author: MARCUS, Justice. CALOGERO, Justice, DIXON, Justice

text:
    STATE of Louisiana v. Curtis Lee STEWART.
    No. 60935.
    Supreme Court of Louisiana.
    April 10, 1978.

      George M. Strickler, Jr., New Orleans, Jerry A. Kirby, Kirby & Anzalone, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Blaine Adkins, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Curtis Lee Stewart was charged by bill of information with the crime of possession with intent to distribute a controlled dangerous substance, to-wit: marijuana, in violation of La.R.S. 40:966. After trial by jury, defendant was found guilty as charged and was sentenced to serve three years at hard labor and to pay a fine of $1,500 and court costs, in default of which he was to serve one year in jail. Payment of the fine was suspended but not that of the court costs. Defendant was given credit toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 3

Defendant contends the trial judge erred in ruling at the preliminary examination that there was probable cause to charge defendant with the instant offense.

It is well settled that the question of probable cause and errors alleged to have occurred at the preliminary hearing are moot once a defendant has been tried and convicted by a jury. State v. Qualls, 353 So.2d 978 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Sneed, 328 So.2d 126 (La.1976); State v. Luckett, on rehearing, 327 So.2d 365 (La.1976). Accordingly, these assignments of error present nothing for our review.

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

ASSIGNMENTS OF ERROR NOS. 2 AND 7

Defendant contends the trial judge erred in denying his motion to suppress physical evidence and in permitting its introduction at trial.

The pertinent facts are as follows. During the previous evening and early morning hours of November 21, 1976, Officer Isaac Robinson, Jr., of the Monroe City Police Department had been on the lookout for Charles Edward Jackson who had escaped from the parish jail. At about 7:30 a. m., while driving his personal vehicle home after completion of his shift, Officer Robinson observed a 1965 red Chevrolet traveling ahead of him in the same direction. As Robinson passed the vehicle, he noticed that the driver of the vehicle was defendant, whose street name was “Sleepy.” Two passengers, whose faces the officer was unable to see, occupied the back seat of the vehicle. Upon seeing the uniformed officer, defendant slowed down and changed lanes. Suspecting that the escaped prisoner might have been a passenger in the vehicle, Officer Robinson radioed the Ouachita Parish Sheriff’s Office for assistance, which in turn notified Deputy Sheriff Lester A. Edwards, an officer on patrol in a marked police car in the vicinity, that an escaped prisoner was believed to be a passenger in the 1965 red Chevrolet. Immediately after receiving the radio dispatch, Deputy Edwards spotted defendant’s vehicle, which was traveling at a normal rate of speed, being followed by Officer Robinson in his unmarked car. The deputy followed behind the vehicles. Shortly thereafter, defendant executed a series of turns down various streets in an apparent attempt to evade the officers. As Deputy Edwards passed Officer Robinson’s vehicle, defendant accelerated to a high rate of speed, driving recklessly and failing to stop at any of the stop signs. Deputy Edwards thereupon activated the flashing red light on his vehicle and pursued defendant’s car. After tracking defendant’s vehicle by means of the tire marks left by the speeding car, the deputy turned onto a dead-end street where he discovered defendant standing near a trash barrel. As the deputy alighted from his vehicle, defendant fled behind the residences located on the street. Edwards then proceeded to defendant’s parked vehicle at which time a resident in the area, Freddie Coleman, informed the deputy that he had observed defendant exit his vehicle, open the trunk, remove a large brown bag bearing red lettering which defendant threw into the trash barrel, and flee. After a search of the area, defendant was apprehended by Deputy Edwards behind one of the residences on the street, placed under arrest for the reckless operation of a vehicle and for resisting an officer, and advised of his rights. Defendant related to the police that he had dropped off his two passengers. Meanwhile, Officer Robinson arrived at the scene and observed that the door of the driver’s side and the trunk of defendant’s vehicle were partially opened. Fearing that the suspect might have concealed himself in the trunk, the officer drew his revolver and looked inside; he did not discover anyone. He did, however, detect a strong odor of marijuana coming from inside the trunk. Thereafter, upon determining in which direction defendant had fled when confronted by Deputy Edwards, Robinson discovered and seized a box and a large brown bag bearing red lettering, both of which contained marijuana weighing approximately fourteen pounds, from the trash barrel located near where defendant was confronted by the deputy. Based upon the foregoing facts, a warrant authorizing a search of defendant’s vehicle was issued which, when executed by the police, resulted in the recovery of a marijuana cigarette, seeds and gleanings from the trunk and interior of defendant’s vehicle.

La.Code Crim.P. art. 213 provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence, and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;

In the instant case, based upon the belief that defendant’s vehicle might contain a recently escaped prisoner from the parish jail, coupled with the suspicious manner in which the vehicle was operated by defendant upon his observing the police officers, we consider that the police officers had at least the right to follow and to keep defendant’s vehicle under surveillance. At first, defendant’s vehicle proceeded at a normal rate of speed. Shortly thereafter, defendant began to accelerate to a high rate of speed, driving recklessly and failing to stop at any of the stop signs. Deputy Edwards specifically stated that he did not activate the red light on his vehicle until “after” defendant “accelerated and started driving at a high rate of speed.” After tracking defendant’s vehicle to a dead-end street, defendant attempted to resist arrest by flight on foot. Finally, after defendant was apprehended, he was arrested for reckless operation of a vehicle and resisting an officer. Clearly, these offenses were committed in the presence of the arresting officer. No warrant for defendant’s arrest was required. The evidence abandoned by defendant during his flight from a lawful arrest was legally seized and was admissible in evidence. Since the arrest of defendant and seizure of the evidence were lawful, the seizure of the contraband from defendant s vehicle pursuant to a search warrant issued on the basis of the foregoing arrest and seizure was also lawful. Accordingly, the trial judge did not err in overruling defendant’s motion to suppress and in admitting the evidence at trial.

Assignments of Error Nos. 2 and 7 are without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in permitting a state witness, Sergeant Neil Wellbrink, to testify to the number of cigarettes that could be made from one pound of marijuana.

After testifying to his training and experience in drug identification and investigation, particularly in connection with marijuana, Sergeant Wellbrink testified that, based upon his experience in weighing marijuana, a single marijuana cigarette usually weighs between one-half (Vfe) and seven-tenths (7/io) of a gram. Over defense objection, the witness was then permitted to testify that about six hundred forty-seven (647) to nine hundred six (906) cigarettes could be made from one pound of marijuana.

On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony. La.R.S. 15:464. Every expert witness must state the facts upon which his opinion is based. La.R.S. 15:465.

In the instant case, our review of the record convinces us that Sergeant Well-brink possessed sufficient special training and experience in the field of marijuana to express an opinion in that field. He also stated the facts upon which his opinion was based. Hence, the trial judge properly permitted him to express an opinion as to the number of cigarettes that could be produced from one pound of marijuana. Even assuming arguendo that Wellbrink was not properly qualified to express his opinion on this subject, defendant suffered no prejudice from his testimony since, later at trial, Linda Armstrong, who was duly qualified as an expert criminalist, testified without objection that approximately nine hundred (900) cigarettes could be made from one pound of marijuana.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in permitting state witness Officer Isaac Robinson, Jr., to recount in narrative form the actions of defendant in the operation of his vehicle while he was being observed by the officer. We have held that the trial judge has great discretion in this regard. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Peters, 302 So.2d 888 (La.1974). Unless an abuse of discretion is shown, this court will not reverse a conviction based upon the action of the trial judge in controlling the examination of witnesses. We find no such abuse here.

Defendant further argues that the trial judge erred in permitting the state to lead the witness. No objection on this ground appears in the record. In any event, we do not consider that the state’s questioning of the witness was leading.

Assignment of Error No. 5 lacks substance.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in permitting the state, over defense objection, to question Deputy Sheriff Lester A. Edwards, as to the speed of defendant’s vehicle as it was being followed by the deputy. He argues that the question was improper in that it required the witness to express a conclusion. After defendant’s objection was overruled by the trial judge, the witness responded that, as he began to follow defendant’s vehicle, it was traveling at a lawful rate of speed.

While it is well settled that a lay witness may not give opinion testimony, it is equally well settled that a nonexpert witness may draw natural inferences from facts personally observed by him. State v. Clark, 340 So.2d 1302 (La.1976); State v. Neal, 321 So.2d 497 (La.1975). In the instant case, the witness, a deputy with fifteen months experience, was traveling behind defendant’s vehicle. Based on his personal observations of the vehicle, the witness could naturally infer whether defendant’s vehicle was proceeding at a lawful rate of speed. The trial judge correctly permitted him to so testify.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in denying his motion for a judgment of acquittal made at the close of the state’s case on the ground that the state introduced no evidence that the offense charged was committed in the Parish of Ouachita.

La.Code Crim.P. art. 778 was amended by Act No. 527, § 1 of 1975, effective September 12, 1975, to eliminate the authority of the trial judge to direct a verdict of not guilty in a jury trial. The offense for which defendant was being prosecuted was alleged to have occurred on November 21, 1976. The matter was tried by a jury on May 9-10, 1977. Accordingly, the trial judge had no authority to grant defendant’s motion for a judgment of acquittal.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in refusing to give three requested special charges to the jury. The requested special charges would have instructed the jury that the state was required to prove beyond a reasonable doubt defendant’s responsibility for the crime, which could be proven by identification testimony, and, additionally, that the circumstances of a witness’ identification of defendant as the perpetrator of the crime, including the witness’ opportunity to observe him during the commission of the offense, could be considered in determining the reliability of the witness’ identification.

Although defendant in his brief submitted this assignment of error to the court for its consideration without briefing it, we have reviewed his contention and find it to be without merit. In his general charge, the trial judge instructed the jury that the burden was on the state to prove every element of the crime charged beyond a reasonable doubt. Identification of the accused as the perpetrator of the offense was one of the elements of proof required. Furthermore, the trial judge instructed the jury that it had to determine the weight and credibility of a witness’ testimony and, in so deciding, it should consider the opportunity which the witness had to observe the perpetrator of the crime and the circumstances surrounding his or her testimony. Hence, defendant’s requested special charges were included in the general charge given by the court. La.Code Crim.P. art. 807. Moreover, to have given the requested special charges on the identification issue would have been improper in that it would have pinpointed this issue out of proportion with the other issues in the case. State v. Rose, 271 So.2d 863 (La.1973); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971). We, therefore, conclude that the trial judge properly refused to give defendant’s requested special charges.

Assignment of Error No. 9 has no substance.

DECREE

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

DIXON, J., concurs with reasons.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I believe that the trial judge erred in denying defendant’s motions to suppress and for that reason I would find merit in defendant’s assignments of error numbers 2 and 7.

Officer Robinson testified that when he saw defendant’s vehicle he (the officer) was driving in the left-hand lane and defendant was driving a red Chevrolet in the right-hand lane. They looked at each other, and defendant slowed down and moved into the left-hand lane. The officer insisted that defendant was not weaving nor speeding but that he believed that defendant’s action in changing lanes was “evasive” and he decided at that time to follow his car.

The officer saw that two persons were in defendant’s vehicle but could not see who they were. Based on no factual basis at all, the idea popped into the officer’s mind that one of these persons might be the escaped felon he had been searching for earlier in the day. Nothing in the record indicates that there was any known connection between the defendant and the escapee. The officer himself admitted that he did not see the escapee in the vehicle and no car registration check tied the escaped prisoner to the red Chevrolet.

A law enforcement officer has the right to make an investigatory stop of a person “whom he reasonably suspects is committing, has committed, or is about to commit a felony or a misdemeanor . . C.Cr.P. art. 215.1 (emphasis added). Reasonable cause to stop a person must be determined by whether the officers had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Smith, 347 So.2d 1127 (La.1977); State v. Perigue, 340 So.2d 1369 (La.1976); State v. Cook, 332 So.2d 760 (La.1976). Facts do not furnish probable cause if they are at least as consistent with innocent activity as with guilt, for in such situations they do not connect the individual with criminal activity. State v. Herbert, 351 So.2d 434 (La.1977); State v. Kinnemann, 337 So.2d 441 (La.1976).

Here, defendant’s actions in changing lanes was as consistent with innocence as with guilt, and there was no fact linking the escaped prisoner to defendant’s car, except a baseless idea which “flashed” into the officer’s head. In short, there was no reasonable basis on which the officer stopped defendant Stewart’s car, making his arrest and the seizure which followed illegal. State v. Smith, supra; State v. Perigue, supra; State v. Cook, supra. I believe that the majority errs in holding otherwise.

DIXON, Justice

(concurring).

I respectfully concur.

If, as argued to us, Officer Robinson had a hunch that an escaped prisoner was possibly in the back seat of defendant’s automobile, and undertook, in cooperation with the sheriff’s department, to stop the car to determine whether the escaped prisoner was in it, causing the chase which followed, I would be of the opinion that the stop clearly violated the constitutional prohibition against unreasonable searches and seizures.

On the other hand, if the facts were as related in the majority opinion, I would agree with the conclusion reached by the majority. Clearly, the police would have had the right to follow defendant’s vehicle, and arrest him if he was guilty of speeding, running stop signs, or reckless driving.

However, my interpretation of the record differs from that of the majority. Nevertheless, the evidence as I read it does disclose that the deputies in a marked police car had probable cause to stop defendant’s vehicle.

Robinson did not communicate directly with the sheriff’s deputies who made the stop. He called the sheriff’s office on his CB radio. Although at trial Robinson denied that he told the sheriff’s department that the escaped prisoner was in the automobile (he said he requested that the sheriff stop defendant to see if the escapee was in the car), the deputies who chased the defendant were informed on their radio that an off-duty police officer (Robinson) had seen three people in the vehicle and one of them was “thought to be” the escapee.

In the affidavit made by the sheriff’s deputies to obtain the search warrant to make a further search after the defendant had been apprehended, Deputy Edwards and Deputy Cannon swore that Robinson notified the sheriffs department “that he had Charles Edward Jackson (the escapee) in sight” in the automobile whose make, year, color and license number were then listed.

This testimony makes it clear that the deputy who chased the defendant had information which he should have been able to believe that a Monroe policeman, whose observation should have been reliable, had seen an escaped prisoner in the defendant’s automobile.

Therefore, even though the sheriff’s deputies intended to stop the defendant’s automobile as soon as possible, and before the defendant’s automobile began to speed, and before it ran a stop sign, or drove otherwise recklessly, they had probable cause to stop the car to see if it contained the escaped prisoner.

      . In determining whether the ruling on defendant’s motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Shivers, 346 So.2d 657 (La.1977); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967).


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Reginald ALEXANDER.
    Nos. 60980, 60981.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.
    William D. O’Regan, III, Laplace, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Roland J. St. Martin, Richard L. Edrington, Asst. Dist. Attys., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On Christmas morning, 1971, at about 1:00 o’clock, Reginald Alexander entered the house occupied by his estranged wife and, for no apparent reason, fired several shots from a handgun, injuring his wife, mother-in-law and sister-in-law. He was jailed the next day, but was not billed (for attempted murder) until August 1, 1972. The three charges were consolidated for trial, and on October 28, 1976 he was acquitted on one charge and convicted of attempted manslaughter on the other two, receiving concurrent sentences of five years.

One assignment of error is urged before us, complaining of the denial of a motion to quash baséd on the denial of a speedy trial and the expiration of the time limitation of two years for the commencement of trial. C.Cr.P. 578.

Since the two year period for the commencement of trial has obviously been exceeded in the span between August 1, 1972 and October 27, 1976, the date the trial commenced, the indictments should have been dismissed (C.Cr.P. 581) unless there was an interruption or suspension of the prescriptive period. The second article of the Code of Criminal Procedure provides:

“The provisions of this Code are intended to provide for the just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.”

The day after the bills of information were filed, the prosecutor obtained an order for the defendant to be returned from the State Penitentiary at Angola to be prosecuted on the attempted murder charges. The record does not disclose why he was in Angola, but the uncontradicted testimony of defendant and his father is that when he was returned to St. John the Baptist Parish from Angola, a deputy sheriff released him, remarking that he had served his time and that it would be better if he left town. We do not know the date of that event. A parole officer testified on the motion to quash that defendant was released on parole from Angola on February 27,1973, and that his “case materials” were received in Shreveport March 21, 1973. Defendant himself testified he stayed with his parents about three weeks before going to Shreveport.

In the interval between the filing of the bills on August 1, 1972 and defendant’s release on parole, defendant was arraigned. A minute entry on the back of the bills shows: “8-14-72 — Notice of Arr. for 9-7-72.” The minute entry dated September 7, 1972 states: “Accused present in court without counsel — will acquire his own attorney. Arraignment set for Sept. 28, 1972.” The next minute entry is dated October 5, 1972, when defendant was present in court with his lawyer and was arraigned. There is a notice in the record that was served on defendant concerning the scheduled arraignment for September 28, 1972, but none for the day the arraignment actually took place. The next notice informed defendant of a pre-trial conference fixed for December 27, 1972 and the fixing of the case for trial on January (no day) 1973. Neither of these two notices show an address for defendant, nor where he was served. However, the prosecutor sought and apparently obtained an order returning defendant to Angola. His motion, dated February 8, 1973, recited that defendant was then incarcerated in St. John the Baptist Parish jail. We can only conclude from these recitations, and from the evidence that defendant was released on parole from Angola on February 27, 1973, that he was incarcerated either in the parish jail or state penitentiary from about Christmas, 1972 until February 27, 1973.

On March 19, 1973, defendant was served with a notice that a pre-trial conference would be held on March 26, 1973, and that the trial was set for the April, 1973 term of court. Defendant’s address on that notice is shown as “East 20th Street, Reserve, La.” But on March 21, 1973, the date of the pre-trial was changed to March 27, 1973, and the trial was fixed for April 9, 1973. This notice was not served, and a note written by a deputy (who was never called to testify) states: “Info from his mother, Mrs. Ben Alexander — Subject is in Hospital in San Antonio, Texas with bleeding ulcers, where he went to visit his sister, Mrs. Patricia Brooks. Will not be out in time to appear — Therefore I return this paper.” On April 4,1974 the trial was scheduled for May 28, 1974. The notice, addressed to defendant at East 20th Street, Reserve, La., was not served. The deputy wrote a note on the bottom: “I have been checking with his mother Mrs. Ben Alexander and she claims he’s still in Texas and won’t be here for this date. She claims he is sick — Cannot serve.” (At all times, defendant’s parents lived on East 28th Street in Reserve).

A handwritten entry on the back of the bills of information, which does not appear in the typed minutes, shows that the judge ordered an attachment to issue for the defendant on May 28, 1974; the disposition of the attachment does not appear, nor does the attachment.

On August 9,1974, the case was fixed for trial on September 24, 1974; the notice addressed to defendant at East 20th Street, Reserve, La. bears a return indicating that it was served on defendant “through his mother Mrs. Ben Alexander.” On September 24, a continuance was granted at defendant’s request until October 16, 1974. The grounds for the continuance do not appear.

A bond was never fixed for defendant until April 15, 1975.

On the trial of the motion to quash, the only mention of Texas occurred when defendant’s mother was asked if she had told a deputy that defendant was in Texas. She did not admit it, and was not pressed for an answer. Defendant, himself, was not questioned about Texas, and denied that he had ever gone anywhere to avoid trial. He testified that the reason he was returned to Reserve from Shreveport was that he “took sick” in Shreveport. We can only conclude, from the silence of the record, that all parties must have understood that the information about defendant in San Antonio was a mistake. At any rate, there is no evidence that the whereabouts of defendant was not at all times known to defendant’s parole officer.

The trial judge’s stated reason for denying the motion to quash was “the sole and conclusive fact that Mr. Alexander was absent from his usual place of abode within the state when the state was trying to bring this matter to trial.”

Prescription against commencing trial is interrupted if:

“(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.” C.Cr.P. 579.

There was no evidence before the trial judge from which he could find that defendant was not either in the parish jail, Angola, at his parents’ home in Reserve, or at his proper residence in Shreveport under the supervision of his parole officer from the Department of Corrections until July of 1974, when he returned from Shreveport to his parents’ home in Reserve.

The State relies on State v. Elfert, 247 La. 1047, 175 So.2d 826 (1965), to support its argument that prescription was interrupted September 7, 1972, when he appeared for arraignment without his attorney. Their reliance is misplaced. In the Elfert case the defendants appeared on the day of trial without counsel, and the case was continued to obtain representation for the defendants. The trial date was only ten days short of two years from the date the bill of information was filed. The court was correct in its result, but the Elfert case cannot be interpreted to stand for the proposition that there will be an interruption of prescription on every occasion when the defendant appears in court without his lawyer.

Here, the defendant was in custody; there was no showing that the State had made it possible for him to obtain a lawyer, nor that the State could not have appointed a lawyer to represent defendant at the arraignment. In effect, the State suggests we permit it to interrupt prescription by bringing a prisoner, who has not had the opportunity to obtain or have appointed counsel, into court for a proceeding in which counsel is necessary.

We need not decide here whether bringing defendant into court for arraignment before he had a lawyer suspended prescription. If there was suspension, it only lasted until, at the latest, the date of the arraignment, October 5, 1972. The prosecution would then have prescribed before August 12, 1974, when defendant was served, through his mother, notice of a new trial date, September 24, 1974.

Since there has been no showing of an interruption or suspension of the running of the two year period fixed by statute for the commencement of trial, the time limitation has expired.

The convictions and sentences are reversed and set aside, the indictments are dismissed (C.Cr.P. 581), and the defendant is discharged.

SANDERS, C. J., dissents.

SUMMERS, J., dissents. Based on the finding of fact by the trial judge, I believe defendant’s absence delayed the trial.


author: SANDERS, Chief Justice. PER CURIAM.

text:
    STATE of Louisiana v. Robert H. MURRAY.
    No. 60998.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

      Michael F. Barry, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Philip ' J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, Robert H. Murray, was charged with distribution of a controlled dangerous substance, Ethchlorvynol, a violation of LSA-R.S. 40:969. After a trial by the judge alone, defendant was found guilty as charged. Subsequently, the State charged defendant as a multiple offender under LSA-R.S. 15:529.1. The lower court found defendant to be a multiple offender and sentenced him to a term of twenty years in the custody of the Louisiana State Department of Corrections with credit for time served. On appeal, defendant relies upon three assignments of error for reversal of his conviction and sentence.

Defendant’s arrest occurred in the following factual context:

Criminal Deputy Sheriff Finis Price contacted Criminal Deputy Sheriff William Sherman on December 30, 1975, and told him that he had a confidential informant who could arrange for Sherman to buy Eth-chlorvynol from the defendant. These deputies, although members of the Orleans Parish Criminal Sheriff’s Office, were assigned to the Drug Enforcement Administration of the New Orleans Police Department. Two deputies, Jefferson and Borde-lon, watched Sherman while Sherman and the informant contacted defendant; drove with the informant to an area in uptown New Orleans; and made the “buy” from the defendant.

Deputy Sherman immediately turned the evidence over to Deputy Joseph Howard who recorded the drugs in the evidence book and put them in the evidence “safe” at Orleans Parish Prison. On February 18, 1976, Officer Brady of the drug abuse section of the New Orleans Police Department picked up the drugs from Deputy Sherman and took them to the crime laboratory for analysis.

Philip Aviles, criminalist for the New Orleans Police Department, produced the evidence at the trial and testified that it was the same that he had received from Officer Brady.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges that the trial court erred in denying his “Motion to Exclude Physical Evidence” made during trial and erred in overruling his evidentiary objection to that evidence. In this assignment of error, defendant urges two grounds: ) that the “chain of custody” of the evidence was not sufficiently proven; and 2) that the deputies who participated in the December 30 surveillance and undercover operations were without authority to do so.

Defendant’s first contention, that the “chain of custody” was not sufficiently proven, is without merit. The testimony of Officers Brady, Aviles, Sherman, and Howard, summarized above, affirmatively shows that the State fulfilled its burden of showing by a preponderance of the evidence that the evidence sought to be introduced is in fact that which was connected with the ease. Defendant’s argument goes to the weight to be given the evidence, not to its admissibility. State v. Mims, La., 330 So.2d 905 (1976); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Defendant’s contention that the deputies who participated in the December 30 surveillance and undercover operations were without authority is insubstantial. Defendant concedes in brief that the controlled substance was not obtained in contravention of his constitutional rights. Since no constitutional rights were violated, the evidence is not subject to suppression under Article 703 of the Louisiana Code of Criminal Procedure. LSA-C.Cr.P. art. 703; State v. Garnier, 261 La. 802, 261 So.2d 221 (1972).

Defendant essentially argues that, because the New Orleans Police Department did not personally secure the evidence, it was illegally obtained. We know of no law that prohibits the deputies of the Criminal Sheriff from supplying evidence of narcotic violations to the New Orleans Police Department.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the trial court erred in denying defendant’s “Motion in Arrest of Judgment or, alternatively, Motion for a New Trial.” These motions are based upon five grounds.

First, defendant alleges that the bill of information was deficient because it did not recite to whom the defendant sold the illegal drugs. The information filed against defendant charged that defendant “did wilfully and unlawfully distribute a controlled dangerous substance, to-wit: Ethchlorvynol” “on the thirtieth day of December in the year of our Lord, one thousand nine hundred and seventy-five[.]” This was sufficient to put the defendant on notice of the crime with which he was charged. In the present case, defendant, prior to trial, used his pre-trial discovery motions and had a preliminary hearing where Deputy Sherman testified. At no time prior to trial did defendant seek the name of the buyer by a bill of particulars, or move to quash the bill of information that charged him with distribution of the illegal drug. A technical deficiency in an indictment or information, which has caused no prejudice to defendant, may not be successfully raised after conviction. State v. Turner, La., 337 So.2d 1090 (1976); State v. Gordon, La., 336 So.2d 793 (1976); State v. Malmay, La., 315 So.2d 286 (1975); State v. James, La., 305 So.2d 514 (1974). Defendant’s first contention is without merit.

Second, defendant alleges that the State never established that Ethchlorvynol was the same substance as placidyl. Officer Aviles’ testimony shows that the substance bought from the defendant was tested for Ethchlorvynol and that the test showed the presence of the drug. This contention is without merit.

Third, defendant argues that his “defense of entrapment should have 'been maintained and defendant acquitted, since the evidence adduced at the trial affirmatively established that Deputy Sherman and his informant, ‘Lynn,’ initiated and instigated the transaction.” Entrapment is a factual defense on the merits, and since there is some evidence to support the trial court’s obvious finding that entrapment did not occur, we will not consider the sufficiency of that evidence. State v. Bates, La., 301 So.2d 619 (1974); State v. Kelly, 263 La. 545, 268 So.2d 650 (1972); State v. Douglas, 256 La. 572, 237 So.2d 382 (1970). This argument is without merit.

Fourth, defendant again urges that the trial court erred in denying his motion to exclude the evidence. For the reasons stated above, this argument is without merit.

Fifth, defendant urges that the ends of justice would be served by granting him a new trial even if he is not entitled to one as a matter of strict legal right. There is no showing that the trial judge abused his discretion in refusing to grant a new trial; therefore, its ruling shall not be disturbed. State v. Credeur, La., 328 So.2d 59 (1976); State v. Ferguson, La., 307 So.2d 361 (1975).

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial court erred in refusing to quash the bill of information charging him as a multiple offender under LSA-R.S. 15:529.1 and erred in sentencing him under the provisions of LSA-R.S. 15:529.1.

Defendant argues that he should receive an enhanced penalty only under the provisions of LSA-R.S. 40:982, which provides penalties for second and subsequent violations of Louisiana’s ' Controlled Dangerous Substance Law. The basis of his argument is that the provisions of LSA-R.S. 40:982 preclude sentencing under LSA-R.S. 15:529.1 because one of his prior convictions, enumerated in the multiple offender indictment, was a violation of Louisiana’s Controlled Dangerous Substance Law.

The State argues that it has the option to proceed either under LSA-R.S. 15:529.1, the general statute for enhancement of penalties for multiple offenders, or under LSA-R.S. 40:982, the special statute dealing with enhanced penalties for multiple violations of Louisiana’s Controlled Dangerous Substance Law.

LSA-R.S. 40:982 provides, in pertinent part:

“A. Any person convicted of any offense under this part, if the offense is a second or subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized, or both.”

The prior offense included in the habitual offender charge is possession of amphetamines, a violation of LSA-R.S. 40:971. Hence, the defendant could have been charged under the Louisiana Controlled Dangerous Substance Law for a second offense. The bill of information, however, did not charge the distribution of Ethchlorvynol as a second offense. Hence, the prior offense could not be used to enhance the penalty under LSA-R.S. 40:982. See State v. Keys, La., 328 So.2d 154 (1976); State v. Bass, 254 La. 83, 222 So.2d 865 (1969); State v. Gerald, 250 La. 759, 199 So.2d 536 (1967).

Thus, the question presented is whether a prior narcotics felony, which has not enhanced the sentence under the Controlled Dangerous Substance Law, can serve as a basis for an enhanced sentence under the Habitual Offender Law, LSA-R.S. 15:529.1. We think so.

LSA-R.S. 15:529.1 refers generally to “a felony.” It contains no restriction as to the type of felony. Its provisions may be invoked after conviction or after sentence within a reasonable time after the prior felony becomes known. State v. Maduell, La., 326 So.2d 820 (1976); State v. McQueen, La., 308 So.2d 752 (1975).

By statute, the district attorney is accorded wide discretion in determining when and how he shall prosecute LSA-C.Cr.P. art. 61. When more than one provision of the law applies, the district attorney has the discretion to elect which of the provisions to invoke. See, e. g., LSA-R.S. 14:4.

We discern no reason why this discretion should not apply to the use of the multiple offender procedures as long as the same offense is not used twice to enhance the penalty. See State v. Cox, La., 344 So.2d 1024 (1977); State v. Sanders, La., 337 So.2d 1131 (1976).

We conclude that the assignment of error lacks merit.

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

CALOGERO, J., concurs.

ON REHEARING

PER CURIAM.

Appellant in his application for rehearing properly points out that in our opinion we mistakenly related that the Orleans Parish Criminal Sheriff’s deputies were assigned to the Drug Enforcement Administration of the New Orleans Police Department. Actually they were sheriffs deputies working what they perceived to be a sheriff’s case who coincidentally were assigned to a task force, other components of which included the Drug Enforcement Administration of the United States Government and Narcotics Units of the New Orleans Police Department.

There is nonetheless no merit in the application for rehearing.

Accordingly it is denied.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Herman DAVIS.
    No. 61033.
    Supreme Court of Louisiana.
    April 10, 1978.
    Clyde D. Merritt, Archie B. Creech, Orleans Indigent Defender Program, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty,, for plaintiff-appellee.
   SUMMERS, Justice.

A true bill was returned by the Grand Jury of Orleans Parish on December 19, 1974 charging Herman Davis with the second degree murder of Earl Harris on December 12, 1974. La.Rev.Stat. 14:30.1. After trial by jury on March 5, 1975 Davis was found guilty as charged and sentenced to life imprisonment without probation, parole or suspension of sentence for a period of twenty years.

Two contentions are made on this appeal:

1) The trial court erred in denying the defendant’s motion for a mistrial when the State introduced inculpatory statements in evidence after it had informed defendant in answer to a request for bill of particulars that no such statements existed.

2) The trial court erred in overruling the defendant’s objection to the introduction of certain photographs.

The first contention is based upon a motion for bill of particulars in which the defendant asked if the State intended to introduce “any oral statements alleged to have been made by the defendant.” To this query the State replied, “The defense is not entitled to this information.” At the hearing held on the motion for particulars on February 19, 1975 defense counsel objected to the response, and the trial judge ruled that the defense was entitled to the information and ordered the State to respond. In addition, the trial judge ordered the State to disclose defendant’s “rap sheet” if there was one. In complying, the State amended its response by adding, “State has no oral or written statements.” This response was then ruled to be good and sufficient in law. However, on March 5, 1975 the State, pursuant to Article 768 of the Code of Criminal Procedure, prior to the opening statement, filed a written notice that it had in its possession and intended to offer in evidence, confessions and/or incul-patory statements made by defendant.

In the trial which followed that day the State’s attorney, outside the presence of the jury, announced that the State intended to lay a predicate for the voluntariness of any oral statement the defendant might have made while he was in custody. Defense counsel objected to any such proceeding on the ground that introduction of defendant’s statement was inconsistent with the answer to the bill of particulars and the prayer for oyer, stating that the defense was not prepared for such a development.

“What relief do you seek?”, the trial judge asked, acknowledging that the response to the bill of particulars was inconsistent with the State’s position at trial and that defense counsel might be unprepared. “If I can accommodate you by any type of recess at this time ... I will do my best . . ” the trial judge offered. He then stated for the record that after the jury was selected the State notified the defendant of its intention to use an inculpa-tory statement. When defense counsel made no response to the judge’s offer, the defense objection was overruled and the ruling was assigned as error.

Outside the presence of the jury the State then established the predicate for defendant’s statement, which was “blurted out” while defendant was being interrogated in the detective bureau: “All right; I killed him because he stole my gun.” The trial judge ruled that the statement was free and voluntary, and the jury was recalled. After again laying the predicate before the jury the detectives testified that defendant said, “I killed him because he stole my gun.” Other detectives present at the time testified to the same effect. It should be noted parenthetically that similar statements by the defendant at the scene of the killing were received in evidence as part of the res gestae later during the trial.

Argument by the defense on this contention centers upon the State’s change from its answer to the motion for particulars on February 19,1975 that it had no statements to the March 5, 1975 notice advising that it had confessions and/or inculpatory statements made by defendant which it would offer in evidence. Such a change is said to be prejudicial to the defense. Prejudice is claimed to have resulted because the defense was not prepared and because the Article 768 notice came after selection of the jury. Defense counsel argued that he accepted a juror he would not have accepted had he known the State would use the confession.

We are not referred to any testimony in explanation of the State’s change from a response that 'it had no statements to a notice that it would use defendant’s confession. Nor does the record support the defense contention that the juror it claims it would not have selected was in fact a security guard who would not look with favor upon a defense attempt to impugn the credibility of the police witnesses who heard defendant’s confession. Only argument in brief is presented for our consideration of this defense position. At best the argument is speculative and conjectural. Such is the case with the claim that defendant’s ease was based on self-defense until the notice was received that the State would use defendant’s confession.

Insofar as the defense claim of lack of preparation is concerned, it should be recalled that the trial judge offered to accommodate defense counsel in any manner in order that he could have time to prepare to meet the State’s evidence of defendant’s confession. By his noncommittal attitude defense counsel rejected this offer. Furthermore, except to say that he objected because he was not prepared, defense counsel did not respond to the judge’s query, “What relief do you seek?” Later at the trial, one of the detectives who heard the defendant confess testified that he was able to recall the exact words of the confession because the investigator’s report gave the exact words. It would appear that this information may have been available to the defense under the judge’s order.

Under these circumstances the defense did not fully satisfy the requirements of Article 841 on this issue. At this time the qualifications of the alleged objectionable juror could have been subjected to further voir dire and the basis for the defense complaint could have been cured. But this was not then sufficiently brought to the attention of the trial judge. In fairness to the trial judge he should have been given this opportunity to correct any claimed prejudice to the accused, for he too was genuinely concerned that the accused should have a fair trial, as the conduct of this trial will attest. A new ground for objection cannot be presented for the first time on appeal. State v. Holstead, 354 So.2d 493 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976).

Moreover, in strict compliance with Article 768 of the Code of Criminal Procedure, the State did file notice of its intention to introduce defendant’s confession within the time limit the Article prescribes. From a strictly legal point of view, this notice exculpated any error previously made by the State.

Other factors bear against the defense contention. If a mistrial had been granted no change in the trial on the merits would have resulted, for only selection of the jury had- occurred when the Article 768 notice was filed before the opening statement. At this time selection of a new jury would, have been the only consequence. Thus, in the absence of a showing of bad faith on the part of the State, and without a showing of prejudice to the defendant, the irregularity complained of does not warrant reversal of this conviction. Nor is it shown that Davis’ confession was crucial to the State’s case or that it was other than cumulative evidence of his guilt. Testimony of a number of the State’s witnesses put Davis at the scene of the killing with a knife, bending over and slashing the figure of his victim and declaring immediately thereafter that he hoped the victim would die.

An examination of this record convincingly demonstrates that the error complained of has not resulted in a miscarriage of justice, nor is it prejudicial to the substantial rights of the accused. Furthermore no substantial violation of a constitutional or statutory right is involved. La. Code Crim.Pro. art. 921; State v. Sharp, 338 So.2d 654 (La.1976).

The second contention relates to the introduction in evidence of three photo- . graphs. The first was a black and white photograph of the victim at the scene of the crime. The other two were color photographs of the victim at the morgue. The black and white photograph portrays the bloodied victim lying on the sidewalk at the scene of the crime. The color photographs reveal the upper torso and entire upper portion, respectively, of the nude body. The photographs are relevant and have probative value relative to identity of the victim; they corroborate the testimony of witnesses that the wounds inflicted were capable of inducing death and illustrate the manner in which death occurred. They were not unduly gruesome.

A defense argument is made that these photographs were merely cumulative and had no additional probative value. It is asserted also that one photograph at the scene and one at the morgue would suffice and the use of more than one was, by reason of the repetition, necessarily prejudicial. The argument is not tenable. Confronted with the heavy burden of establishing defendant’s guilt beyond a reasonable doubt it was incumbent upon the State to introduce these relevant photographs despite their somewhat gruesome aspect. State v. Cooper, 334 So.2d 211 (La.1976); State v. Gilmore, 332 So.2d 789 (La.1976); State v. Smith, 327 So.2d 355 (La.1976); State v. Beach, 320 So.2d 142 (La.1975); State v. Curry, 292 So.2d 212 (La.1974).

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

DIXON, J., dissents.

      . La.Code Crim.Pro. art. 841:
      “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      "The requirement of an objection shall not apply to the court’s ruling on any written motion.”


author: MARCUS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. James Phillip RICHARDS.
    No. 61042.
    Supreme Court of Louisiana.
    April 10, 1978.
    Dissenting Opinion April 18, 1978.

      Robert B. Nichols, Jr., DeRidder, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

James P. Richards was charged by the grand jury in the same indictment with thirteen separate counts of knowingly or intentionally possessing with the intent to distribute various controlled dangerous substances in violation of La.R.S. 40:966. Prior to trial, the indictment was amended to delete count ten; and, during trial, the state entered a nolle prosequi as to count two. After trial by jury on the remaining eleven counts, defendant was found guilty as charged on four counts and guilty of possession of a controlled dangerous substance on seven counts. Sentence was imposed by the trial court on defendant. Thereafter, defendant designated errors to be urged on appeal. Finding reversible error in one of the assigned errors, we preter-mit consideration of the other assignments of error.

Defendant contends the trial judge erred in denying his motion to suppress physical evidence seized from the car he was driving. The evidence was seized pursuant to a search warrant. He argues that the affidavit supporting issuance of the search warrant failed to set forth facts demonstrating probable cause to believe that illegal drugs were in the car.

The search warrant in question was issued to search a particularly described automobile for the purpose of seizing a “quantity of controlled dangerous drugs.” It was issued based upon facts recited in an affidavit by Deputies James Longoria and John Yerby. The affidavit was executed and the warrant was issued on December 21, 1976. The affidavit generally recited the following facts to establish probable cause for issuance of the warrant.

On December 19,1976, affiants were contacted by a confidential informant who had proven in the past to have given honest and truthful information resulting in arrests in felony cases. He told affiants that several persons, including defendant and Boyd Bryan, had recently committed two burglaries of a pharmacy, during which a large quantity of controlled drugs were stolen and divided equally among the participants. The informant also told affiants that defendant still has some of the drugs left and is storing them in the above described car. Defendant and Bryan were arrested in 1975 and convicted for possession of marijuana; and the other two co-participants are heavy drug users. The af-fiants verified the occurrence of the burglaries committed on July 25 and November 23, 1976, through the police chief, who stated that the investigation of the first burglary uncovered no evidence of a forced entry. Defendant was employed at the time by the owner of the building in which the pharmacy was located; part of his job was to make keys. Moreover, defendant had access to the building; he had cleaned the pharmacy and knew where the drugs were stored. The affidavit further stated that, during the period from January through September of 1976, Deputy Jarrell had acted as an undercover agent in the parish and had purchased stolen property and drugs. In September, Deputy Jarrell was informed by Sammy Collins, a known drug user, that defendant and Bryan had committed the burglary of the pharmacy and wanted to dispose of the drugs. Deputy Jarrell told Collins to check with defendant and Bryan about selling the drugs to him (Jarrell). Later, Collins reported back to Deputy Jar-rell that he had contacted defendant and Bryan who had the drugs but would not sell them at that time. Affiants did not know to whom the above described vehicle was registered; however, the confidential informant as well as affiants had seen defendant driving said vehicle.

La.Code Crim.P. art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of'the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Smith, 350 So.2d 1178 (La.1977); State v. Williams, 338 So.2d 1365 (La.1976); State v. Sierra, 338 So.2d 609 (La.1976); State v. Hightower, 272 So.2d 363 (La.1973). The-judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Smith, supra; State v. Williams, supra; State v. Sierra, supra; State v. Holmes, 254 La. 501, 225 So.2d 1 (1969).

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court set forth, in a “two-pronged test,” the criteria which a magistrate must follow in determining if an affidavit based upon hearsay has established probable cause for the issuance of a search warrant: (1) the affiant must articulate the basis for his belief that the informant is trustworthy, and (2) the affidavit must indicate the underlying circumstances from which the informant concluded that the narcotics were where he contended they would be. State v. Joseph, 351 So.2d 1162 (La.1977). Hence, the reliability of both the informant and his information must be demonstrated in the affidavit. Later the court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), made the criteria more flexible by allowing an informer’s tip which is inadequate under Aguilar standards to be corroborated by independent sources.

This court, in State v. Paciera, 290 So.2d 681 (La.1974), enunciated the following rule, deduced from United States Supreme Court cases, to measure the sufficiency of a supporting affidavit which is based upon informant-supplied data:

The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the infor mation reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information. See State v. Linkletter, 286 So.2d 321 (La.Sup.Ct.1973). (Emphasis supplied.)

The affidavit in the instant case satisfies the first Aguilar standard. It states-that the informant had proven in the past to have given honest and truthful information resulting in arrests in felony cases. These facts are sufficient to establish the reliability of the unidentified informant. No requirement exists, as defendant contends, that the arrests must have resulted in convictions. State v. Roach, 322 So.2d 222 (La.1975).

In addition, the affidavit must satisfy the second Aguilar standard by indicating the underlying circumstances from which the informant concluded that the narcotics were where he contended they would be. The reliability of the information may be established by either the direct personal observation of the informant or by recitation of the facts upon which the informant based his conclusion. State v. Smith, supra; State v. Paciera, supra.

The affidavit in the instant case fails to satisfy this second Aguilar standard. It states that the informant told the affi-ants that several persons, including defendant, committed two burglaries of a pharmacy, during which a large quantity of controlled drugs was stolen, and that the drugs were equally divided among the participants. It further states that the informant told the affiants that defendant still has some of the drugs left and is storing them in a particular car described in the application.

The affidavit does not set forth that the informant personally observed the various events reported or had direct personal knowledge of the factual allegations recited. Nor does the affidavit recite the facts upon which the informant based his conclusion. The informant could have been relying upon hearsay information or could have reached his own conclusion from circumstantial evidence. The affidavit does not disclose how the information was acquired. Hence, the affidavit failed to demonstrate the reliability of the information. State v. Smith, supra.

The conclusion that the tip in this case does not satisfy the second factor of the Aguilar test does not, however, end our inquiry into the sufficiency of the affidavit supporting the warrant. Affidavits must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Williams, supra; State v. Roach, supra. The magistrate is obligated to render a judgment based upon a commonsense reading of the entire affidavit. Spinelli v. United States, supra; State v. Williams, supra. Thus, when an informant’s statement fails to meet the “two-pronged test,” the affidavit may nevertheless be sufficient if elsewhere in the application there is enough information to permit “the suspicion engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli v. United States, supra; State v. Williams, supra; State v. Hightower, supra, n.2.

In the instant case, in addition to the information obtained from the confidential informant, the supporting affidavit sets forth predominately further hearsay information, and even double hearsay. The affidavit states that affiants spoke with the police chief but gives no indication of the particular source of his information. The affidavit does not reveal how the affiants obtained the information concerning Deputy Jarrell’s investigation nor how Collins concluded that defendant and Bryan possessed drugs. Moreover, most of the recited events occurred months before execution of the affidavit and none give any implication that defendant still possessed controlled drugs, much less that they were presently located in the described car. Even a commonsense reading of the entire affidavit would not cause “the suspicion engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli v. United States, supra, (emphasis added).

Accordingly, we conclude that the affidavit failed to make a sufficient showing of probable cause to believe that the drugs were in the car; the search warrant was improperly issued. Hence, reversible error was committed by the trial court’s refusal to suppress the evidence seized.

DECREE

For the reasons assigned, the convictions and sentences are reversed and the case is remanded for a new trial consistent with law and the views herein expressed.

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

The Court’s attention to technical details is unwarranted. The law does not condone this approach. Reasonableness and common sense are the standards which should guide the Court. If these standards had been followed the affidavit would be found to be sufficient. I dissent.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Michael McCLOUD.
    No. 61049.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

      Jerry A. Kirby, Kirby & Anzalone, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Stephanie W. Dawson, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, charged with aggravated rape, was found guilty after trial by jury of forcible rape and sentenced to serve twenty years at hard labor. For reversal of his conviction and sentence defendant relies upon twelve assignments of error. Finding no reversible error we affirm.

ASSIGNMENT OF ERROR NO. 1

In this assignment defendant claims the trial court erred in denying his motion for a preliminary examination which had been filed approximately four weeks before the grand jury indicted him. When the motion came up for hearing after the return of the grand jury indictment, the trial court declined to hear it on the ground that probable cause to charge the defendant had been determined by the grand jury.

A preliminary examination is designed primarily to determine whether probable cause exists to charge the accused. When a valid indictment is returned by a properly constituted grand jury, the existence of probable cause is conclusively presumed. Absent a showing that the failure to afford defendant a preliminary examination resulted in specific prejudice leading to an unfair trial, the issue becomes moot after a verdict of conviction is rendered. State v. Redfud, 325 So.2d 595 (La.1976); State v. Pesson, 256 La. 201, 235 So.2d 568 (1970).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

In assignment of error number two defendant complains of the trial court’s initial refusal to set bail prior to trial and that when a bail hearing was actually held it was not heard until immediately before the first trial of this case. It is well settled that on appeal after conviction these issues become moot. Defendant’s appropriate avenue for review was to invoke this Court’s supervisory jurisdiction at the time bail was denied. State v. Passman, 345 So.2d 874 (La.1977); State v. Jones, 332 So.2d 267 (La.1976); La.C.Cr.P. art. 322.

In assignment of error number three defendant contends the trial court erred in refusing to allow him a free transcript of the bail hearing held prior to the first trial in this case which ended in a mistrial. Defendant argues the transcript should be made available as of right for the purpose of aiding in the trial. There is no such authority requiring the State to furnish defendant a transcript of a bail hearing solely for this purpose.

Absent a showing of specific prejudice leading to an unfair trial, these assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these assignments defendant contends two police officers were allowed to testify that he exercised his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that from such testimony the jury could adversely infer guilt.

In oral statements to two police officers defendant initially denied that he knew the victim. Upon further questioning the defendant admitted he had sexual intercourse with the victim but contended it was with her consent. After agreeing to give a recorded statement the defendant requested the presence of an attorney and the interrogation ceased. A recorded statement was never obtained.

During a conference held out of the presence of the jury defense counsel and the prosecuting attorney agreed that the officers would be permitted to testify that a recorded statement was not obtained from the defendant but that defendant’s request for an attorney would not be mentioned. The record is unclear as to whether defense counsel agreed or objected to testimony by the officers that the defendant did not desire to give a recorded statement.

When the jury returned the officers fully related defendant’s oral statements in their testimony. The officers did not mention that defendant requested the presence of an attorney. The witnesses testified in two separate instances, however, that defendant refused to repeat his oral statement so that it could be recorded. No objection was made by the defense on either of these occasions.

Under these circumstances the defendant’s contention that this testimony was inadmissible and prejudicial is not reviewable after verdict because he failed to apprise the court of his objection and the grounds therefor. La.C.Cr.P. art. 841.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial court erred in allowing the victim’s mother to testify that her daughter told her she had been raped shortly after the incident because such testimony was inadmissible hearsay.

As we recently stated in State v. Elzie, 351 So.2d 1174 (La.1977):

“The statement of which defendant complains is certainly hearsay because it is the out of court, unsworn statement of a third person offered for the truth of its contents. State v. Jacobs, 344 So.2d 659 (La.1976); McCormick, Law of Evidence § 225 at 449 (Hornbook ed. 1954). But we have long recognized an exception to the hearsay rule allowing admission of the early complaints of rape victims. State v. Brown, 302 So.2d 290 (La.1974); State v. Hills, 241 La. 345, 129 So.2d 12 (1961). When there is no unexplained lapse of time between the rape and the victim’s complaint, and when the utterance is spontaneous, the person to whom the complaint was made is allowed to repeat the complaint in court, McCormick, supra § 272 at 580; Weinstein’s Evidence, § 803(2)[01] at 803-79.”

Less than twenty minutes after the incident occurred, the victim, who was upset and nervous, related to her mother that she had been raped. The statement, which was made under the pressure of the rape and soon after its occurrence, was properly admissible.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 10 AND 11

These assignments relate to remarks made by the prosecutor during his closing argument. In rebuttal argument the prosecutor referred to a statement made by defense counsel in his closing argument that rapes were being committed nightly in the victim’s neighborhood. Defendant objected to the prosecutor’s statement on the ground that there was no testimony to the effect that rapes were occurring nightly. The objection was overruled and forms the basis of assignment of error number ten. In his per curiam the trial judge stated that the remarks of the prosecutor were a response to statements made by defense counsel in his closing argument that the police had been investigating rapes daily and were within the scope of fair rebuttal argument. We find no error in this ruling. La.C.Cr.P. art. 774.

Assignment of error number eleven deals with the prosecutor’s statement that the defendant did not initially admit to the police that he had a knife. Defendant objected to this statement on the basis that it was unsupported by the record. The record reveals that the defendant first told the police he did not know the victim and had not raped her. When he later admitted having intercourse he stated he had a knife. The remark made by the prosecutor was clearly supported by the record and falls within the proper scope of the closing argument. La.C.Cr.P. art. 774.

These assignments do not present reversible error.

ASSIGNMENT OF ERROR NO. 12

While the jury was deliberating defense counsel observed the jury foreman approach the bailiff and ask a question concerning whether the judge or jury would determine the sentence to be imposed in the event a responsive verdict was returned. After the reading of the jury’s verdict of guilty of forcible rape, defense counsel moved for a mistrial on the basis of the foreman’s conversation with the bailiff. At that point the trial court refused to accept the jury verdict and heard evidence concerning the conversation with the bailiff. The foreman testified that he spoke with the bailiff because the jury, which had decided against finding the defendant guilty as charged, wished to know who would determine the sentence if a responsive verdict were returned. He stated that the bailiff informed him the judge would determine the sentence but the conversation had no bearing on the verdict that was returned. The trial court took the motion for mistrial under advisement overnight. When court reconvened defense counsel withdrew his motion for mistrial and asked the court to accept the jury verdict so that his client would not be exposed to retrial for aggravated rape. Following the trial court’s rec-ordation of the jury verdict defense counsel filed a motion for a new trial on the basis of the foreman’s conversation with the bailiff. The motion was denied. In his per curiam the trial judge stated defendant had waived his rights by allowing the jury verdict to be read before moving for mistrial and by subsequently withdrawing his motion and requesting that the jury verdict be accepted. By availing himself of the responsive verdict, the trial court reasoned, defendant could not then be heard to complain.

We agree. It was erroneous for the bailiff to answer the inquiry of the foreman since it is solely within the province of the court to give supplemental instructions. La.C.Cr.P. art. 808. However, defendant’s knowledge of this alleged defect prior to verdict precludes him from gambling on the verdict and raising the defect in a motion for new trial. La.C.Cr.P. art. 851(4); State v. Martin, 316 So.2d 740 (La.1975).

This assignment does not present reversible error.

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

      . We have examined assignments 7, 8 and 9 dealing with alleged improper cross-examination and find them to be without merit.

      . The first trial held in this case ended in a mistrial.

      . The following colloquy transpired between the prosecutor and defense counsel:
      “[Prosecutor]: Why don’t I do this; I think this kind of question, let me suggest, will avoid the entire problem; if 1 ask the officer what happened in the oral statement; rather than ask the officer and get an answer that he refused to testify further; and then ask the question, did you take a recorded statement from him; no; why; he did not want to give a recorded statement; and stop it right there. That’s not exercising any rights — that’s not going to involve anything at all.
      “[Defense Counsel]: I agree with Mr. [Prosecutor], if you just end it at that particular time, where, was there a recorded statement given; no, there wasn’t; and then let it end at that. I don’t see how it would hurt.

        “[Prosecutor]: I think the jury is entitled to know that he refused to give a recorded statement. It’s not the officers fault that no recorded statement was made.
      “[Defense Counsel]: I won’t make any inference to that at all. I tell you what 1 will do; 1 will ask him about the oral statement, why didn’t they write it down, so you won’t think I’m trying to pull anything on you.”


author: MARCUS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Joseph Allen BENNETT.
    No. 61067.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

      Kenneth E. Barnette, Seale, Smith & Phelps, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Joseph Allen Bennett and Carl R. Craig were charged in the same information with the crime of simple burglary in violation of La.R.S. 14:62. Bennett was separately tried by a jury and found guilty as charged. After his conviction but prior to sentencing, the district attorney filed an information accusing defendant of previous felony convictions under La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the court found defendant to be an habitual offender and sentenced him to serve eleven years at hard labor with credit given toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on eight assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in limiting his cross-examination of Officer Gene Baker concerning the description of a building located directly behind the burglarized clothing store. He argues that the trial judge’s ruling prevented him from impeaching the witness by showing that he had made a contradictory statement regarding the description of the building which was contained in a police report.

Officer Baker of the Baton Route City Police Department testified that on the evening of the alleged burglary, he and another officer responded to a silent alarm triggered at a Robert Hall clothing store. On direct examination, he stated that they approached the clothing store from the rear at which time they observed a man standing in the alleyway between the clothing store and an electrical wholesale building located directly behind the burglarized store which building at the time of the offense Baker believed was a warehouse. Upon seeing the officers, the individual fled with another male suspect following close behind. The two suspects, later identified as defendant and Craig, were subsequently arrested. On cross-examination, the witness was asked whether he had described the building located behind the burglarized store in his police report as an electrical wholesale building. Baker responded that, if he had described the building at all in his report, he described it as a warehouse. The witness had not reviewed his report since the preliminary hearing previously held. In an attempt to impeach the witness’ credibility on this point, defense counsel requested that the witness review the police report in order to determine how he had identified the building therein. The state’s objection to this request on the ground of relevancy was sustained by the trial judge.

If a witness does not distinctly admit making a statement contradictory to his testimony, evidence that he did make it is admissible. La.R.S. 15:493. It is not competent to impeach a witness as to collateral facts or irrelevant matter. La.R.S. 15:494. In the discipline of his court, the trial judge is vested with a sound discretion to stop prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross. La.R.S. 15:275.

In the instant case, since the witness distinctly admitted and explained any possible contradiction between his report and his testimony at trial, evidence of the contradictory statement was not admissible. In any event, the officer’s description of the building located behind the burglarized clothing store was clearly irrelevant to show the commission of the offense charged. Hence, defendant’s attempt to impeach the witness as to this irrelevant fact was improper. Under the circumstances, the trial judge did not err in limiting defendant’s cross-examination of the witness concerning the description of the building located behind the burglarized clothing store.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in permitting the state to call defendant’s wife as a witness against him at trial when the state was aware that defendant would assert his privilege as to private conversations between them as husband and wife.

During trial, Penny Bennett, defendant’s wife, was called to testify on behalf of the state. At the beginning of her testimony, defense counsel asserted defendant’s privilege with respect to private conversations between the spouses and objected to the state’s questioning of the witness on the ground that she was incompetent to testify as to those conversations. He further requested that the witness be instructed not to disclose in her testimony private conversations between the spouses. Thereupon, the trial judge instructed Mrs. Bennett that, although she could not be compelled to testify against her husband, she could testify against him if she so desired as to all nonprivileged matters which she had seen or observed. He further explained to the witness that she was not a competent witness against her husband as to private conversations between .them. Mrs. Bennett then expressed her desire to testify against defendant. Over defense objection, direct examination of the witness by the state was resumed.

The law applicable to the competency of a husband and wife to testify against each other in a criminal trial is embodied in La.R.S. 15:461 which provides in pertinent part:

The competent witness in any criminal proceeding, in court or before a person having authority to receive evidence, shall be a person of proper understanding, but;
(1) Private conversations between husband and wife shall be privileged.
(2) Neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint or other criminal proceeding, against' the other.

This statute, in effect, creates two distinct privileges. The first of these is the privilege which attaches to private conversations between husband and wife and which may be asserted by the defendant-spouse. Secondly, the statute establishes a privilege in favor of a spouse called to testify against the other spouse by providing that neither spouse shall be compelled to be a witness against the other in a criminal proceeding. The exercise of this privilege rests with the testifying spouse alone and may not be invoked by the defendant-spouse. The statute, however, does not prohibit a spouse from waiving this privilege and voluntarily taking the stand against the other spouse to testify to nonprivileged evidence. State v. Triplett, 313 So.2d 227 (La.1975).

In the instant case, although defendant’s wife possessed a privilege not to testify against her husband, she expressly waived this privilege and voluntarily took the stand against defendant on behalf of the state. By waiving her privilege, the witness became competent to testify against her husband at trial as to nonprivi-leged evidence. Defendant could not prevent his wife from so testifying by asserting his privilege as to private conversations between the spouses since that privilege could be urged only to prevent his wife from disclosing during the course of her testimony private conversations between them. Hence, because defendant’s wife was competent to testify against him at trial, the state was properly permitted to call her as a witness against defendant. Assignment of Error No. 3 lacks merit.

ASSIGNMENTS OP ERROR NOS. 4 AND 5

Defendant contends the trial judge erred in permitting defendant’s wife to testify at trial in that her testimony was irrelevant. He argues that the sole purpose of the witness’ testimony was to compel defendant to assert his privilege as to private conversations between husband and wife before the jury which necessarily implied to the jury that defendant was thereby concealing incriminating evidence.

On direct examination by the state, Mrs. Bennett emphatically denied that she was with defendant on the evening of the alleged burglary. She testified that she and defendant had separated approximately two weeks prior to the date of the commission of the offense and did not resume living together until two weeks thereafter. At the time of trial, defendant and his wife were once again separated. The witness further stated that defendant was well acquainted with Carl R. Craig, one of defendant’s alleged co-perpetrators of the crime. Defendant’s objection to the witness’ testimony on the ground of relevancy was overruled by the trial judge.

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, 355 So.2d 1305 (La.1978); State v. Russell, 352 So.2d 1289 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974). In the instant case, the testimony of defendant’s wife was presented by the state to refute a defense alibi anticipated by the state that defendant was with his wife when the burglary was committed and, therefore, could not have participated in the crime. Furthermore, by the witness’ testimony, the state connected defendant with Craig, an alleged co-participant in the crime who was arrested as he fled from the scene of the burglary. As such, the testimony of defendant’s wife was relevant and admissible. We, therefore, reject defendant’s contention that the state’s sole purpose in presenting this testimony was to prejudice defendant by compelling him to assert his privilege as to private conversations between the spouses before the jury. Accordingly, the trial judge did not abuse his discretion in permitting the witness to testify.

Assignments of Error Nos. 4 and 5 are without merit.

ASSIGNMENTS OP ERROR NOS. 6 AND 7

Defendant contends the trial judge erred in denying his motion for a mistrial grounded on the claim that the state improperly commented in its closing argument on defendant’s assertion of his privilege as to private conversations between husband and wife. He argues that the comment was prejudicial in that the jury necessarily inferred from the comment that, by exercising his privilege as to private interspousal conversations, defendant was concealing incriminating evidence from the jury.

During his closing argument to the jury, the prosecutor reviewed the evidence presented by the state at trial which established defendant’s participation in the instant offense. Thereafter, he remarked to the jury:

You haven’t seen any other evidence. You haven’t seen any evidence, like Mr. Barnette [defense counsel] told you he was going to show you, of anybody coming up here and testifying, no, Joe Bennett was at my house that night, or no, I went to the show with Joe Bennett. The only thing I could do was call Penny Bennett, who got up here. She was told that she had a privilege against testifying against her husband, but she wanted to testify. Now, she was limited in the testimony she could give because a privilege was exercised by Mr. Barnette, but I attempted to let her tell everything that she knew to you. It was objected to by the defense. At least we know that he was not with her that night and that they had not been together for two weeks or so before, and that about two weeks af-terwards, she went back to him at his request, and that he was very well acquainted with Carl Raymond Craig. Now, it would not have been necessary for an objection to have been made by Mr. Barnette, but an objection was made against this witness, Penny Bennett, telling you the jury what she knew from the defendant.

Immediately, defense counsel objected to the prosecutor’s remark and moved for a mistrial. The trial judge denied the motion but admonished the jury that, as defendant’s wife, Mrs. Bennett was not competent to testify against her husband as to private conversations between the spouses and the jury was not to speculate as to what her testimony might have been had defendant not asserted his privilege with respect to those conversations.

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument, refers directly or indirectly to the failure of the defendant to testify in his own defense. La.Code Crim.P. art. 770(3). However, in the instant case, the prosecutor’s remark did not refer to defendant’s failure to testify in his own defense but rather was directed toward defendant’s assertion of his privilege with respect to private interspousal conversations. Accordingly, La.Code Crim.P. art. 770(3) is inapplicable; rather, La.Code Crim.P. art. 771 is the applicable provision and provides in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

At the outset, it should be noted that the privilege as to private conversations between husband and wife is not one of constitutional dimensions; rather, it is purely statutory. La.R.S. 15:461. As the record reflects, defendant’s wife was not a significant witness. She was neither a participant in nor a witness to the crime. On the other hand, evidence presented by the state as to defendant’s participation in the crime was substantial. Under these circumstances, we do not consider that any possible inference as to defendant’s guilt or innocence raised in the minds of the jurors by the prosecutor’s comment on defendant’s assertion of this privilege added any critical weight to the prosecutor’s case. See Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). Therefore, although the prosecutor’s comment was improper, we do not find that it created such prejudice against defendant to warrant the granting of a mistrial. Furthermore, the immediate admonition by the trial judge to the jury that defendant had legitimately exercised his privilege as to private conversations between the spouses and the jury was not to speculate as to what defendant’s wife would have testified to had defendant not exercised this privilege was sufficient to dispel any prejudice which might have been created by the prosecutor’s comment and to assure defendant a fair trial. Accordingly, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignments of Error Nos. 6 and 7 lack merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in permitting an attorney who had represented defendant in connection with a prior felony charge to testify at the habitual offender hearing as to his representation of defendant. Defendant argues that this testimony was elicited in violation of the attorney-client privilege provided for in La. R.S. 15:475.

After conviction but prior to sentencing, the district attorney filed an information accusing defendant of previous felony convictions under La.R.S. 15:529.1 (Habitual Offender Law). In order to prove that defendant had previously been convicted of simple burglary, the state called the attorney who had been appointed to represent him on the prior burglary charge. Defendant objected to this testimony claiming the attorney-client privilege. The objection was overruled by the trial judge. The attorney-witness identified defendant as the' same person whom he had represented on the prior charge of simple burglary and who had pleaded guilty to it.

The identical contention asserted herein by defendant was previously addressed by this court in State v. Hayes, 324 So.2d 421 (La.1975), in which we held that the attorney-client privilege does not extend to the fact that an attorney represented a given client which is a matter of public record. Hence, in the instant case, the trial judge properly permitted the attorney-witness to testify to the fact that he represented this same defendant in connection with a prior felony conviction.

Assignment of Error No. 8 is without merit.

DECREE

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

DIXON, J., concurs.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents for the reasons assigned by CALOGERO, J.

CALOGERO, Justice,

dissenting.

I dissent because I feel that the majority mistakenly finds no reversible error in the judge’s denial of a mistrial motion made when the state improperly commented in closing argument on defendant’s objection to allowing his wife to testify as to their private conversations. I believe that the prosecutor’s remark carried the prejudicial inference that the defendant, by exercising his privilege as to private interspousal communications, was concealing from them incriminating evidence. I would find reversible error in defendant Bennett’s assignments of error 6 and 7.

      . Defendant has neither briefed nor argued Assignment of Error No. 1. Therefore, we consider this assignment of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . At the preliminary hearing, defendant’s wife testified on behalf of the defense that she and defendant were together on the' night of the crime. Defendant likewise testified to this alibi at the hearing. Thereafter, defendant’s wife agreed to testify at trial against defendant on behalf of the state denying that she was with defendant when the offense was committed.

      . La.R.S. 15:475 provides:
      No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client’s express consent, to disclose any communication made to him as such legal adviser by or on behalf of his client, or any advice given by him to his client, or any information that he may have gotten by reason of his being such legal adviser.


author: PER CURIAM.

text:
    STATE of Louisiana v. Robert L. BROWN.
    No. 60913.
    Supreme Court of Louisiana.
    April 19, 1978.
    Rehearing Denied May 19, 1978.
    Dean A. Sutherland and Robert J. Bar-bier, Terriberry, Carroll, Yancey & Farrell, 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. ■
   PER CURIAM.

Defendant’s conviction and sentence are affirmed.

Treating defendant’s letter as a petition for habeas corpus, the petition is denied on the basis of the evidence adduced at the evidentiary hearing in the trial court.


text:
    STATE of Louisiana v. Keith LEWIS and Lloyd J. Washington.
    No. 61198.
    Supreme Court of Louisiana.
    April 19, 1978.
    Rehearing Denied May 19, 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.
    John J. Dolan, New Orleans, for defendants-appellants.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Jon F. HOGAN.
    No. 61687.
    Supreme Court of Louisiana.
    March 13, 1978.
   JOINT MOTION TO DISMISS

Now into court comes the State of Louisiana through Assistant District Attorney, Abbott J. Reeves and defense counsel J. Hunter Bienvenu and with respect petitions the court to dismiss the application for writ of the above entitled captioned case filed February 28, 1978 for review of ruling in the 24th Judicial District Court. Amicable resolution of the question regarding compulsory process has been reached.


text:
    Mrs. James E. KELLY, Jr., Individually, etc., et al. v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.
    No. 61505.
    Supreme Court of Louisiana.
    March 30, 1978.
   Motion and Order to Dismiss

On motion of Mrs. James E. Kelly, Jr., individually and as curatrix of the estate of the interdict, James E. Kelly, Jr., as well as individually and as administratrix of the estate of the minor children, James E. Kelly, III and Tracy Kelly, and on suggesting to the Court that the captioned case has been compromised between all parties to this litigation; and on further suggesting to the Court that it unfortunately renders the granting of the writ by this Honorable Court moot; and accordingly, the appeal should be dismissed. IT IS ORDERED that the appeal of Mrs. James E. Kelly, Jr., individually and as curatrix of the estate of the interdict, James E. Kelly, Jr., as well as individually and as administratrix of the estate of the minor children, James E. Kelly, III and Tracy Kelly, be and the same is hereby dismissed.


text:
    STATE of Louisiana v. Clarence FIRVEN.
    No. 62092.
    Supreme Court of Louisiana.
    April 24, 1978.
   In re: Clarence Firven applying for writs of certiorari, prohibition, mandamus and stay order. Jefferson Parish.

Writ granted. Bond reinstated; defendant released on bond pending trial; surety should be notified that bond reinstated.


text:
    STATE of Louisiana v. Freddie W. CASE, Jr., Michael Wayne Davis, William J. Kimball.
    No. 61894.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Freddie W. Case, Jr., Michael Wayne David & William J. Kimball applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Concordia.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Richard P. Boyd, Judge of the 7th Judicial District, Court for the Parish of Concordia, to transmit to the Supreme Court of Louisiana, on or before the 12th day of May, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Elizabeth L. BATES and Jessie T. Miller. STATE of Louisiana v. Bonnie BRANCH. STATE of Louisiana v. Marion F. FARMER and John Cosse. STATE of Louisiana v. Mary J. RICHARDSON, Mary B. McIntyre and Mardell Stephens.
    No. 61884.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Elizabeth Bates, Jessie T. Miller, Bonnie Branch, et al. applying for writ of review. Parish of Caddo.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable William J. Fleniken, Judge of the First Judicial District, Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 12th day of May, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Jesse McGEE.
    No. 61968.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Jesse McGee applying for remedial writs. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. George Davis McCLAW.
    No. 61969.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: George Davis McClaw applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Stanley ZENO v. CLERK OF COURT, 15TH JUDICIAL DISTRICT COURT, LAFAYETTE PARISH, Louisiana.
    No. 61970.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Stanley Zeno applying for writ of mandamus. Parish of Lafayette.

Denied.


text:
    STATE of Louisiana ex rel. Christopher KENNER, Jr. v. CLERK OF COURT, 16TH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY, State of La., et al.
    No. 61974.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Christopher Kenner, Jr., applying for writ of mandamus. Parish of St. Mary.

Denied. Application was not filed in district court.