissible taint was his and finding that he failed to prove his assertion that the victim viewed the album before the line-up.

In the instant case, it is the defendant’s assertion that Detective Muller conducted a photographic display. This claim he has failed to prove. Moreover, even if we were to assume that whatever photographic display conducted was suggestive or unfair, we are of the opinion that the young victim’s in-court identification had a source independent of any photographic identification. On the day of the commission of the offense, the defendant and the victims were in a park when the defendant beckoned the boys into a shed. This young witness testified that the day was sunny, the time was just before dark, and the visibility was adequate. There is no indication that the victim’s sight or view was in any way diminished or impaired; his in-court identification of defendant was unequivocal. Therefore, the in-court identification does not violate defendant’s due process rights. State v. Cass, 356 So.2d 396 (La.1978). These assignments of error are without merit.

ARGUMENT NO. 3

ASSIGNMENT OF ERROR NO. 14

In its formal assignment of error, the defense urges that the trial court erred in sustaining a state objection to cross-examination of Detective Muller regarding the circumstances surrounding the taking of a statement from the defendant. Examination of the portion of the record designated does not reveal an objection as described in the assignment and an inspection of the cross-examination of Detective Muller reveals that defense counsel was allowed to inquire about the statement made by the defendant without objection by the state or other interference. The witness simply testified that Breaux related that he worked back of the gym with children all the time and would not “do anything like this.”

There was no ruling which curtailed the defense inquiry regarding the taking of Breaux’s statement. This assignment of error has no merit.

ARGUMENT NO. 4

ASSIGNMENT OF ERROR NO. 15

During cross-examination of Detective Muller defense counsel elicited testimony that in giving his account of the offenses the youngest of the three victims did not report to the officer that he had witnessed the crimes perpetrated upon the other boys. When the officer was asked if the middle child had said he personally witnessed the crimes committed with the other boys, he answered: “Not that I recall.” The defense then moved for production of the statements made to Detective Muller by the three victims, arguing that there were inconsistencies shown between the trial testimony of the victims and their statements, entitling it to the pre-trial statements of the victims who had earlier testified at trial. In support of its request for production the defense argues in brief that the case of State v. Nails, 255 La. 1070, 234 So.2d 184 (1970) sets forth the rule that defense is entitled to production of a witness’ pre-trial statements for impeachment purposes when defense counsel has shown that a material statement in the document is contrary to the witness’ sworn testimony.

On direct examination the youngest victim testified at trial that he had seen the crime committed upon his two companions but he reported that he had not related this to Detective Muller when he interviewed him. Defense contends that this discrepancy between the pre-trial statement and the testimony of the young victim meets the requirement of a showing of a contrary material statement in a police report, requiring the court to grant the defense request for production of the statements.

The state argues in brief that there was no material discrepancy such as would require production of the victims’ statements.

In State v. Lovett, 359 So.2d 163 (La.1978), a witness, Jensen, had testified that defendant instructed him to kill a man named Landry, a member of a multicraft labor organization. Defense established that in a pre-trial statement given to the sheriff’s department, Jensen had not related this instruction by the defendant since he did not think of it when he gave his statement. Defense sought production of the prior statement and the court denied it. In discussing the issue this Court recognized that Lovett’s counsel could require production upon a showing that a material statement in the document is contrary to the sworn testimony, in accordance with the rule set forth in State v. Nails, supra. Jensen gave a pre-trial statement devoid of the direct accusation against Lovett which he made at trial. This Court approved the trial court’s refusal to order production on the premise that there existed no genuine conflict between the statement and the trial testimony.

Applying the rationale of the Lovett case, we must determine that there was no genuine conflict with regard to the witnessing of defendant’s crimes against the other youths between this youngest victim’s testimony and any facts related in his prior statement. Like the witness in Lovett, this child admitted that his trial testimony differed from his statement to Muller at least with respect to the issue of whether he witnessed the other crimes. Therefore, a denial of production based on the asserted discrepancies between the statement of this youngest victim and his trial testimony was not incorrect.

After the trial court denied production of the prior statements of the three young victims sought on the basis of inconsistencies between those statements and the victims’ trial testimony, it was established through defense’s cross-examination of Detective Muller that the oldest of the three victims had claimed to have witnessed the crimes committed upon his companions when he was interviewed by the detective. This young victim had testified at trial that he had not witnessed the commission of the crimes by defendant upon his playmates.

While Detective Muller’s revelation of the youngster’s claim would appear to entitle defense to production of his statement, in view of his trial testimony that he did not view the commission of the crimes upon his friends, this circumstance does not entitle defendant to relief. The record reveals that defense counsel failed to renew his request for production of the victims’ pretrial statements. Thus, the fact that the defense appears to have been entitled to the production of this oldest child’s statement, upon demand therefor, is of no avail.

Decree

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

DENNIS, J., concurs in affirmance of the conviction and sentence and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur in the affirmance of the conviction and sentence of the defendant, but I would remand the case to the trial court for a hearing to determine if exculpatory evidence had been withheld from the defendant. See, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and State v. May, 339 So.2d 764 (La.1976).

      . Each count charged a single offense against an individual different from those named in the other two counts. All three counts .alleged the victim was under seventeen and the defendant over seventeen.

      . Code of Criminal Procedure article 489 provides:
      “If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the- court shall consider all the circumstances of the case and the entire course of the prosecution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy.”

      . In Lovett, the author dissented, expressing a view contrary to the majority’s determination that there was no genuine conflict. While I have some reservations regarding the issue in this case I nonetheless find it distinguishable from Lovett. In determining to dissent in Lo-vett, I considered that the issue involved a mature adult witness who, during his statement to police, desisted from saying that to which he testified under oath at trial — that Lovett instructed him to kill Landry. Under these circumstances, the argument that there existed no genuine conflict should be unavailing and Lo-vett’s counsel should have been supplied Jensen’s statement.
      The principle involved in the instant case may be akin to that presented in Lovett, but in this instance a considerably stronger argument may be made that because of the circumstances there exists here no genuine conflict. In any event, I need not decide if this is in my view an error of reversible proportions, for the holding in Lovett binds me and all other members of this Court for as long as it is the view of the majority.


author: MARCUS, Justice. DENNIS, J.,

text:
    Mrs. Elizabeth Ann Daigrepont BURMASTER, etc. v. GRAVITY DRAINAGE DISTRICT NO. 2 OF the PARISH OF ST. CHARLES et al.
    Nos. 62792, 62809.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Victor E. Stilwell, Jr., Ralph L. Kaskell, Jr., Deutsch, Kerrigan & Stiles, New Orleans, for defendant-applicant in No. 62792 and for defendant-appellant in No. 62809.
    R. Gray Sexton, Wilson & Sexton, Baton Rouge, amicus curiae for La. Engineering Society, the Consulting Engineers Council of La., Inc. and The American Society of Civil Engineers, La. Section.
    Vincent J. Glorioso, Jr., Arthur A. Crais, Jr., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff-respondent in No. 62792 and for plaintiff-appellee in No. 62809.
    Albert H. Hanemann, Jr., and William Hardy Patrick, III, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for defendant-respondent in No. 62792 and for defendant-appellant in No. 62809.
   MARCUS, Justice.

Mrs. Elizabeth Ann Daigrepont Burmas-ter, individually and as natural tutrix of her minor children, instituted this suit to recover damages resulting from the death of her husband, Elvin E. Burmaster, Jr. Named defendants are Gravity Drainage District No. 2 of the Parish of St. Charles, St. Charles Parish Police Jury, Parish of St. Charles, Fromherz Engineers, Inc., Riess Construction Company, and United States Fidelity & Guaranty Company. The Aetna Casualty & Surety Company (workmen’s compensation insurer of Reagan Equipment Company) intervened for burial expenses and compensation benefits paid to the surviving dependents of decedent.

Plaintiff alleged in her petition that her late husband was employed by Reagan Equipment Company as a mechanic. On April 23, 1977, while attempting to remove a heavy piece of equipment belonging to Gravity Drainage District No. 2 on premises owned and maintained by it and/or other defendants, he tripped on a protruding guard rail brace, causing him to fall into the water and drown. Plaintiff further alleged, inter alia, that the death of her husband was caused by Fromherz’s negligent design and installation of the guard rail with a brace which protruded into an area where it knew or should have known persons would be required to walk and by its failure to incorporate in the design and construction any signs warning persons of the danger presented by the protruding brace, all in violation of recognized industry standards.

Fromherz’s answer generally denied the allegations of plaintiff’s petition and asserted that plaintiff’s right of action had preempted under La.R.S. 9:2772 because the alleged incident occurred on April 23, 1977, more than ten years after the date of registry (March 20, 1962) in the mortgage office (St. Charles Parish) of acceptance of the work by the owner (St. Charles Gravity Drainage District No. 2). Thereafter, Fromherz filed a motion for summary judgment grounded on its claim that plaintiff’s right of action had pre-empted pursuant to La.R.S. 9:2772. In support of its motion for summary judgment, Fromherz filed an affidavit of its executive vice-president who alleged that on November 30, 1959, From-herz entered into a contract with Gravity Drainage District No. 2 whereby Fromherz was to provide engineering services for a storm drainage system in Norco, Louisiana. Under this contract, Fromherz prepared plans and specifications for construction of a drainage pumping station which included the guard rail and brace mentioned in plaintiff’s petition. The guard rail and brace were constructed by Riess Construction Company in compliance with the plans and specifications prepared by Fromherz. Gravity Drainage District No. 2 accepted the project (including the guard rail and brace) and filed its acceptance in the St. Charles Parish mortgage records on March 20, 1962.

The trial judge denied Fromherz’s motion for summary judgment, holding that La. R.S. 9:2772 was unconstitutional. On Fromherz’s application, we granted a writ to review the correctness of this ruling.

The sole issue presented for our resolution is whether La.R.S. 9:2772 is constitutional under both the state and federal constitutions.

Plaintiff first contends that La. R.S. 9:2772 is a special law prohibited by the Louisiana Constitution. She argues that the statute grants a certain number of persons within a class (architects and contractors) a special privilege or immunity which is not extended to all persons possessing the characteristics of the class.

Article 3, section 12(A)(7) of the Louisiana Constitution provides:

Section 12. (A) Prohibitions. Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:
(7) Creating private corporations, or amending, renewing, extending, or explaining the charters thereof; granting to any private corporation, association, or individual any special or exclusive right, privilege, or immunity.

In Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975), this court distinguished permissible general laws from special laws prohibited by our constitution:

General laws are those that operate equally and uniformly upon all persons brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification. In contrast, a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons. Viewed in this context, the constitutional proscription against special laws on certain subjects . represents an important safeguard against the abuse of legislative power on behalf of special interests, (footnotes omitted)

We must thus determine whether La.R.S. 9:2772 operates equally upon all persons of a designated class founded upon a reasonable and proper classification or whether the statute affects only a certain number of persons within a class and not all persons possessing the characteristics of that class.

La.R.S. 9:2772 provides in pertinent part:

A. No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
B. The causes which are pre-empted within the time described above include any action:
(3) For injury to the person or for wrongful death arising out of any such deficiency; and
E. The pre-emptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property-
F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.

It is conceded by the parties before us that La.R.S. 9:2772 includes within its coverage architects and contractors. Plaintiff contends that the express language of subsection E of the statute excluding the owner, lessor and tenant from its coverage renders the statute an impermissible special law. We do not agree.

We consider that there is a valid distinction between persons performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property and a person in possession or control, as owner, lessor, tenant or otherwise, of such improvement at the time of the incident giving rise to the cause of action. After the date of registry in the mortgage office of acceptance of the work by the owner, there exists the possibility of neglect, abuse, poor maintenance, mishandling, improper modification, or unskilled repair of an improvement to immovable property by the owner, lessor or tenant. It is difficult for the architect or contractor to guard against such occurrences because, after the acceptance by the owner, the architect or contractor ordinarily has neither control of the improvement nor the right to enter or inspect the improvement. It is thus reasonable for the legislature to have concluded that those with access to and control of improvements to immovable property, (owner, lessor and tenant) should not be accorded the protection of the pre-emptive period established by La.R.S. 9:2772. Moreover, subsection F specifically provides that nothing in this section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner, lessor or lessee of an immovable by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property. Our law creates special obligations and rules of liability applicable to the owner, lessor and tenant of immovable property which have no application to the architect or contractor. This is an additional ground of distinction from which the legislature could have reasonably excluded the owner, lessor and tenant of immovable property from the protection of the pre-emptive period established by La. R.S. 9:2772.

Plaintiff also contends that La.R.S. 9:2772 is a prohibited special law because it excludes from its coverage materialmen and those furnishing or manufacturing construction components.

La.R.S. 9:2772 A provides:

No action whether ex contractu, ex de-licto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property: . (emphasis added)

We need not reach the issue of whether this statutory language includes or excludes materialmen and those furnishing or manufacturing construction components because, even assuming arguendo that they are excluded from the coverage of the statute, we nonetheless find the statute constitutional as the exclusion is founded on a valid distinction. Suppliers and manufacturers, who typically supply and produce components in large quantities, make standard goods and develop standard processes. They can thus maintain high quality control standards in the controlled environment of the factory. On the other hand, the architect or contractor can pre-test and standardize construction designs and plans only in a limited fashion. In addition, the inspection, supervision and observation of construction by architects and contractors involves individual expertise not susceptible of the quality control standards of the factory. Hence if, as plaintiff maintains, ma-terialmen and those furnishing or manufacturing construction components are excluded from the coverage of the statute, it is reasonable for the legislature to have concluded that the product and work conditions of the materialmen and those furnishing or manufacturing construction components are sufficiently different from that of the architect an contractor such that the protection of the pre-emptive period established by La.R.S. 9:2772 should not be accorded to that class.

Accordingly, La.R.S. 9:2772 is a general law and not a special law prohibited by La.Const. art. 3, § 12(A)(7).

Plaintiff next contends that La. R.S. 9:2772 offends the equal protection guarantees of both the state and federal constitutions.

Both the state and federal constitutions mandate equal protection of the laws. U.S. Const, amend. XIV; La.Const. art. 1, § 3. The equal protection guarantee of our constitution, however, was intended only as a restatement of the federal equal protection clause. State v. Barton, 315 So.2d 289 (La.1975).

Generally, the guarantee of equal protection requires that state laws affect alike all persons and interests similarly situated. Succession of Robins, 349 So.2d 276 (La.1977). Where, as here, there is no involvement of a “suspect classification” or “fundamental right,” traditional equal protection analysis sustains a classification if it is not arbitrary and bears a rational relationship to a legitimate state interest. Everett v. Goldman, 359 So.2d 1256 (La.1978); Succession of Robins, supra; State v. Everfield, 342 So.2d 648 (La.1977). The legislature has a wide scope of discretion in enacting laws which affect some groups of citizens differently from others. The constitutional safeguard of equal protection is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

The classification established by La.R.S. 9:2772 affects alike all persons and interests similarly situated. Clearly, the classification is not arbitrary; rather, it is founded on reasonable grounds of distinction. We are satisfied that this classification bears a rational relationship to a legitimate state interest. Absent the statute now before us, architects and contractors would remain potentially liable for past-construction projects indefinitely. It is particularly within the scope of the legislature to adjust time periods affecting the imposition of liability for past acts.

In sum, La.R.S. 9:2772 does not offend the equal protection guarantee of either the state or federal constitutions.

Plaintiff contends that the effect of La.R.S. 9:2772 is to pre-empt her cause of action against Fromherz before such cause of action has arisen and thus violates the due process guarantees of both the federal and state constitutions. U.S. Const, amend. XIV; La.Const. art. 1, § 2. She argues that the statute deprives her of an adequate remedy by due process of law for injuries suffered in violation of La. Const, art. 1, § 22. Plaintiff further argues that the statute is contra bonos mores in that it denies her a cause of action before its accrual.

Where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. See Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 78 L.Ed. 342 (1933); Pritchard v. Norton, 106 U.S. 124, 132, 1 S.Ct. 102, 27 L.Ed. 104 (1882). However, where the injury has not yet occurred and the cause of action has not yet vested, the guarantee of due process does not forbid the creation of new causes of action or the abolition of old ones to attain permissible legislative objectives. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Our jurisprudence has recognized the validity of legislative regulation of causes of action, including replacement and even abolition, that one person may have against another for personal injuries. See Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971); Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); see also Heirs of Fruge v. Blood Services, 506 F.2d 841 (5th Cir. 1975).

In the instant case, plaintiff’s cause of action would not have arisen until the death of her husband, which occurred more than fifteen years after the date of registry in the mortgage office of acceptance of the work by the owner. Hence, assuming the applicability of La.R.S. 9:2772 to the facts and parties before us (trial court has not yet decided this because its ruling was based solely on the unconstitutionality of the statute), its effect is to abolish any cause of action plaintiff might have had against Fromherz for wrongful death arising out of any deficiency in the design, planning, inspection, supervision, or observation of construction or the construction of an improvement to immovable property allegedly attributable to Fromherz when such action is brought more than ten years after the date of registry in the mortgage office of acceptance of the work by the owner. The application of La.R.S. 9:2772 herein does not bar plaintiff’s cause of action; rather, it prevents what might otherwise he a cause of action from ever arising. Thus, injury or~3eath occurring after "the preemptive period established by the statute forms no basis for recovery against those whom the statute protects and a cause of action never vests. The harm that has been done (allegedly attributable to Fromherz) is damnum absque injuria — a loss which does not give rise to an action for damages against the person causing it.

Accordingly, La.R.S. 9:2772 does not vio-, late the due process guarantees of either the state or federal constitutions, or a person’s right of access to the courts protected by La.Const. art. 1, § 22.

It is fundamental that a statutory enactment of the legislature is presumed to be constitutional. State v. Everfield, supra. This presumption continues until the party challenging the act’s constitutionality establishes that it contravenes some provision of the state or federal constitution. Everett v. Goldman, supra. We have reviewed the contentions urged by plaintiff in her attack upon the provisions of La.R.S. 9:2772 and find the statute constitutional under both the state and federal constitutions.

DECREE

For the reasons assigned, the ruling of the district court is reversed, and the case is remanded to the district court for further proceedings consistent with the views herein expressed. Fromherz Engineers, Inc.’s appeal (No. 62,809) is dismissed.

DENNIS, J.,

concurs, but disagrees with the flat statement that the state constitution provides no greater protection against discriminatory laws or other state action than the Fourteenth Amendment.

APPENDIX TO OPINION

1. La.R.S. 9:2772 provides:

A.No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement in whole or in part, more than ten years after the improvement has been thus occupied by the owner; or
(3) If the person furnishing the design and planning does not perform any inspection of the work, more than ten years after he has completed the design and planning with regard to actions against that person.
B. The causes which are pre-empted within the time described above include any action:
(1) For any deficiency in the design, planning, inspection, supervision or observation of construction or in the construction of an improvement to immovable property:
(2) For damage to property, movable or immovable, arising out of any such deficiency;
(3) For injury to the person or for wrongful death arising out of any such deficiency; and
(4) Any action brought against a person for the action or failure to act of his employees.
This pre-emptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.
C. If such an injury to the property or to the person or if such a wrongful death occurs during the ninth year after the date set forth in Sub-section A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than eleven years after the date set forth in Sub-section A (even if the wrongful death results thereafter).
D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Sub-section A of this Section, shall prescribe by the applicable prescriptive periods established by law for such actions.
E. The pre-emptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property-
F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
G. Causes of action which exist prior to July 29, 1964 shall be pre-empted one year from said date or by the applicable pre-emptive period established by this Section, whichever is later. Added Acts 1964, No. 189, § 1.

      . See appendix to the opinion for full content of La.R.S. 9:2772.

      . 362 So.2d 799 (La.1978). A case is appeala-ble to this court if a law has been declared unconstitutional. La.Const. art. 5, § 5(D)(1). However, a trial judge’s refusal to render summary judgment is not appealable. La.Code Civ.P. art. 968. However, because of our policy of granting review in a case where a law has been found unconstitutional as well as the irreparable harm that would result from the present ruling, if not correct, we granted From-herz a writ of review. See Everett v. Goldman, 359 So.2d 1256, 1260 n. 1 (La.1978).

      . Fundamental rights include such rights as free speech, voting, interstate travel and other fundamental liberties. Suspect classifications are those involving such unalterable traits as race, alienage and religion. See Everett v. Goldman, infra.

      . La.Const. art. 1, § 22 provides:
      All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.