text:
    STATE of Louisiana, Appellee, v. Joseph SIEGEL, Appellant.
    No. 60369.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      Alton T. Moran, Director, Vincent Wilkins, Jr., Appellate Counsel, Baton Rouge, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie F. Perez, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of simple burglary. La.R.S. 14:62. The state sought enhanced punishment for the defendant as a multiple offender. La.R.S. 15:529.1. After hearing, the district court found the defendant to be a fourth offender. Accordingly, it sentenced him to life imprisonment.

(1)

Upon his appeal, we affirm the defendant’s conviction. No arguable merit is possessed by the two assignments of error as to it:

Assignment 2 relates to the allegedly prejudicial admission of police photographs of the defendant taken on the day of his arrest. Following his arrest and prior to trial, the defendant had grown a beard and mustache and had shaved off his hair. The only real issue at the trial was the identity of the offender.

Aside from the circumstances that no prejudice is shown by the admission of the photographs for a relevant purpose (with full disclosure that they pertained only to the defendant’s arrest for the present offense), the defendant did not object to the admission of these photographs at the time they were introduced. Tr. 145. He therefore cannot complain after verdict of the alleged error. La.C.Cr.P. art. 841.

Assignment 3 complains of the in-court identification of the accused, as allegedly tainted by an illegal one-on-one arrest-scene identification. After a hearing held outside the presence of the jury, the trial court found that the victim could testify on the basis of her identification and observation of the defendant at the time of the offense.

The trial court permitted this in-court identification, upon its finding that the witness’ identification had an adequate basis independent of the post-arrest confrontation. We find no error in that ruling. State v. Taylor, 347 So.2d 172, 180 (La.1977); Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

(2)

By Assignment 2-A, the defendant correctly contends that, under the evidence taken at the sentencing hearing, he was improperly found to be a fourth felony offender and subject, as such, to life imprisonment as enhanced punishment for the present offense. La.R.S. 15:529.1.

The state introduced evidence of felony convictions of: (a) 1959 (burglary, 9 years), (b) 1961 (attempted escape from the peni-, tentiary, while confined there for the burglary conviction; 1 year sentence, consecutive to burglary sentence), and (c) 1968 (unauthorized use of credit card, six years, consecutive to previous sentences; offense committed while on parole), from which sentences the penitentiary discharged him in 1972. The present (or fourth) offense was committed in 1973.

The defendant correctly contends that the 1961 attempted escape conviction (italicized above) (which had already enhanced the punishment for the burglary conviction) cannot be used as basis for additional enhanced punishment as constituting a separate prior conviction for purposes of La.R.S. 15:529.1. State v. Taylor, 347 So.2d 172 (La.1977); State v. Cox, 344 So.2d 1024 (La.1977); State v. Schamburge, 344 So.2d 997 (La.1977) (all decided prior to the present sentencing hearing).

The state does not dispute this. However, it points out that no objection on that basis was made at the time the 1961 escape conviction was introduced. Alternatively, it suggests that, if we vacate the sentence, the case should be remanded for re-sentencing. (At this time, the state notes, it can prove yet other felony convictions pleaded, but which it did not attempt to prove, once it had proved the requisite four convictions).

The state and the defendant are entitled to the latter relief only. The requirement of objections to errors prior to verdict, upon penalty of waiver, La.C.Cr.P. art. 841, does not apply to an illegal sentence. An illegal sentence may be vacated and corrected at any time and at any stage of the proceedings, including on appeal. La.C.Cr.P. art. 882; State v. Glantz, 253 La. 883, 220 So.2d 711 (1969). Cf. also La.C. Cr.P. art. 362(4).

The defendant correctly complains that he was sentenced to life imprisonment as a fourth offender, whereas the state’s evidence only permitted a lesser enhanced punishment of him as a third offender. Under the evidence, the sentence imposed upon him was not authorized by law and is therefore an illegal sentence. State v. Johnson, 220 La. 64, 55 So.2d 782 (1951). The defendant is entitled to have vacated this illegal sentence.

Decree

For the reasons assigned, we affirm the conviction. The sentence is vacated and set aside. The case is remanded to the trial court for sentencing consistent with the views herein expressed.

CONVICTION AFFIRMED, SENTENCED VACATED, CASE REMANDED FOR RE-SENTENCING.


source: Caselaw Access Project

author:
CALOGERO, Justice.
      DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana v. Ermond ASHLEY.
    No. 60378.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Lewis Weinstein, Richard C. Goorley, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Eugene W. Bryson, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Ermond Ashley was charged by bill of information with receiving stolen goods having a value of over $500 in violation of La.R.S. 14:69. The defendant waived his right to trial by jury and' on April 18, 1977 was tried before a judge alone and found guilty as charged. He was sentenced to serve seven (7) years at .hard labor in the custody of the Department of Corrections. On appeal to this Court defendant now relies on three assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

In each of these assignments defendant contends that the trial court erred in denying his motion for a new trial because there was no evidence proving the commission of the crime other than the defendant’s own confession. He in effect contends that he cannot be legally convicted on his own uncorroborated confession without independent proof of his actually having knowingly received stolen property. The facts which preceded defendant’s arrest follow.

On September 2, 1976, Beverly Meroski and the Warehouse Clothing Store in Shreveport were robbed by two men armed with a pistol. During the robbery, in addition to cash and various other items, two rings belonging to William P. Meroski, Beverly Meroski’s husband, were stolen. At trial there was testimony from the owner of the ring, William P. Meroski, who had dealt in diamonds at one period for approximately seven years, and from John W. Flournoy, Jr., co-owner of Flournoy Jewelers in Shreveport, qualified as an expert in diamond appraisals, that the two rings had a value well in excess of $500. The state’s contention at trial was that on the same day or shortly thereafter the defendant came into possession of these rings knowing or having good reason to know that they were stolen. An oral inculpatory statement by the defendant introduced at trial indicated that on the day of the robbery, the defendant gave one Glen Miller a ride from Bossier City to Shreveport; that Miller told the defendant that he had just robbed the Warehouse Clothing Store and turned over two rings and a three piece suit to the defendant, indicating to him that they were items taken in the robbery; and that the defendant then disposed of the rings by selling them to two men in the Moore Town area of Shreveport. There was also testimony from Mrs. Meroski that several weeks after the robbery defendant came into the store and told her that he had had the rings but that they were then in the possession of a man in Dallas. According to Mrs. Mero-ski, the defendant told her that he would go to Dallas, retrieve the rings, and sell them back to her for $100, which was what he had received for the rings. Mrs. Meroski agreed to and did give the defendant $45 for the bus fare to Dallas, but the defendant did not return with the rings. Detectives Kinchen and Jackson of the Shreveport Police Department testified that on September 17,1976, the defendant was taken into custody, advised of his rights, and after he waived those rights, was interrogated by the detectives. According to their testimony, the defendant told him that he knew what they wanted; that he knew where he could get the rings back. They then released the defendant telling him to go get the merchandise and return by 6:00 p.m. The defendant did not return and two weeks later an arrest warrant was issued. He was subsequently picked up and formally booked in connection with this charge.

It is of course true that a person cannot legally be convicted on his own uncorroborated confession without proof that a crime has been committed by someone, i.e., without proof of the corpus delicti. State v. Freetime, 334 So.2d 207 (La.1976); State v. Sellers, 292 So.2d 222 (La.1974); State v. Brown, 236 La. 562, 108 So.2d 233 (1959); State v. Calloway, 196 La. 496, 199 So. 403 (1940); State v. Morgan, 157 La. 962, 103 So. 278 (1925).

Whether the facts in this case fit that jurisprudence as properly applied, however, we need not determine here, for the issue is not before us on this appeal.

In criminal matters, the scope of this Court’s appellate jurisdiction extends only to questions of law. La.Const. Art. 5, Sec. 5(C) (1974). A contention that the verdict was based on insufficient evidence is essentially a question of fact. Only where the defendant has moved for a judgment of acquittal in a trial before a judge alone (La.C.Cr.P. art. 778) or for a new trial (La. C.Cr.P. art. 851), based on the argument that there was no evidence at all of the crime or of an essential element of the crime, is a question of law presented which this Court can review. See State v. Blackstone, 347 So.2d 193 (La.1977); State v. Alexander, 339 So.2d 818 (La.1976); State v. Douglas, 278 So.2d 485 (La.1973). In the instant case, held before a judge alone, the defendant did not move for a judgment of acquittal but did move for a new trial. However, his motion for a new trial, which argued simply that the verdict was contrary to the law and the evidence, was not filed until three days after the defendant was sentenced. Article 853 of the Code of Criminal Procedure provides that except in cases where a motion for a new trial is based on an argument of newly discovered evidence, “a motion for a new trial must be filed and disposed of before sentenc[ing].” Should there be good cause for defendant’s failure to file his motion for new trial timely this same article also provides for postponing the imposition of sentence to give the defendant additional time to prepare and file his motion. Since neither a motion for a new trial nor a request for postponement of sentence was timely filed in this case the issue raised by defendant’s assignments are not properly before this Court for review.

Should there be merit in defendant’s contention, concerning the absence of corroborating evidence establishing the corpus de-licti, relief may yet be available in the event there is filed an application for habe-as corpus. See concurring opinion by this author in State v. Blackstone, 347 So.2d 193 (La.1977).

Decree

For the foregoing reasons the conviction and sentence of defendant Ermond Ashley is affirmed.

AFFIRMED.

DIXON, J., concurs with reasons.

DIXON, Justice

(concurring).

I respectfully concur.

While independent evidence tending to prove the “corpus delicti” is necessary, that proof need not encompass all of the elements of the offense. A confession may be used to supplement the proof of the corpus delicti provided independent proof corroborates the confession, thus indicating its trustworthiness. Smith v. U. S., 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); Opper v. U. S., 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954).

      . While the record does not seem to contain evidence outside the confession that defendant at any point in time possessed the stolen rings, there was evidence that the rings defendant admitted to having possessed were taken on that very day in an armed robbery of Beverly Meroski.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Fred JONES.
    No. 60381.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Caliste Beard, Jr., Ltd., Caliste Beard, Jr., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., David F. Hutchins, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The issue presented by this appeal is whether the trial court has the discretion to refuse to permit defendant to call as a witness one who had been present in court while other witnesses were testifying without the consent or knowledge of the defendant or his counsel.

Defendant Fred Jones was indicted by the Lafayette Parish Grand Jury for the attempted murder of Charles McBride. La. R.S. 14:27 and 14:30.1. After a trial by jury, defendant was found guilty as charged and was sentenced to serve fourteen years at hard labor.

Undisputed evidence at the trial revealed that Jones shot McBride with a pistol and ran into him with an automobile outside a nightclub. However, there was conflict in the witnesses’ testimony as to whether Jones fired in self-defense and whether McBride jumped onto the moving vehicle in an attempt to attack Jones. The incident occurred shortly after two groups of customers left the nightclub. McBride and his companions testified for the State. Jones and his friends testified on his behalf.

At the commencement of the trial, State and defense witnesses were called forward by name and removed from the courtroom. The State, however, did not call forward several persons whom it had subpoenaed, including Mortega Rowhany. Consequently, Rowhany remained in the courtroom during the testimony of the State’s first witness, the victim, McBride. After a brief recess, defense counsel moved the court to subpoena Rowhany, to call him as a defense witness, and to place him under sequestration, stating that he had discovered during the recess that Rowhany’s testimony would be favorable to the defendant. The trial court sustained the State’s objection and overruled the defendant’s motion because the witness, Rowhany, had been present in the courtroom while the victim was testifying. In response to the State’s objection, the trial court further denied the request of defense counsel to make a proffer of Row-hany’s testimony out of the presence of the jury.

Although we have consistently held that the action to be taken in the face of a violation of a sequestration order rests within the sound discretion of the trial judge, State v. Ardoin, 340 So.2d 1362 (La.1976); State v. Batts, 324 So.2d 415 (La.1975); State v. McKinney, 302 So.2d 917 (La.1974); State v. Browning, 290 So.2d 322 (La.1974), the discretion in this regard is not unlimited. Article I, Section 16 of the Louisiana Constitution of 1974 guarantees an accused the right to compel the attendance of witnesses and to present a defense. The Sixth Amendment to the United States Constitution provides that the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor, and this right is enforceable against the States through the Fourteenth Amendment. Washington v. Texas, 338 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

In Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893), the Supreme Court recognized that a trial judge’s authority to exclude a disobedient witness is limited and observed:

«* * * • jf a wjtness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.” (Emphasis added.)

This initial statement of the rule was not expressly based on the constitution and may have been intended to apply only to federal courts. In Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972), however, the Court of Appeals defined the “particular circumstances” justifying exclusion as the “ ‘consent, connivance, procurement or knowledge of the defendant or his counsel’ in the unauthorized presence of the witness,” and held that exclusion of a defense witness in the absence of such particular circumstances violated defendant’s Sixth Amendment rights. This holding was reaffirmed in Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975), and a similar rationale has been adopted by other federal courts of appeals. United States v. Kiliyan, 456 F.2d 555 (8th Cir. 1972); Taylor v. United States, 388 F.2d 786 (9th Cir. 1967); United States v. Schaefer, 299 F.2d 625 (7th Cir. 1962), cert. denied, 370 U.S. 917, 82 S.Ct. 1553, 8 L.Ed.2d 497.

Although our jurisprudence allowing trial judges to enforce sequestration pursuant to La.C.Cr.P. art. 764 by excluding testimony of disobedient witnesses does reflect a legitimate state interest in preventing testimonial influence, that interest is not sufficient to override the defendant’s rights to have compulsory process and to present a defense under either the federal or the state constitution. This is not to imply that there may be no risk of a witness coloring his testimony to conform to what has gone before. But our adversary system reposes judgment of the credibility of all witnesses in the jury. Excluding the witness’s testimony, in the absence of a sequestration violation with the consent or knowledge of the defendant or his counsel, is not a constitutionally permissible means of insuring reliable testimony. Cf. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).

In the instant case, the trial court excluded the testimony of Rowhany solely because he had been present during the testimony of the other witnesses. In oral argument the defendant’s attorney stated that he was not aware that Rowhany had been a witness to the alleged crime or that he had been present in the courtroom during the trial. There is nothing in the record to indicate that Rowhany’s presence was brought about with the consent, connivance, procurement or knowledge of the defendant or his counsel. For these reasons it appears that the trial judge erred in refusing to allow the witness to testify.

Because the trial judge denied defense counsel’s motion to make a proffer of Row-hany’s testimony, we are unable from the record before us to determine whether the testimony was material and significant to a degree which would render its exclusion prejudicial to the substantial rights of the accused, or which would constitute a substantial violation of a constitutional or statutory right. Since Rowhany’s testimony may have been detrimental or unhelpful to the defense asserted by the accused, it is not necessary at this time to reverse the conviction and order a new trial. Instead, we remand to the district court for an evi-dentiary hearing limited to the content of Rowhany’s testimony, its relevancy and materiality to the petitioner’s defense, and to a determination of whether Rowhany’s presence during the testimony of other witnesses was with the consent, connivance, procurement or knowledge of the defendant or his attorney.

If the district court finds that Rowhany’s testimony was material and significant to the defendant’s case, and if it determines that there was no knowing violation of the rule of sequestration, then we reserve to the trial court judge the power to grant a new trial. If, however, the court finds that the testimony was not material or significant to the defense, the right to appeal from such ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

The case is, therefore, remanded to the district court for further proceedings in accordance with this opinion.

SANDERS, C. J., and MARCUS, J., concur.

      . Unlike former R.S. 15:371, La.C.Cr.P. art. 764 does not disqualify the witness for disobedience of an order excluding him from the courtroom. See, Article 764 comment (b). In fact, the only statutory penalty for such disobedience is the punishment of the witness for contempt. La.C.Cr.P. arts. 21, 22.

      . Id. at 1156.

      . La.C.Cr.P. art. 921; see also, United States v. Atkins, 487 F.2d 257 (8th Cir. 1973), in which the court noted that not every erroneous exclusion of testimony will amount to prejudicial error.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. John WINZER.
    No. 60404.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Paul H. Kidd, Monroe, George M. Stickler, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., H. Russell Davis, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was charged by bill of information with the crime of manslaughter (R.S. 14:31) for the killing of one James Otis Baker. After a trial by jury defendant was found guilty as charged and sentenced to five years at hard labor in the custody of the Department of Corrections.

The incident which led to defendant’s conviction occurred on November 26, 1976 in Arcadia, Louisiana. On that afternoon defendant and a friend drove to a local bar and arrived just as the victim, James Otis Baker was leaving. The victim, mistaking defendant for a person who had beaten him in a fight the week before, physically attacked defendant until seized by several bystanders. Immediately after the fight defendant got into his car and backed it a short distance across the highway. He then took from the trunk of his car a .22 caliber rifle and fired four shots at the victim striking him once. James Otis Baker was declared dead on arrival at the Arcadia Hospital.

Defendant has specified two assignments of error for the purpose of his appeal but has briefed and argued only one of these. The assignment neither briefed nor argued will be considered abandoned. State v. Jones, 340 So.2d 563 (La.1976).

ASSIGNMENT OF ERROR NO. 2

In defendant’s only argued assignment he alleges that the trial court erred in denying his motion for acquittal and/or mistrial urged at the conclusion of the state’s case on the ground that the state failed to prove an essential element of the crime, i. e. that the cause of the victim’s death was the gunshot wound inflicted by defendant.

Defendant argues that La.C.Cr.P. art. 105 and R.S. 33:1565 mandate in cases involving the apparent commission of a crime preparation a coroner’s report certifying the cause of death and a proces verbal of an autopsy. He apparently contends that such “competent evidence of death and the cause thereof” (art. 105 C.Cr.P.) is the only legal evidence of such, and that since there was no autopsy performed in this case there was no legal evidence of that element of the crime (death and the cause thereof) to support his conviction.

Initially we note that the error raised by defendant in this assignment has not been properly preserved for review by this Court. It is well settled that a contention that no evidence was produced to prove an essential element of the crime charged presents a question of law which can be reviewed by this Court. State v. Williams, 354 So.2d 152 (La.1977); State v. Blackstone, 347 So.2d 193 (La.1977). However, the proper procedural vehicle for preserving a “no evidence” issue for appellate review in a jury trial is by motion for new trial. C.Cr.P. art. 851(1). Only in trials by judge alone can such an issue also be raised by motion for judgment of acquittal. C.Cr.P. art. 778. See also, State v. Williams, supra, and State v. Blackstone, supra. Hence, defendant improperly asserted his contention in this jury trial by a motion for a judgment of acquittal (or its counterpart, motion for directed verdict). It was properly denied.

Even if the merit of defendant’s contention were to be considered, however, it would be without merit. Although a coroner’s autopsy is competent evidence to prove the fact of death and cause of death, the same can be proven by any competent evidence. In State v. Vincent, 338 So.2d 1376 (La.1976) this Court discussed the purpose of Article 105’s requiring the coroner to make a written report of his investigation to the district attorney:

Article 105 of the Code of Criminal Procedure, as we said in State v. Allen, 273 So.2d 504 (La.1973), “is designed primarily to provide the flow of information needed by the office of the district attorney in cases of apparent homicide . Non-compliance with its provisions has no bearing upon the requirements of due process.”

See also, State v. Holmes, 258 La. 221, 245 So.2d 707 (1971). While defendant’s argument is not frivolous, we find that there was some evidence from which the jury could conclude that the victim died as a result of the gunshot wound inflicted by the defendant. Despite the lack of an autopsy or direct medical testimony as to the cause of the victim’s death, several eyewitnesses testified that they saw defendant shoot the victim. These same witnesses also testified that they saw the victim fall to the ground whereupon the pupils of his eyes began to roll back into his head. He was then immediately transported to the Arcadia Hospital, described variously as one-fourth mile and one and one-fourth miles away. Furthermore, the doctor on duty in the emergency room of the hospital testified that the victim was dead on arrival and that the only injury noted was a gunshot wound in the victim’s flank. Based upon these facts, we find that some evidence was produced from which the jury could conclude that the victim died as a result of the gunshot wound inflicted by the defendant.

This assignment lacks merit.

Decree

For the foregoing reasons the conviction and sentence of the defendant John Winzer is affirmed.

AFFIRMED.

      . In brief defendant contends that it was the denial of his motion for mistrial which forms the substance of this complaint. Contrary to these contentions the record in this case reflects only a motion for acquittal. There was no motion for a mistrial.

      . Webster’s Seventh New Collegiate Dictionary defines “flank” pertinently as “the fleshy part of the side between the ribs and the hip”.


author: SUMMERS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Robert E. MEUNIER.
    No. 60410.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

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

In a bill of information it was charged that from June 26, 1975 through July 12, 1975 Robert E. Meunier made repeated telephone communications in a manner reasonably expected to annoy, abuse, torment, harass, embarrass or offend Mrs. Joseph Cer-niglia. La.Rev.Stat. 14:285 A(2). Meunier elected to be tried by a jury. He was found guilty and sentenced to serve one year in the parish prison, the sentence being suspended, and Meunier was placed on two years active supervised probation on condition that he engage in gainful employment and receive psychiatric treatment.

The assignments of error are grouped into four arguments in support of defendant’s appeal.

At the beginning of June of 1975 Mrs. Joseph Cerniglia began receiving numerous telephone calls, sometimes thirty-eight a day. She thereupon reported these annoyances to the telephone company. At their suggestion she kept a record of the calls. Thereafter they installed a lock-in device on her phone. As a result, it was ascertained that the harassing calls originated from phone number 486-3016, which belonged to the residence where defendant lived with his parents. The police were advised and this prosecution resulted.

I.

In an application for a bill of particulars the defense asked for 1) the number, hour and date of the offensive phone calls, 2) the person, phone number and location to which each of these phone calls was made, 3) the number of the phone from which each call was made, and 4) the particular language constituting the charge.

The State answered 1) there were innumerable calls from June 26, 1975 through July 10, 1975, 2) the person to whom the calls were made was Mrs. Joseph Cerniglia, 5820 Louisville Street in New Orleans, Louisiana, and the defense was not entitled to the information requested in 3) and 4). However, at an August 15, 1975 hearing held on the application for bill of particulars, defense counsel indicated that he was satisfied with the State’s answer to its request number 2, and the court allowed the defense to view the physical evidence in the prosecutor’s possession. The physical evidence would include the list of offensive phone calls compiled by Mrs. Cerniglia thus furnishing the defense with the number, hour, date and content of the calls requested in number 1) of the application for particulars. Whereupon the trial judge found the State’s response to be adequate, and the defense objected, assigning error.

In response to an application for particulars the State is not required to disclose the details of the evidence it intends to use at the trial to support the prosecution. Generally speaking, the function of the bill of particulars is to inform the accused of matters which are pertinent to the charge against him, which the trial judge in his sound discretion considers necessary in fairness to permit the accused to defend himself. La.Code Crim.Pro. art. 484; State v. Thornton, 351 So.2d 480 (La.1977); State v. Bourg, 248 La. 844, 182 So.2d 510 (1966).

On the basis of the State’s response and the hearing evidence, there was no abuse of discretion in the trial judge’s ruling.

II.

In a motion to quash the bill of information, the defense alleged that the statute (La.Rev.Stat. 14:285 A(2)) and bill of information were unconstitutional, being in derogation of the Constitution of Louisiana by failing to adequately inform defendant of the nature and cause of the accusation against him. In addition, the motion alleged that the bill of information failed to specify whether the calls were anonymous, the number and date of the calls, or whether they involved conversations. The motion was denied and the ruling is assigned as error.

Pertinent portions of the statute in question provide that “[n]o person shall . [m]ake repeated telephone communications anonymously or otherwise in a manner reasonably expected to annoy, abuse, torment, harass, embarrass or offend another, whether or not conversation ensues . . .” La.Rev.Stat. 14:285 A(2). Section 13 of Article I of the Constitution requires that “In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.”

Upon the principles thus announced the defense contends that the wording of the statute and the bill of information is so vague and overbroad as to impair the right of the accused to properly defend himself, thus the statute should be declared unconstitutional, and the bill of information should be quashed.

The constitutional guarantee that an accused be informed of the nature and cause of the accusation against him means that penal statutes, upon which bills of information or indictments are based, must describe the unlawful conduct with sufficient particularity and clarity to enable ordinary men of reasonable intelligence to discern their meaning and conform their conduct accordingly. State v. de la Beckwith, 344 So.2d 360 (La.1977); State v. McCoy, 337 So.2d 192 (La.1976).

The words “annoy”, “harass” and “embarrass” found in the statute are accompanied by the specific verbs “abuse”, “torment” and “offend”. By their association in the statute the words acquire a restricted and definite meaning. As this Court pointed out in State v. Hertzog, 241 La. 783, 131 So.2d 788 (1961), upholding the constitutionality of the language now embodied in Section 285 A(l), upon the authority of the rule noscitur a sociis: “. . . general and specific words, capable of analogous meaning, when associated together, take color from each other, so that general words are restricted to a sense analogous to less general.”

Applied to the statute before us the rule would require that the words “annoy”, “harass”, and “embarrass” be considered in conjunction with specific verbs with which they are associated. Thus, “annoy”, “harass”, and “embarrass” take color from the accompanying verbs “abuse”, “torment” and “offend” acquiring thereby more restricted and definite meanings. In the restricted sense which results the statute is neither vague nor overbroad. The words are common and ordinary with well-defined meanings. It is common knowledge that it is unlawful to use a telephone for the purposes set forth in the statute. It would be impracticable to set forth in detail the numerous forms harassment could take.

A statute or bill of information meets the constitutional test that it must inform the accused of the nature and cause of the accusation against him if the bill of information or indictment contains all of the essential elements of the crime intended to be charged in sufficient particularity 1) to enable the defendant to prepare for trial, 2) to allow the court to determine the propriety of the evidence which is submitted upon the trial in order that it may impose the correct punishment upon a verdict of guilty, and 8) to afford protection from subsequent prosecutions for the same offense. State v. Edwards, 287 So.2d 518 (La.1973) and cases cited there. The bill of information meets this test.

The contention that the State’s refusal to inform defendant whether the calls were anonymous made the charge vague and indefinite is not well-founded. The statute defining the offense is violated whether the calls are anonymous or otherwise, and it is immaterial whether conversation ensues. It is noted, moreover, that the judge ordered the prosecutor to permit access to the physical evidence in its possession, which included the victim’s list of calls giving the date, time and content of each call relied upon by the prosecution.

It appears from the defense argument that the real complaint is that the bill of information did not set out the nature of the evidence by which the State expected to prove the charge. This the State is not required to do. The purpose of an indictment or information is to inform the accused and the court so that the defense can be prepared, the evidence can be regulated, and to support a plea of former jeopardy in the event of another trial. State v. Edwards, supra; State v. Glover, 262 La. 495, 263 So.2d 866 (1972).

Considered according to their usual and popular meaning, the words of the statute and the bill of information adequately informed the defendant of the nature and cause of the accusation against him.

III.

Four assignments relate to the contention that testimony of harassing phone calls to the victim other than those within the June 26 — July 12, 1975 period set forth in the indictment was permitted over defense objection to their relevancy. This time span was critical, according to the defense, because calls before and after those dates were allegedly being attributed to the defendant.

One instance cited by the defense involved the testimony of the Security Manager of the telephone company who mentioned that he spoke to the defendant and his father about “another case”. The reference to “another case” was apparently an unexpected and unsolicited answer without involving defendant and was not pursued further. The other case was therefore not attributed to the defendant.

While the victim was testifying at the trial on August 26, 1975, she was asked by the prosecutor how long she had been receiving anonymous phone calls. She replied without objection by the defense that the calls took place during the last three months. After further questioning she testified the calls began “[ajround the first of June.” Defense counsel then objected to all testimony relating to calls “outside of the dates specified in the Bill of Information”. The objection was overruled. She then testified that the calls continued about a week before she complained to the phone company. Thereafter, beginning on June 29,1975 she maintained a record of the calls, recording as many as 38 in one day. She said, without objection, that she had received five such calls the day before trial.

One call, the witness said, was a sexual threat, although the time when the call was made was not mentioned. The objection to the sexual content of one or two calls on the ground that they were not harassing calls as charged does not alter the fact that those calls were also harassing.

As urged at the trial, the basis for the defense objection was the admission of evidence of calls “outside the dates specified in the Bill of Information”.

Mrs. Cerniglia’s testimony left no room for doubt that these harassing calls were continuous and numerous, day and night, beginning in June and ending the day before the trial. Calls were received as late as three o’clock in the morning making it necessary to disconnect the phone to enable Mrs. Cerniglia to sleep.

The annoying telephone calls began around the first of June and continued to the eve of the trial. It was the calls received prior to the June 26 date set forth in the information which prompted the victim to seek relief from the telephone company. Its response to the complaints of numerous aggravating calls was to request that the victim maintain a “log” of such calls, a request with which Mrs. Cerniglia complied. Repeated calls prior to the June 26 date, as well as calls received after that date, prompted the company to place a line identification “lock in” device on Mrs. Cernig-lia’s telephone to “trace” the calls.

Evidence of calls outside the period charged in the information therefore presents the jury with a complete picture of the events surrounding this offense. Restricting the State to proof of calls in the period charged would hamper the State’s accurate and full presentation of its ease, requiring the State to fragment its proof and present only some of the communications, which were part of a series which prompted this charge. Under the circumstances, evidence of calls made outside the period charged in the information was relevant. La.Rev.Stat. 15:441; State v. Clift, 339 So.2d 755 (La.1976). The initial test of admissibility of any evidence is whether that evidence is relevant to the prosecution. State v. Hatch, 305 So.2d 497 (La.1975). Moreover, in view of the overwhelming evidence of calls within the period specified in the bill of information, reference to calls outside that period was harmless error. La. Code Crim.Pro. art. 921.

IV.

When the State had completed its presentation of evidence, defense counsel moved for a directed verdict based upon the contention that there was insufficient evidence to connect the defendant to the case. At this time a motion for a directed verdict was permissible under Article 778 of the Code of Criminal Procedure. However, the Article has since been amended to permit such motions in bench trials only. See Act 527 of 1975, effective September 12, 1975.

In denying the motion and allowing the case to go to the jury, the trial judge pointed to the fact that some evidence indicated defendant was the offender. The Security Manager of the telephone company testified the victim complained that all of the calls were by the same male voice. After the lock-in device was installed the victim received another call from the man who had bothered her before. The call was shown to originate from phone number 486-3016, the telephone of defendant’s family. When the police arrived at the defendant’s residence the phone there was still locked in to the victim’s phone. The victim also testified that in another such call the caller identified himself as the defendant.

Because there was evidence from which the jury could rationally conclude that defendant was the person who made repeated telephone calls to the victim, reasonably expected to annoy, abuse, torment, harass, embarrass, or offend the victim, the ruling denying a directed verdict was correct. The often stated rule of law is that this Court’s appellate authority is restricted to question of law only, and if there is some evidence, no matter how little, of the essential elements of the crime there is no legal question presented, the sufficiency of the evidence being a question for the trier of fact. State v. Douglas, 278 So.2d 485 (La.1973).

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

DIXON, J., concurs.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

The defendant properly and timely objected to evidence of other criminally abusive telephone calls which occurred on dates other than those specified in the bill of information. The evidence of such calls ranging over a three month period and continuing up to the day before the trial was clearly inadmissible. The objection therefore should have been sustained.

I respectfully dissent.


author: TATE, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana, Appellee, v. Prince NELSON, Appellant.
    No. 60411.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Patrick D. McArdle, 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., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of the theft of a diamond ring worth $850, La.R.S. 14:67, and sentenced to serve three years and four months in parish prison. In appealing, he relies upon one assignment of error. The assignment relates to the introduction over objection of an inculpatory statement allegedly secured as the result of the use of unreasonable force.

Context Facts

At a department store, a clerk showed the defendant two diamond rings. He allegedly failed to return one of them to the clerk.

Two of the store’s security guards took the defendant to an upstairs room. The defendant was unclothed, his hands were handcuffed to his rear, and the guards checked the defendant’s clothing and person. (A guard testified that they handcuffed him because he resisted the strip search.) The searchers were unable to find the ring.

The defendant put his pants back on and his hands were again handcuffed to his rear. One of the guards then thought to look in the defendant’s mouth (he thought that the accused had been mumbling). When the accused opened his mouth at the guard’s request, the guard thought he saw a gold object in the right rear of the gums.

The defendant resisted the guards’ order to spit out what was in his mouth. The defendant started gagging. One of the guards grabbed the defendant’s throat in order to prevent him from swallowing the object he thought he had seen in the accused’s mouth.

At that point, the guard testified, the defendant said: “Turn me loose; the ring is stuck in my ‘goozle pipe;’ so, if you turn me loose, I will be able to spit it up.”

(This statement is the basis of the assignment of error. It was objected to on the ground, inter alia, that it was obtained by the use of unreasonable force.)

The guard then released the defendant, who began spitting up blood. No object came out of his mouth, however. Police officers arrived shortly thereafter, placed the defendant under arrest, read him his Miranda rights, and took him to jail. Although bowel movements were watched closely for three days, the ring was never found by the state. Also an x-ray of the defendant at the time showed no foreign object in his body.

At the time of the search, the security guards held no commissions from the state or from any governmental body. They were merely personnel employed by the department store to act as security guards.

The circumstantial evidence as a whole would reasonably permit the trial jury to conclude that the accused was guilty of the offense. Nevertheless, without doubt, the inculpatory statement indicating that he had the ring in his mouth was, under the circumstances, substantial evidence contributing to the jury verdict of guilt. If this evidence had been excluded, no testimony directly proves the accused’s possession of the missing ring; he could have strongly argued that he was detained and searched solely because of a completely unfounded suspicion by the department store clerk, who had herself mislaid the ring.

The Legal Issue

The essential legal issue is whether the statement was the direct product either of an unlawful search or of the use of unreasonable force.

If the choking and other physical measures used to restrain and search the accused constitute the use of unreasonable force, a statement thereby obtained may be inadmissible because involuntary, whether the primary purpose of the choking and other abuse was to obtain disgorgement of the stolen object or instead was to obtain an admission by the accused that he possessed it. The state cannot use an involuntary admission of culpability by the defendant, however and by whomever obtained, as evidence of the accused’s guilt. State v. Glover, 343 So.2d 118 (La.1977). See also La. R.S. 15:451.

We prefer to rest our ruling, however, on the unreasonableness of the (illegal) search by private persons, in the course of which the statement was improperly obtained as a direct consequence of unreasonable force exercised under the circumstances.

The store’s security guards, who were not commissioned as police officers, detained and questioned the accused under purported authority of La.C.Cr.P. art. 215, the “shoplifters” statute. This permits “a specifically authorized employee of a merchant” to “use reasonable force to detain a person for questioning on the merchant’s premises,” when there is reasonable cause (as there was here) to believe that the detained person has committed a theft of the merchant’s goods held for sale.

However, even though there may be probable cause for detention and inquiry, the search itself may be unreasonable in method or extent so as to go beyond the statutory authorization. Brasher v. Gibson’s Products Company, Inc., 306 So.2d 842 (La.App. 2d Cir. 1975); Annotation, False IMprisonment — Shoplifters, 47 ALR3d 998, Sections 9, 10 (1973).

Even had the store guards been commissioned as peace officers, their choking of the accused would present an issue that the search was unreasonable because unreasonable force was used to obtain evidence. State v. Tapp, 353 So.2d 265 (La.1977). The present private employees, however, were exercising search powers only under a statutory authorization limited to the use of “reasonable ” force “to detain a person for questioning." So considered, their search was certainly unreasonable in method and extent: They stripped the suspect of his clothes, handcuffed his hands in back of him, and choked him to force him to disgorge what (they thought) was in his mouth.

The Louisiana Constitution of 1974 provides that each person shall be secured in his person “against unreasonable searches . or invasions of privacy.” Article 1, Section 5. This constitutional provision further states: “Any person adversely affected” by an unreasonable search shall have standing to raise its illegality. The introductory section of Article I, the Declaration of Rights, declares that the rights enumerated by it (which include the prohibition against unreasonable searches) “are inalienable by the state and shall be preserved inviolate by the state.” Article 1, Section 1.

Here, the accused was subjected to an unreasonable search under the color of authority claimed by virtue of a statute that permitted private persons to use reasonable force to detain him. By virtue of this unreasonable search, an inculpatory statement was allegedly choked out of him. He was thereby adversely affected by the unreasonable search, no less than if these private employees had used unreasonable force in their exercise of state-authorized detaining power, in order to violate his person so as to obtain physical evidence illegally.

Accordingly, because the inculpatory statement was obtained as the direct result of the use of unreasonable force in an unreasonable search, we find that the statement was improperly admitted into evidence over his objection. On the assignment of error presenting this issue, we must reverse the conviction and sentence. We remand for a new trial, in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., dissents with written reasons.

SANDERS, Chief Justice

(dissenting).

I have heretofore expressed the view that the rule excluding evidence from a criminal trial because of an illegal search does not apply to evidence secured by private persons. See, e. g., McGuire v. United States, 273 U.S. 95, 47 S.Ct. 259, 71 L.Ed. 556 (1927); State v. Bryant, La., 325 So.2d 255 (1975); 68 Am.Jur.2d, Searches and Seizures, § 13, p. 670. See also my concurring opinion in State v. Hutchinson, La., 349 So.2d 1252 (1977).

Assuming, however, that a different rule applies here because we are dealing with an inculpatory statement, I am still of the view that the inculpatory statement was admissible.

It is well established that law enforcement officers may apply sufficient pressure to a person’s throat to prevent that person from swallowing narcotics to frustrate law enforcement. See State v. Wood, 262 La. 259, 263 So.2d 28 (1972); State v. Young, 15 Wash.App. 581, 550 P.2d 689 (1976); United States v. Harrison, 139 U.S.App.D.C. 266, 432 F.2d 1328 (1970); Espinoza v. United States, 278 F.2d 802 (5th Cir. 1960). The same rule, I think, should apply to prevent a person from swallowing a valuable diamond ring.

For the reasons assigned, I respectfully dissent.

      . Historically, the requirement of voluntariness was based on the feared unreliability of an involuntary statement. McCormick on Evidence, Section 147 (2d ed. 1972); Pugh, Louisiana Evidence Law 284-85 (1974). Here, for instance, the choked individual may have blurted out a false statement concerning the ring in order to avoid asphyxiation.

      . La.C.Cr.P. art. 215 specifically provides that “The detention [of suspected shoplifters authorized by the statute] shall not constitute an arrest.” Subsection A. If it were a lawful arrest, the arresting officer might not only use reasonable force to detain the suspect, La.C. Cr.P. art. 220, but also to seize weapons and incriminating articles incident to the arrest, La. C.Cr.P. art. 225.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Hugo JOYA.
    No. 60456.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

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

By bill of information the District Attorney for the Parish of Orleans charged in one count that Hugo Joya forged a check drawn on the Whitney National Bank, dated April 16, 1976, in the sum of $94.25, payable to Hugo Espermas and signed “Daniel F. Young.” A second count charged that on the same day Hugo Joya issued and transferred the check in question, knowing it to be a forged writing, with intent to defraud. La.Rev.Stat. 14:72.

Joya was tried by jury, found guilty of attempting to commit forgery on the first count and guilty as charged on the second count. He was sentenced to serve five years in the custody of the Department of Corrections on the first count, and ten years in the custody of the Department of Corrections on the second count. Sentences on both counts were suspended, and defendant was placed on active supervised probation on each count for five years. As a special condition of probation, defendant was ordered to serve one year in the parish prison on each count with credit for time served and with no “good time” credit. The sentences, probationary terms, and special conditions were ordered to run concurrently.

On this appeal two assignments of error are urged and consolidated in brief for argument.

The State’s witness Sidney Haislip testified that he was assistant to the manager of a guest house where defendant Joya was staying. On April 16, 1976 Joya gave Hais-lip a check for $94.25 in payment for his room rent of $45. The check was signed “Daniel F. Young” on a printed form of the Daniel F. Young Company, Inc., made payable to the order of Hugo Espermas, endorsed by him, and drawn on the Whitney National Bank. The check was then endorsed by the manager of the guest house for deposit to her account in the Bank of New Orleans. When questioned by Haislip concerning the name of the payee, Joya explained that he worked under that name.

According to Haislip’s testimony Joya accompanied him to the Medical Plaza Branch of the Bank of New Orleans where the check was deposited. Haislip then gave Joya $50. Joya moved out of the guest house shortly thereafter and left no forwarding address.

Several days later Haislip received a certificate by mail from the Bank of New Orleans advising that the check was issued with an unauthorized signature. The matter was reported to the police and Joya was arrested about two months later on June 25, 1976.

During Haislip’s direct testimony as a State witness he was asked why he gave Joya $50 when the check was deposited. Defense counsel objected to the relevancy of the question and the testimony sought to be elicited arguing that the matter was “far afield”. The objection was overruled. The witness replied that it was the difference between the face amount of the check, $94.25, and the amount Joya owed for room rent—$45.

The testimony was relevant to the facts surrounding the issuance of the check, an essential element of the crime charged. La. Rev.Stat. 14:72.

Haislip was then asked to identify and interpret the certificate from the Bank of New Orleans which was returned to him with the check. Over defense objection Haislip responded, “Yes, sir, That is what we received when the bank sent it back. It’s unauthorized signature, I suppose what that means. I’m not qualified.” The objection did not state the grounds therefor, and the judge gave no reasons for his ruling.

The defense contends that permitting the contents of the certificate to be introduced as evidence was highly prejudicial to the defendant, for it created an advantage to the State by providing hearsay proof that the signature was unauthorized. No one testified to the authenticity of. the certificate from the Bank of New Orleans.

At the outset, in presenting its case, the State called Guadalupe Yoder to the stand. She had been employed by the Daniel F. Young Company, Inc., for sixteen years and was then assistant manager of the firm. She testified that Daniel F. Young had been dead for seventy-five years, establishing by this unrefuted testimony that the signature of Daniel F. Young as maker of the check was obviously a forgery. Only she, Wester and Baker, all employees of the company, were authorized to sign checks on its behalf. She testified that no one by the name of Hugo Joya or Hugo Espermas ever worked there. Although the imprint on the check indicated it was a check of the company, it was one of a numbered series which had been ordered but never delivered to the company.

Joya’s defense was that he met a person known as “Dusty Sparks” in a barroom. In conversation there Joya agreed to repair Sparks’ automobile. After he finished the job Sparks gave him the $94.25 check in payment. Joya was unable to furnish information at the trial of Sparks’ whereabouts. Joya’s basic contention and defense, therefore, is not that the check was not a forgery but that if it was, “Dusty Sparks” was responsible.

In connection with the defense contention that Haislip should not have been permitted to read from the certificate informing him that the check contained an unauthorized signature, these rules of law are applicable: Testimony concerning the contents of written communications received by a witness are hearsay unless the author of the document is present and subject to cross-examination. La.Rev.Stat. 15:434, 463.

The hearsay rule generally excludes out-of-court statements, whether oral or written, offered to prove the truth of the matter contained in them. The reason underlying the rule is that such statements are made without an oath and their truth cannot be tested by cross-examination in the presence of the trier of fact. State v. Launey, 335 So.2d 435 (La.1976); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971).

While our conclusion is that the testimony of Haislip concerning the contents of the bank’s certificate is hearsay, in the absence of a stated ground for the objection or ruling, La.Code Crim.Pro. art. 841, it may be said that although the testimony concerning the content of the certificate may not be admissible to prove the truth of its content, the fact of receipt of the certificate and its content is admissible to explain bringing this matter to the attention of the police. This latter theory would be an exception to the hearsay rule, for under that theory the offering would be to prove receipt of the information and not the truth of the statement. State v. Monk, 315 So.2d 727 (La.1975); State v. Green, 282 So.2d 461 (La.1973).

The Court is also of the view that reference to the content of the certificate was harmless and non-prejudicial in view of Guadalupe Yoder’s unrefuted testimony that the signature was unauthorized, and Joya’s testimony that the check was given to him by Dusty Sparks. From Joya’s testimony it is evident that his defense was that he was unaware of the forgery, and the authenticity of the maker’s signature on the check was not therefore material to his defense. Hence the trial judge’s ruling did not result in a miscarriage of justice, nor was the ruling prejudicial to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. La.Code Crim.Pro. art. 921.

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

DENNIS, J., concurs in the decree.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Arnel NELSON, Appellant.
    No. 60457.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
    Clyde D. Merritt, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
   TATE, Justice.

The defendant was convicted of second degree murder, La.R.S. 14:30.1 (1973), and sentenced to life imprisonment. Upon his appeal, he designates fifteen assignments of error.

The homicide occurred when the accused stabbed the victim with a pen-knife. Both men worked for the parkway commission. Shortly after the lunch-break, a quarrel arose between them as to which should use the power saw. Both men had been drinking alcoholic beverages purchased at lunchtime.

We find no reversible merit to the assignments of error:

Assignment 1: The trial occurred in May, 1975. The petit jury was chosen in open court from prospective jurors, who were called for voir dire in an order determined by lot; however, the drawing by lot itself was not accomplished in open court, as is now required by State v. Hoffman, 345 So.2d 1 (La.1977). Nevertheless, that ruling was specifically made so as to affect, prospectively only, jury panels selected after its date of finality in May, 1977. The present 1975 jury selection having occurred prior to the effective date of the ruling, no reversible error is presented by this assignment.

Assignment 2: The trial court did not err in refusing, over state objection, to require a medical witness (a pathologist) to answer questions pertaining to a medical field (psychiatry) outside the witness’s area of expertise and speciality, which the witness himself had previously twice stated he was not competent to answer.

Assignments 4 and 8: The trial court did not err in overruling defense objections to questions eliciting relevant and admissible testimony.

Assignments 5 and 9: The defense objected to testimony of a non-violent slight disagreement between the accused and a third person. This had occurred on the morning of the day of the homicide. While we are inclined to agree with the defendant that this testimony was irrelevant and should have been excluded, we are not persuaded that the erroneous admission of this evidence caused appreciable prejudice so as to contribute to the accused’s conviction. See La.C.Cr.P. art. 921.

Assignments 6 and 7: We find no abuse of discretion in the trial court’s refusal to declare a mistrial upon the discovery that state witnesses, in violation of an alleged sequestration order, had asked previous witnesses what questions were asked. The record does not reflect that the witnesses had been instructed not to discuss the case, and the trial court’s interrogation of them outside the presence of the jury furnished a reasonable basis for its conclusion that their testimony was not affected by the discussion.

Assignments 11 and 12: We are unable to say that the trial court erred in holding the prosecutor’s rebuttal to be responsive to and not beyond the scope of the defendant’s closing argument, although the issue is close. In any event, under the prevailing jurisprudence, no reversible error resulted from the particular prosecutorial excess (if any) shown.

Assignment 12 (another issue): The defendant sought a new trial based upon the alleged overreaching by the prosecutor’s rebuttal argument. We find no abuse of discretion by the trial court in denying this motion as well as a defense subpoena of records (which allegedly would show that a defense exhibit referred to by the prosecutor was not entirely accurate) sought in connection therewith.

Assignment 15: We find no error in the trial court’s denial of three special charges requested by the defendant, as either covered by its general charge or else as not wholly correct and pertinent. See La.C. Cr.P. art. 807.

Assignments 3, 13, and 14, which do not in substance possess merit, were not briefed or argued and are, accordingly, deemed abandoned.

Decree

Finding no reversible error, we affirm the conviction and sentence.

AFFIRMED.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Donald Ray GAINES.
    No. 60480.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Lawrence R. Anderson, Jr., Anderson & Roberts, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Donald Ray Gaines was indicted by the grand jury for the Parish of East Baton Rouge for the first degree murder of Rita Decuir in violation of La.R.S. 14:30. After trial by jury, he was found guilty as charged and was sentenced to death. On appeal, this court reversed defendant’s conviction and sentence and remanded the case to the trial court for a new trial. On remand of the case to the trial court, the state was permitted to amend the bill of indictment to charge defendant with second degree murder in violation of La.R.S. 14:30.1. After trial by jury, defendant was found guilty as charged and was sentenced to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for twenty years. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

Defendant contends the trial judge erred in denying his motion to suppress his confession and in permitting testimony concerning it at trial. He argues that, because of his youth (age 17), his limited intellectual ability, the prolonged interrogation and the use of threats and coercion, his confession was not freely and voluntarily made (Assignments of Error Nos. 1 and 2). Defendant also contends the trial judge erred in allowing in evidence a pistol and various pieces of clothing which were procured as a result of his allegedly involuntary confession (Assignment of Error No. 3).

During trial, defendant made an oral motion to suppress his inculpatory statement. Since the trial judge in this case was the same judge who ruled on the motion to suppress and presided over the earlier trial, it was stipulated by and between the prosecutor and defense counsel that the evidence adduced at the previous suppression hearing as well as the evidence at the earlier trial relative to the free and voluntary nature of the confession and the reports of Drs. F. A. Silva and Hypolite T. Landry, who had examined defendant prior to his first trial to determine his mental capacity to proceed, could be considered by the trial judge in determining the admissibility of the statement in the present prosecution.

At the earlier suppression hearing, Warren J. Hebert, a member of the district attorney’s office, testified that he was present at the time of defendant’s arrest for a different offense at his home. The arrest occurred at about 4:00 a.m. He accompanied defendant to the police station in a police vehicle and advised him of his Miranda rights en route to the station. Upon arrival at the station, defendant was questioned by Detective Jerry Moran and Sgt. H. P. Lambert with respect to his participation in another crime. At approximately 6:30 a.m., Hebert interrogated defendant concerning the instant crime; defendant stated that he knew one of the individuals involved (Perkins) but denied any personal involvement in the crime. Hebert testified that later that morning (9:00 a.m.), he returned to the station where he remained until about 12:30 p.m. He observed defendant eating a meal around lunch time. Handcuffs had been removed from defendant upon his arrival at the station. Defendant was still in the clothes he was wearing at the time of his arrest. At approximately 6:30 p.m., after again informing defendant of his Miranda rights, Hebert stated that he questioned defendant for a second time; at this time defendant confessed his participation with Steve Perkins in the instant crime. The interrogation session lasted about thirty minutes. Hebert testified that he neither threatened defendant or promised him anything to induce him to confess. Specifically, he denied observing any physical abuse of defendant by police officers. Moreover, he denied observing Ossie Brown (district attorney) interview defendant. As a result of information disclosed by defendant, Hebert procured four search warrants; execution of these warrants resulted in the recovery of a pistol used in the commission of the crime and the clothing worn by the perpetrators.

Defendant also testified at the previous suppression hearing. He denied that Hebert was present either at the time of his arrest at his home or en route to the police station. He stated that he first saw Hebert upon his arrival at the police station. Defendant related that between six and seven in the morning, Hebert and an officer brought him to Ossie Brown for questioning; Perkins, defendant’s co-participant in the crime, was present at this interview. He testified that upon his refusal to talk, Brown ordered him placed in “isolation” where he remained until he was moved to the parish prison which, according to his subsequent testimony, occurred around noon the following day. Defendant further testified that at approximately noon on the day of his arrest, he was collared and shoved about by two police officers; however, he denied that he was beaten. He claimed that he immediately reported this incident to Ossie Brown who took no corrective action. Defendant also asserted that he was deprived of food and water during this period. He related that upon his arrival at parish prison he called his mother, Marjorie Gaines, and told her that he was being shoved around by the police in an attempt to induce him to confess to the crime. He admitted that he was advised of his rights when arrested at home but denied that he was further advised of his rights at any subsequent time. Defendant also denied that he ever spoke to Hebert or even gave a statement to anyone relating to the crime in question.

Defendant also called as witnesses David Miller, Marjorie Gaines and Steve Perkins. David Miller, a member of the district attorney’s office, testified that he questioned defendant on the morning of his arrest; defendant did not indicate his involvement in the crime. Marjorie Gaines testified that defendant called her and complained of being beaten. Steve Perkins stated that he was present when Brown had defendant placed in the “hole” upon his refusal to confess.

At the prior trial, Detective Jerry Moran testified that he was present when defendant confessed his participation in the instant crime after having been fully advised of his rights. Warren Hebert was present at the time. He further stated that defendant’s confession was given at about 6:30 p.m. on the night of his arrest and the session lasted about thirty minutes.

According to the reports of Drs. Silva and Landry who examined defendant in connection with his prior trial, defendant possessed limited intellectual ability and had a history of maladjustment; however, he was found capable of understanding the charge against him and assisting in his own defense.

After reviewing the evidence introduced by stipulation in connection with defendant’s motion to suppress, the trial judge denied the motion and permitted introduction of the inculpatory statement in evidence. The pistol and clothing seized pursuant to the search warrants issued based on information disclosed by defendant’s statement were likewise admitted in evidence.

Before a confession may be introduced in 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. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was 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. La.R.S. 15:453. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the volun-tariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977); State v. Ross, 343 So.2d 722 (La.1977).

At the outset, it should be observed that defendant denied ever giving a statement to Warren Hebert. He even denied making a statement to anyone relating to the crime. This testimony was in direct conflict with that of Hebert and Detective Moran. Defendant also testified that Hebert and an officer brought him to Ossie Brown who, upon his refusal to talk, ordered him placed in isolation. However, Hebert testified that he had no knowledge of an interview between defendant and Brown. Moreover, defendant’s assertion that he remained in solitary confinement from the morning of his arrest until noon of the following day when he was transported to the parish prison was contradicted by Hebert, Miller and Moran who testified that they observed and questioned defendant on the morning and evening of his arrest.

Likewise, defendant’s claim that he was collared and shoved about by two unidentified police officers at approximately noon on the day of his arrest was uncorroborated and contradicted by the evidence. Defendant admitted that he was not beaten by the officers. Hebert specifically denied that defendant was collared, slapped or shoved by police officers. He further testified that he observed defendant eating his lunch at the time defendant claimed to have been shoved about by the officers. Moreover, although defendant testified that he immediately reported the incident to Ossie Brown, he did not attempt to corroborate his assertion by calling Brown to testify to this fact on his behalf.

As set forth above, defendant’s claim of threats and coercion was directly contradicted by the evidence. Moreover, there was no evidence of prolonged interrogation; rather, the evidence was to the contrary. Finally, despite defendant’s youth and limited intellectual ability, the record clearly reflects that he was capable of understanding his Miranda rights, knowingly and intelligently waiving these rights, and making a free and voluntary confession.

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 after defendant had been advised of his Miranda rights. Accordingly, the trial judge did not err in denying defendant’s motion to suppress his confession and in permitting it and the evidence procured as a result thereof to be introduced into evidence.

Assignments of Error Nos. 1, 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in refusing to give a requested special charge to the jury. The requested special charge would have instructed the jury in detail on the weight to be given by it to an “admission” and “confession.”

La.Code Crim.P. art. 807 provides that the trial judge need not give a requested special charge if it is included in the general charge.

The trial judge’s general charge included an instruction that, in any criminal case, where the state introduces into evidence what purports to be an admission, confession or statement made by the defendant, the jury should examine all of the circumstances surrounding the giving of the statement in order to properly determine the weight to be given to it.

We consider that the requested special charge was adequately covered by the general charge given by the court. Accordingly, the trial judge did not err in refusing to give the requested special charge.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge’s general charge to the jury failed to properly include in an organized manner instructions on the presumption of innocence, burden of proof and reasonable doubt.

La.Code Crim.P. art. 804 provides:

A. In all cases the court shall charge the jury that:
(1) A person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt;
(2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the case; and
(3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.
The court may, but is not required to, define ‘the presumption of innocence’ or ‘reasonable doubt’ or give any other or further charge upon the same than that contained in this article.
B. When there are several grades of an offense contained in a single count, the court shall charge the jury as to each grade of which the defendant could be found guilty. The court shall in that case also charge the jury that if it has a reasonable doubt as to any or all grades of the offense charged it shall find the defendant not guilty of that grade, or all grades of the offense, as the case may be.

A review of the general charge given by the trial judge to the jury in this case demonstrates that the general charge strictly complied with the requirements of the above provision and was presented in an organized manner. Moreover, although the trial judge is not required by the statute to define “reasonable doubt” in his charge, the trial judge did in fact include such an instruction in his general charge to the jury. Accordingly, we find no substance in defendant’s complaint.

DECREE

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

      . 340 So.2d 1294 (La.1976).