author: TATE, Justice.

text:
    STATE of Louisiana v. Adrian WILSON.
    No. 62398.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Phil Breaux, St. Gabriel, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Houston C. Gas-con, III, Asst. Dist. Atty., Samuel C. Cashio, Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

After a jury-waived judge-trial, the defendant Wilson was convicted of possession of marijuana with intent to distribute, La. R.S. 40:966, and sentenced to imprisonment at hard labor for nine years.

We find that reversal is required by the defendant’s Assignment of Error No. 1, which complains of the trial court’s denial of his motion to suppress the marijuana as unconstitutionally seized. Accordingly, we need not discuss his other four assignments.

(1)

The marijuana was seized when two narcotics officers stopped an automobile in which the accused was riding as a passenger. The vehicle was stopped on the open highway on the basis of suspicion engendered by an informer’s tip.

The state contends that the investigatory stop for questioning was justified on the basis of the officer’s reasonable suspicion of criminal activity. The state relies upon La. C.Cr.P. art. 215.1.A: “A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or misdemeanor and may demand of him his name, address and an explanation of his actions.”

It is well settled that evidence seized or otherwise obtained as a result of an unconstitutional “investigatory” stop cannot constitutionally be admitted into evidence against a criminally accused. State v. Smith, 347 So.2d 1127 (La.1977) and jurisprudence there cited.

(2)

The central issue, therefore, involves whether the officers had reasonable cause to make the investigatory stop. Under the facts of each case, this reasonable cause sufficient to suspect the detainee of past, present, or imminent criminal conduct depends upon whether the officers had sufficient knowledge of particular facts sufficient to permit them to infringe upon an individual’s constitutional right to be left alone free of governmental interference with his liberty. State v. Smith, cited above, and jurisprudence set forth therein.

The virtually undisputed facts as to this issue (the testimony of the police officers) can be construed so as to show preponderantly only that the basis for the stop of the vehicle was solely a conjectural tip of unknown reliability.

Consequently, for reasons to be stated more fully below, we find that the warrant-less stop of the vehicle, proceeding apparently lawfully on the public highway, and the search of its contents, was an unconstitutional invasion of the accused’s right to privacy against intrusion by governmental agents guaranteed to him by Article 1, Section 5, La. Constitution of 1974: “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. * * * ”

(3)

We set forth below the factual context of this holding, which is based entirely upon the testimony of the two arresting police officers.

These deputies were part of the narcotics unit of the sheriff’s department. On the evening in question, they had gone over to the east-bank area of the parish to see if they could discover any narcotics activity. They had done so, not on the basis of any reports (so far as the evidence shows), but only as a general surveillance of this part of their parish.

On the evening in question, they took along a confidential informant. The informant would go into a night club and report to the officers parked on the levee outside if he learned of anything. The informant's efforts to discover narcotics activity were apparently fruitless for the first three hours or so.

However, at about 11:30 p. m., the informant was sent into the Ballerina Lounge. Some fifteen minutes later, he reappeared and told the officers “[t]here is a load coming in. . It’s headed down towards the Ballerina Lounge [and] Adrian Wilson should be in the car.” He identified the vehicle as a 1968 blue, four-door Oldsmobile. The informant got his information “from talking to people inside the barroom.”

The officers immediately set off in search of the vehicle. A short time later, they spotted a blue Oldsmobile — “The only car we seen the whole time from the time we left till we seen the vehicle,” — heading towards the Ballerina Lounge on the main highway into the parish.

The stop was for one reason alone: As one deputy testified, the officers wanted “to see if this subject was holding marijuana. . . . He wasn’t stopped for a traffic violation. He was stopped for a warrant — we had information that he was holding.”

While the informant had told them Wilson was a narcotics dealer during the patrol, neither officer had ever seen the defendant before that morning.

With regard to the reliability or experience of the informant, the only testimony is that of one deputy that the informant had helped him “[o]nce or twice [in the past]. It wasn’t narcotics oriented, it was information — burglars, so forth.”

(4)

The defense in brief argues that the informant’s tip supplied neither probable cause for an arrest, nor reasonable grounds for an investigatory detention. Art. 215.1 C.Cr.P. In this view, the seizure of evidence which came into view only after the stop was irredeemably tainted by the prior illegality.

The state answers that the tip provided, at least, reasonable suspicion under Art. 215.1 and that the evidence thereby came into the plain view of the officers.

(5)

The state seems to concede, as it must, that the officers did not have probable cause to arrest the defendant when they stopped the car.

For the probable cause showing, the double-hearsay nature of the tip does not necessarily present a problem. State v. Paciera, 290 So.2d 681 (La.1974). Where the officers arrest or search an individual based upon hearsay information, the hearsay must contain underlying circumstances and details sufficient to provide a substantial factual basis to conclude both (1) that the informant is credible and (2) that the information so furnished is of a reliable nature, i. e., was obtained under circumstances or from sources factually indicating its veracity. State v. Richards, 357 So.2d 1128 (La.1978).

Even assuming the reliability of the informant — and pretermitting the paucity of the state’s showing in this regard — , the credibility of his tip turns not on his own personal knowledge and observation, State v. Paciera, 290 So.2d 681 (La.1974), but on the basis of the information obtained from those unseen and undisclosed persons in the Ballerina Lounge. The record contains no basis on which “to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.” Paciera, 290 So.2d at 686. For all that appears, the information was no “more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

(6)

The state forcefully contends that the informer’s tip, otherwise patently inadequate to furnish probable cause for an arrest or search, nevertheless provides reasonable cause for suspicion sufficient to make the investigatory stop.

Reasonable cause for an investigatory stop or detention is something less than probable cause. Nevertheless, it requires the detaining officer to have articulable knowledge of particular facts sufficient reasonably to suspect the detained person of criminal activity and thus to justify, by this temporary detention for inquiry, an infringement upon his constitutionally protected right of freedom from governmental interference.

See: State v. Dixon, 337 So.2d 1165 (La.1976); State v. Weathers, 320 So.2d 892 (La.1975). See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

An informant’s tip can provide a police officer with reasonable cause to detain and question a suspect. State v. Sims, 350 So.2d 1189 (La.1977); State v. Robinson, 342 So.2d 183 (La.1977); State v. Perique, 340 So.2d 1369 (La.1977); State v. Dixon, 337 So.2d 1165 (La.1976). Whatever the technical or practical distinctions between an arrest and a stop, the rule that emerges from these decisions is that, for either purpose, the information given by a reliable informant must carry with it sufficient in-dicia of its reliability to furnish reasonable cause to make an investigatory stop, the same criteria of trustworthiness required for the showing of the greater degree of probability of criminal conduct necessary to justify an arrest.

Here, as in State v. Sims, 350 So.2d 1189 (La.1977) (where we held the stop to be unjustified), the record reveals no information about the ultimate source of the tip connecting defendant with marijuana trafficking — the anonymous informant inside the Ballerina Lounge. That information, as in Sims, was neither detailed nor verified. Although the officers may have heard of the defendant Wilson, they had never seen him before. They had no physical description of their suspect, nor of his supposed companions.

The only corroboration of the tip came from the type of car and (possibly) from the number of occupants observed by the officers.

This vehicle was traveling south on the main highway into town, shortly after midnight on a Saturday night. The police officers with commendable frankness testified that the vehicle was being driven in a lawful manner and took no evasive action to avoid them after they signaled it to stop.

The officers thus had no reasonable basis independent of the anonymous informant’s tip to connect this vehicle and these occupants with the alleged criminal activity: nothing (prior to the stop ) to suggest that the tip in fact was anything more than casual rumor or accusation.

An unverified and undifferentiated tip derived from an undisclosed source cannot supply the reasonable cause to justify an intrusion upon a person’s liberty, whether that intrusion is characterized as an arrest or as an investigatory stop. As stated in State v. Tassin, 343 So.2d 681, 691 (La.1977): “ * * * factual cause, not underworld gossip, is required by our state constitution before governmental agents may invade the privacy of an individual living under protection of that constitution.”

The anonymous tip of unknown basis no more justified under our constitution the stop of the vehicle in which the defendant was riding, than it did that of the parish priest or local doctor or of any other unsus-picious traveller on the highway at the time.

We conclude, therefore, that the trial court erred in denying the motion to suppress the evidence unconstitutionally seized as a result of the illegal stop herein.

Decree

Accordingly, we reverse the conviction and sentence, and we remand for a new trial in accordance with law.

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

DENNIS, J., concurs.

      . In view of our holding of the unconstitutional stop, we do not reach the substantial additional contention that, even if the stop were justified, the marijuana in the vehicle, seized as a result of such an allegedly investigatory stop, was the product of an unlawful warrantless search of the vehicle without probable cause, despite the state’s contention that the objects seized were in plain view.

      . The Seventh Circuit noted in U. S. v. Wilson, 479 F.2d 936, 941 (7th Cir. 1973), “[i]f hearsay information is acceptable in arriving at probable cause, and it is, Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), then hearsay based on hearsay should be acceptable as long as the police officer has sufficient information so that both levels of hearsay meet the two-pronged test spelled out in Aguilar [v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)].” As noted above, that test requires a showing of the reliability of both (1) the hearsay informant and (2) the information.

      . The lead case in this area remains the United States Supreme Court’s decision in Terry v. Ohio, supra. Since the court in Terry explicitly held that a “stop and frisk” is no less a search and seizure for purposes of the Fourth Amendment than an arrest and search incident thereto, the constitutional differences between the two, and the distinction between reasonable grounds and probable cause remain elusive and troublesome.
      Some members of this court have therefore suggested at least on occasion that no difference exists. Thus, in State v. Kinneman, 337 So.2d 441, 444 (La.1976), the opinion by Dixon, J., notes that to the extent Art. 1, § 5, La.Const. of 1974 expressly proscribes invasions of privacy, “it should make no difference in Louisiana whether the actions of the police constituted an ‘arrest,’ with the discovery of contraband an incident thereto, or whether the police action was something less than an arrest, during which the contraband was seen ‘in plain view.’ In either case the police action must have been reasonable, that is, supported by probable cause.” See also, State v. Shivers, 346 So.2d 657 (La.1977), opinion by Dixon, J., joined by Calogero, J., and Dennis J., concurring with plurality opinion in that case.

      . The federal constitutional provision against unreasonable searches and seizures seems to have been interpreted similarly to our interpretation of Louisiana’s constitutional provision. See Terry v. Ohio, cited in text, and its progeny.
      In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the United States Supreme Court upheld an officer’s investigatory approach to a suspect, based upon a tip by a known and reliable informant that the suspect was armed and was carrying narcotics. Although the high court opinion does not elucidate the basis of his reliability, the intermediate court opinion states that the informant who was not only known to the officer as reliable but was “an eye-witness, invested with ‘built-in credibility’ ” as to the facts stated. Williams v. Adams, 436 F.2d 30, 33 (CA 2, 1970) (see also, 441 F.2d 394 (CA 2, 1971)). The incident occurred in a high-crime area at 2:15 in the morning.
      As the Supreme Court stated in Adams, 407 U.S. 147, 92 S.Ct. 1924: “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require investigation before a forcible stop of a suspect would be authorized.”

      . Anonymous tips sometimes can, and do, lead to lawful investigatory stops. In State v. Mims, 330 So.2d 905 (La.1976), for example, police received a bulletin of a report (from an undisclosed source) that occupants of a particularly-described vehicle had purchased cigarette papers at a local store, and that one of the occupants had a strong odor of marijuana about him. The officers spotted the vehicle and followed it to a grocery store. As one of the officers walked toward the store, he walked past the vehicle and observed numerous marijuana seeds on the seats and floorboard of the vehicle. The officers then stopped the defendant. The officer’s observation of the seeds pri- or to the actual seizure of defendant thereby transformed an otherwise patently inadequate tip into a reasonable basis justifying an infringement on the individual’s right to be free from governmental interference.

      . In the present case, the alleged observations by a deputy of marijuana in the glove compartment and within a bag on the back seat came only after the vehicle had been seized by the officers. This court has of course repeatedly and unequivocally cautioned that for evidence seized within the plain view of the officers, there must be a prior justified intrusion on the protected privacy rights of the accused. State v. Fearn, 345 So.2d 468 (La.1977); Art. 1, § 5, La.Const. of 1974.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    Olivia Dupar DRUMMER v. CENTRAL PECAN SHELLING COMPANY and Travelers Insurance Company.
    No. 62402.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Edward E. Rundell, Gold, Little, Simon, Weems & Bruser, Alexandria, for defendant-respondent.
    Jay C. Zainey, New Orleans, for plaintiff-applicant.
   DENNIS, Justice.

In this workmen’s compensation review we consider only whether the trial court committed manifest error in deciding that the employee’s disability ceased eleven weeks after her accidental worker’s injury.

Plaintiff, Olivia Dupar Drummer, received a coccyx and low back injury on April 30, 1974, when she fell from the stool upon which she was seated at her employment. It is uncertain whether the stool collapsed and precipitated the fall, or whether the plaintiff’s fall caused the stool to break. This is not important, however, as the parties have stipulated that a work-related accident did occur. The employer’s insurer paid workmen’s compensation benefits until July 17, 1974, but denied any further liability.

Plaintiff instituted suit for total and permanent disability workmen’s compensation benefits, penalties and attorney’s fees. The district court rejected the plaintiff’s demands entirely, and the court of appeal affirmed without a full published opinion but by a memorandum opinion stating that it found sufficient evidence to support the trial judge’s evaluation of the witnesses’ credibility. Because this Court was of the opinion that the trial judge’s decision was not based upon testimonial credibility but upon manifest error in findings of fact induced by erroneous conclusions of law, we granted certiorari. 360 So.2d 874 (La.1978).

The day after the accident, May 1, 1974, the plaintiff consulted her family physician, Dr. E. J. Kalifey, who treated her and referred her to Dr. R. J. Beurlot, an Alexandria orthopaedist. Although Drummer displayed tenderness in the lower sacral area and over the proximal coccyx, Dr. Buerlot was unable to find any objective signs of injury during his examination of her on June 20, 1974, and recommended that she return to work immediately. Dr. Kalifey agreed that the plaintiff would be able to recover and return to work eventually, but, noting that the plaintiff appeared to him to be in great pain, he did not recommend that she return to work at that time. Dr. Kali-fey continued to see the plaintiff on a regular basis until January 6, 1975.

Dr. Kalifey later referred the plaintiff to Huey P. Long Charity Hospital in Baton Rouge, and x-rays were taken at the hospital on January 9, 1975. According to an unidentified radiologist at the hospital these x-rays manifested acute anterior angulation at the sacro-coccygeal articulation and indicated a possible fracture of the coccyx. The plaintiff did not return to Charity Hospital for further treatment, however, because of lack of transportation.

The plaintiff subsequently moved to New Orleans to live with her sister and was treated by Dr. F. Chalaire, a New Orleans general practitioner. Dr. Chalaire began conservative treatment and referred her to a neurosurgeon, Dr. Kenneth Vogel, on February 20, 1975, for evaluation. Dr. Vo-gel discovered objective signs of low back injury consisting of limited motion in all directions and point tenderness over the L 4 and L 5 facets bilaterally. Dr. Vogel found that the patient was experiencing symptoms of a chronic lumbosacral strain, or nerve root irritation, and he recommended continued conservative treatment consisting of medication and physical therapy. Dr. Vogel noted that this injury was probably the result of plaintiff’s accidental fall. The plaintiff returned to Dr. Vogel on March 20, 1975. Although her neurological examination was unchanged, Dr. Vogel reported that the patient claimed to be experiencing less pain. Dr. Vogel recommended that she continue conservative treatment for one additional month after which period he felt that she would be able to return to gainful employment.

The plaintiff, who had been a good employee for the defendant for three years before her accident, testified that she was unable to return to her job because she experienced sharp pains when forced to sit or stand for more that 35-40 minutes. The only doctor who testified that the plaintiff was able to return to work as of the date compensation payments were stopped was Dr. Beurlot. None of the doctors, including Dr. Beurlot, denied that the plaintiff was experiencing pain. On the contrary, all of the doctors acknowledged that an injury of the type described by the plaintiff is likely to cause considerable and persistent pain.

The trial court denied the plaintiff’s claim for additional compensation for written reasons which, in pertinent part, provided:

“There is no medical testimony that Plaintiff is or was disabled after June 20, 1974. All we have is the complaints she made to physicians that she had pains in the tailbone area, and that she knew she could not go to work. She admitted that all the doctors who examined her, had told her she could go back to work. She admitted she has not tried to go back to work. The deposition of Dr. Vogel, who saw Plaintiff twice in 1976, almost two years after the accident, gives her complaints as being in the lumbo sacral spine, rather than the coccyx area; and again, they are based upon subjective findings.
“It seems to the court, that if there was something radically wrong with Plaintiff’s lower spine, after two years and almost three years, following her accident, there should be some objective findings by some doctor, supporting her alleged disability. The court is asked, instead, to accept her complaints of pain and disability as truthful, and to award her compensation for total and permanent disability, with no objective findings by any doctor.
“The court feels and holds that Plaintiff bears the burden of proof showing disability, beyond the time for which insurer paid her compensation, eleven weeks or after July 16, 1974. The best evidence and the preponderance of the evidence is against her.”

As we construe the trial judge’s remarks, his rejection of plaintiff’s demands was based on a finding of fact that plaintiff did not prove any objective symptoms of injury which continued after June 20, 1974. After carefully reviewing the transcript of the testimony at trial and upon deposition, we conclude that this finding of fact was manifestly erroneous and probably resulted from the application of an incorrect rule of law.

Workmen’s compensation payments may be made “for only such injuries as are proven by competent evidence, or [sic] which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.” (emphasis added) La. R.S. 23:1317. In interpreting the statutory language this Court has indicated that “objective conditions or symptoms” have a broad meaning, including “symptoms of pain, and anguish, such as weakness, pallor, sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition * * *." Frantz v. Schroeder, 184 La. 945, 947,168 So. 110, 111 (1936) (quoting with approval from Manning v. Pomerene, 101 Neb. 127, at 130, 162 N.W. 492, at 493 (1917)), and this Court has consistently held that subjective results which are imputable to the original objective conditions are compensable under law. Tantillo v. Librty Mutual Insurance Company, 315 So.2d 743 (La.1975); Frantz v. Schroeder, supra. Accordingly, the objective conditions or symptoms required by the statute are not limited to symptoms of an injury which can be seen or ascertained by touch. Moreover, there need not be a continued exhibition of objective symptoms to entitle the employee to compensation if the injury complained of is causally connected with the original accident. Tantillo v. Liberty Mutual Insurance Company, supra; Frantz v. Schroeder, supra; Vega v. Higgins Industries, 23 So.2d 661 (La.App.Orl.Cir.1945).

In applying these rules to the evidence in the instant case we find that the Charity Hospital x-ray report of January 9, 1975, and the testimony of Dr. Vogel relative to his physical examination of the plaintiff on February 20, 1975, constitute proof of objective conditions or symptoms emanating from the job related accident. Although the hospital radiologist was unable to positively identify the acute anterior angulation as a fracture of the coccyx, the abnormal position is itself plainly an objective condition or symptom. Similarly, the limited motion and point test sensitivity found by Dr. Vogel constitute objective symptoms as required by the statute. Although the trial judge assumed that the symptoms detected by Dr. Vogel did not result from the accident because they related to the “lumbo sacral spine,” the doctor himself testified without contradiction that the symptoms probably resulted from the plaintiff’s accidental fall at work.

Accordingly, we conclude that the trial judge committed manifest error in failing to award compensation benefits and medical expenses to plaintiff through April 20, 1975. The record adequately supports the decisions below rejecting penalties and attorney’s fees. It is our opinion, however, that the ends of justice require that the case be remanded to the trial court to allow the plaintiff the right to reopen these proceedings at once to prove the duration and estent of continuing disability beyond said date. Cockrell v. Penrod Drilling Co., 214 La. 951, 39 So.2d 429 (1949); Fontenot v. Myers, 93 So.2d 245 (La.App. 1st Cir. 1957). The trial and intermediate appellate courts judgments are set aside and the case is remanded to the court of appeal for rendition of a proper decree consistent with the opinion herein, awarding plaintiff compensation benefits and medical expenses through April 20, 1975 and reserving the right to the plaintiff to reopen the proceedings in district court herein at once to establish any further duration or extent of disablity. All costs are assessed to respondents.

REVERSED AND REMANDED.

DIXON, J., concurs.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Wilton D. MOUTON.
    No. 62414.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      David J. Hebert, Mannero, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, P. Michael Cullen, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

On the afternoon of May 16, 1977 a sixteen-year-old high school girl student was walking from school to her home on Wright Avenue in Jefferson Parish. A man driving an orange Volkswagen hatchback drew up beside her and asked for directions which she was unable to give him. As she was walking away, the man stopped the car and began to honk the horn. When the girl turned around, the man’s genitals were exposed, and he was apparently masturbating. Almost immediately afterward the girl’s boy friend drove up, and she got into his car. At her insistence, the two followed the Volkswagen until they could record its license plate number, and after a few blocks they overtook the other car at an intersection where the girl told the driver that she intended to call the police.

After the incident was reported, Officer Michael Fanning of the Jefferson Parish sheriff’s department discovered that the license plate had been issued to a Wilton D. Mouton at 1144 Scotsdale Drive in Harvey. Subsequent investigation revealed that he had moved from this address about a year before the incident. Fanning then contacted the state police, who sent him a picture of Mouton taken from his driver’s license. On May 31, 1977 Fanning went to the victim’s home and showed her photographs of five different men. She quickly selected the photograph of Mouton taken from the driver’s license.

The following day, June 1, 1977, Officer Fanning arrested Wilton D. Mouton at his home for the crime of indecent behavior with a juvenile, a violation of R.S. 14:81. The defendant was tried on December 15, 1977 and was found guilty as charged. A sentence of six months imprisonment was suspended and the defendant was placed on one year probation and was ordered to complete the program at the Jefferson Parish Mental Health Center. From this conviction and sentence the defendant appeals on the basis of three assignments of error.

Assignment of Error Nos. 1 and 3

By these assignments the defendant argues that the trial judge was in error in finding the defendant guilty. The crux of the argument in each assignment is the apparent inconsistency between the trial judge’s statement that he believed Mouton’s alibi witnesses to be telling the truth and his finding the defendant guilty. The defense argues that such an incongruous result demonstrates that the trial judge applied a standard of proof less stringent than “beyond a reasonable doubt,” required in criminal trials. R.S. 15:271; State v. Ledet, 345 So.2d 474 (La.1977); State v. Slayton, 338 So.2d 694 (La.1976).

The record reveals that the defendant failed to file a motion for a new trial, the appropriate procedural vehicle for raising an evidentiary question. C.Cr.P. 851(1); State v. Winzer, 354 So.2d 533 (La.1978). Even assuming that the defendant had requested a new trial, a denial of a motion for new trial when based merely on the sufficiency of the evidence presents nothing for this court’s review. State v. Edwards, 354 So.2d 1322 (La.1978); State v. Jack, 332 So.2d 464 (La.1976).

However, here the defendant’s allegation is more than a mere recitation of the elements of C.Cr.P. 851(1), for in effect he argues that the trial court made a conclusive factual finding which is completely inconsistent with its decision — that the defendant could not have committed the offense since he was with his friends at the time of the incident but that he was nevertheless guilty. However, we need not decide whether such an inconsistency is reviewable by this court since it is clear that the trial judge did not find the testimony of the alibi witnesses to be accurate, but only that they were testifying in good faith and that they were relating the events of the afternoon in question to the best of their ability. Moreover, it is also clear from the trial judge’s reasons for judgment that he did indeed apply the beyond-a-reasonable-doubt standard in assessing the defendant’s culpability. He stated that the victim’s testimony left the court with no doubt of the defendant’s guilt. State v. Otis, 339 So.2d 343 (La.1976).

These assignments lack merit.

Assignment of Error No. 2

By this assignment the defense argues that the trial court erred in admitting a statement made to Officer Fanning by the defendant after he was arrested. Fanning testified at trial that the defendant told him that he had gone bowling at about 5:30 p. m. on the day of the offense. Although the defendant clearly intended the statement to be exculpatory and adhered to it at trial, he at that time did not mention having gone trawling with friends and relatives earlier in the day, which was part of the alibi he presented at trial. The prosecution placed emphasis on the omission during closing argument:

“Now, I sincerely doubt that they can remember all those times that they remember so specifically. But you would think that a man who was arrested for a crime would remember the first day of trawling season, that they all remember so clearly now; that’s the day.
They remember these times so well, but he didn’t make any allusion to trawling, breaking shrimp heads, anything like that. He talked about how he goes bowling on Monday nights, according to the detective’s testimony.
Sometimes afterwards, he remembered about the trawling season and that he was trawling and brought in several witnesses to say he was trawling.
So, I think there’s reason to disbelieve the defense’s case and really no reason to disbelieve (the victim’s) testimony.”

The defense takes the position that the statement was inadmissible because it was the product of a custodial interrogation which was continued after the defendant made evident his desire to communicate with his attorney. Such questioning is said to violate the standards established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 14 L.Ed.2d 694 (1966), wherein the statement appears that investigating officers must terminate any questioning once the accused has voiced a desire to consult with an attorney. See also, State v. Dominick, 354 So.2d 1316 (La.1978).

Officer Fanning’s testimony, which constitutes the only evidence on this point, was that he immediately placed the defendant under arrest and gave him full Miranda warnings. The defendant then sought and obtained Fanning’s permission to contact his attorney but was unable to do so because his telephone was out of order. At this point the record is unclear concerning the exact sequence of events after the abortive telephone call. Fanning testified that the defendant then began to talk to him, and that it was during this colloquy that Mouton attempted to explain his movements on May 16. According to the officer, the defendant indicated that he understood all his rights and was told that he should not speak to the officer unless he waived his right to an attorney. Officer Fanning also stated that the defendant spoke voluntarily and that he began asking him questions only after the defendant spoke freely and on his own. On the other hand, there is some indication that Fanning initiated the conversation after Mouton tried to call his attorney:

“Q. Did you ask him specifically, ‘Do you waive your rights against self incrimination?’
A. I asked him do you want to speak to me?”

If a person accused of a crime expresses a desire to speak to an attorney, the investigating officers must cease any questioning of the accused until an attorney is present. Miranda v. Arizona, supra; State v. Dominick, supra. Although nothing prevents a person from later changing his mind and waiving that right, State v. Dominick, supra; State v. Peevy, 321 So.2d 324 (La.1975); see also, United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. 1978 en banc); Nash v. Estelle, 560 F.2d 652 (5th Cir. 1977), (en banc rehearing granted, 560 F.2d 660), the prosecution bears a heavy burden to show that he knowingly and willingly waived the right to counsel. State of Louisiana in the Interest of Dino, 359 So.2d 586 (La.1978); State v. Alexander, 328 So.2d 144 (La.1976).

The defense argues that waiver cannot be proved by the state because Mouton felt compelled to answer any questions put to him by Fanning. The defense notes that the defendant unambiguously opted for an attorney’s aid, but that Fanning nevertheless continued asking questions after the attorney could not be reached. The statements used against Mouton were a direct result of Fanning’s questions about his activities during the afternoon of May 16.

Nevertheless, a review of the record convinces us that the trial court’s ruling, finding a waiver of the right to counsel, is supported by the evidence. Fanning told Mouton not to talk to him unless he waived his right to counsel and that anything he said could be used against him in court. Fanning also testified that Mouton had expressed an understanding of his rights and yet continued to speak. Although the defense stresses the compulsive nature of the defendant’s position, an equally plausible conclusion is that Mouton was willing to talk to Fanning once he realized that his phone was out of order. Only moments earlier Mouton had been sufficiently at ease to request counsel, making it unlikely that his will was overborne in such a short time. His desire to attempt to exculpate himself by explaining his movements on the day in question was an error in judgment on his part and is not chargeable to the state.

This assignment is without merit.

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

      . In his reasons for judgment, the trial judge made the following reference to the testimony of Mouton’s witnesses:
      “I listened to the rest of this testimony and the testimony of the accuracy of the time and place. I understand how people will attempt then to put together with accuracy as well as they can, the time and place that these things occurred. And I don’t fault anybody. I’m not considering for a moment, anyone got on my stand and purposely lied; I don’t believe they did. I think each one of them was attempting to testify to the very best of his ability about what happened. But their testimony does not overcome the absolute, positive, direct testimony of this little girl, in what happened, and where it happened and who was the one that did it. She was very straightforwarded, very direct, and left no doubt in the Court’s mind as to the accuracy of her identification. Not only did she identify him once, she identified him twice. ...”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Christopher McALLISTER.
    No. 62429.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Leo J. Berggreen, Stuart Thomson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren Hebert, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Christopher McAllister and David Rachal were charged by grand jury indictment with first degree murder in violation of R.S. 14:30. On June 20, 1977, they were tried jointly. That jury found Rachal guilty of manslaughter but could not reach a verdict as to McAllister. On November 8, 1977, defendant McAllister was again tried for first degree murder and was found guilty of manslaughter. He was then charged under R.S. 15:529.1, adjudged to be a third offender, and sentenced to serve thirty-two years. On this appeal he relies on nine assignments of error for reversal of his conviction and sentence.

This prosecution resulted from events which transpired on the evening of December 27, 1976. David Rachal and defendant were at the Rack Lounge in Baton Rouge when James Fitzhugh, Jr. allegedly made disparaging remarks about Rachal’s wife. Rachal, defendant McAllister and a third person left the lounge and drove to defendant’s car where Rachal and defendant got into the defendant’s car and emerged shortly thereafter with a gun. Together the three men returned to the Rack Lounge. When Fitzhugh saw Rachal re-enter the bar, he again made disparaging remarks to Rachal. Rachal then shot Fitzhugh several times, killing him. The state proceeded against the defendant on the theory that he was a principal who aided, abetted, counseled or procured David Rachal to commit a homicide.

ASSIGNMENT OF ERROR NO. 1

By this assignment defendant contends that the trial court erred in denying his motion to quash. In brief, he argues that because David Rachal, the actual perpetrator of the homicide was found guilty of manslaughter and was by that verdict acquitted of first degree murder, he as a principal could be charged with no higher degree of homicide than manslaughter.

To support his argument, defendant relies primarily on State v. St. Philip, 169 La. 468, 125 So. 451 (1929) a case decided before Louisiana explicitly abolished the common law distinctions between principals and accessories before the fact. That case held that the prior acquittal of the person charged with the actual burning of a home prevented the state from charging a second defendant with aiding, counseling, or procuring the arson. Defendant argues that under St. Philip the acquittal of David Ra-chal of first degree murder prevents the state from charging him, McAllister, with first degree murder and that the only crime for which he could be tried as a principal is manslaughter.

Although the result reached in St. Philip seems to support defendant’s, argument, the holding rests on common law principles no longer accepted in Louisiana. Prior to Acts 1932, No. 120, §§ 1, 2, Louisiana adhered to the distinction made by common law between principals and accessories before the fact. Those who personally committed a felony and those present who aided, assisted, or encouraged the commission of the felony were classified as principals while those who assisted or encouraged but were not present were accessories before the fact. State v. Maxent, 10 La.Ann. 743 (1855); State v. Haines, 51 La.Ann. 731, 25 So. 372 (1899).

An important procedural rule developed from this distinction. An accessory before the fact could not be convicted unless the principal was found guilty before the accessory’s trial or was convicted in a joint trial with the accessory. An accessory likewise could not be tried in advance of a principal even if the principal were beyond prosecution. The prosecution of a principal who was present and who aided and abetted the crime was not similarly limited. Such a principal could be tried and convicted even though the actual perpetrator had not yet been prosecuted. Indeed even if the actual perpetrator were acquitted, the principal could be tried and convicted. See Reporter’s Comment to R.S. 14:24; LaFave and Scott, Criminal Law, § 63, at 500 (Hornbook ed. 1972).

Louisiana’s first legislative attempts to eliminate the common law distinctions were Section 972 of the Revised Statutes of 1870 which provided identical punishments for accessories before the fact and principals, and Section 1058 of the Revised Statutes of 1870 which allowed accessories to be tried irrespective of whether the principal was or would be brought to justice. See State v. Accardo, 129 La. 666, 56 So. 631 (1911). Subsequently, Article 238 of the Code of Criminal Procedure expressly provided that accessories before the fact could be indicted as principals. As a result of the Court’s declaring Article 238 unconstitutional in State v. Rodosta, 173 La. 623, 138 So. 124 (1931), the legislature by Acts 1932, No. 120, §§ 1, 2 expressly abolished all distinctions between accessories and principals.

State v. St. Philip was decided in 1928 when accessories before the fact could be indicted as principals but before the legislature explicitly abolished the distinctions between the two classes. The holding in St. Philip, that the defendant could not be charged with a crime for which the actual perpetrator had been acquitted, results from the fact that the defendant was an accessory before the fact who was indicted as a principal and who, as an accessory before the fact, was entitled to the procedural limitation requiring the prior conviction of the actual perpetrator.

By Acts 1932, No. 120 §§ 1, 2, the Louisiana legislature abolished all distinctions between accessories before the fact and principals to provide that “all persons concerned in the commission of a crime . '. . are principals.” See R.S. 14:24. The procedural rules which followed these classifications are likewise eliminated by the statute. See State v. Farley, 105 Ariz. 526, 468 P.2d 379 (1970) and People v. Smith, 271 Mich. 553, 260 N.W. 911 (1935) in which statutes nearly identical to R.S. 14:24 have been held to allow conviction of a principal when the actual perpetrator of the crime has been acquitted. Consequently, David Rachal’s acquittal of first degree murder implicit in his conviction for manslaughter does not prevent the defendant’s being charged with the crime of first degree murder.

In a related argument, defendant contends that because one who aids and abets the commission of a crime is to be held equally as guilty as the perpetrator, he can not be charged with a higher degree of crime than that of which David Rachal was convicted. His crime, he argues, can only be as great as that of the actual perpetrator.

The fact that the jury at the first trial found that Rachal killed Fitzhugh in the “heat of passion” does not prevent the state from charging defendant with first degree murder. One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of crime depending on the mental element proved at trial. Oaks v. Patterson, 278 F.Supp. 703 (D.Colo.1968). The actual perpetrator of the crime may act in hot blood, in which case he would be guilty of manslaughter, while the instigator may act cooly and thus be guilty of murder.' See Wharton’s Criminal Law §§ 269, 276 (12 ed.). In State v. Peterson, 290 So.2d 307 (La.1974), this Court held that manslaughter was a responsive verdict to a charge of murder and observed that the presence of passion is “in the nature of a defense.” While “passion” may be a mitigating element for the actual perpetrator and serve as a defense to first degree murder for him, it may not be asserted by a principal who lacks the requisite mitigating element. He may be charged and even convicted of mur-dSr. In this case, of course, defendant, like Rachal in the earlier trial, was convicted only of manslaughter.

The trial court did not err in denying defendant’s motion to quash the first degree murder charge.

ASSIGNMENT OF ERROR NO. 2

Defendant submits that the trial court erred in denying his motion to quash on the grounds that R.S. 14:24 is unconstitutional. He claims that it is vague and overbroad, and denies equal protection and due process.

Louisiana Revised Statute 14:24 provides:

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

Defendant’s vagueness and overbreadth claim results from a simple misreading of the statute. He claims that the statute allows the prosecution of anyone “concerned” with a crime, meaning anyone “affected, disturbed, troubled or interested” by a crime. This argument ignores the fact that the statute qualifies “concerned in the commission of a crime” with the following language: “. . . whether [the principals] directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime . . . .” A challenge for overbreadth and vagueness therefore lacks merit. R.S. 14:24 is not a statute whose meaning “ ‘men of common intelligence must necessarily guess at . and differ as to its application . . .’” Connick v. Lucky Pierre’s et al., 331 So.2d 431 (La.1976).

Defendant next claims that the statute denies equal protection in that by virtue of the content of R.S. 14:24 and R.S. 14:30 a jury will be caused to look at the specific intent of the person who directly committed the act constituting the offense but not the specific intent of one accused of aiding, abetting, counseling or procuring. He complains specifically that R.S. 14:24 does not on its face require specific intent. This of course is true, but the argument ignores the fact that a person is not charged with violating R.S. 14:24. That statute simply defines principals (including both the perpetrator and the person who aids, abets, counsels or procures) who may be charged with committing a substantive crime, in this case R.S. 14:30. That latter statute (with which this defendant was charged) requires proof of specific intent, and such a charge was in fact read to the jury. There is no merit to defendant’s equal protection and due process arguments.

The assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 3, 4, 5, 6, 7, 8 AND 9

The remaining assignments of error we determine are without merit. Defendant’s complaint that a juror or jurors saw him handcuffed to his chief witness and other prisoners all of whom (except defendant) were wearing prison clothes is non-meritorious in light of his failure to make a record demonstrating the actual occurrence and on the strength thereof to convince us that he was substantially prejudiced. (Assignment of Error No. 3).

Defendant was neither surprised nor prejudiced by introduction of a questionably inculpatory statement without the requisite Article 768 notice (defendant’s statement “what T-shirt?” when a deputy asked him for his T-shirt, had been introduced at defendant’s prior trial). State v. Qualls, 353 So.2d 978 (La.1977). (Assignment of Error No. 4).

The witness Richard Lewis’ prior testimony which the trial judge refused to let defendant employ in an effort at impeachment related to irrelevant matters, impermissible for purpose of impeachment. R.S. 15:494 State v. Gibbs, 355 So.2d 1299 (La.1978); State v. Robinson, 342 So.2d 183 (La.1977). (Assignment of Error No. 5).

Defendant’s motion for directed verdict at the close of the state’s case was properly denied. Louisiana Code of Criminal Procedure article 778 as amended in 1975 bars directed verdicts in jury trials. Even if the motion for directed verdict were available it could not have been properly granted for there indeed was some evidence of defendant’s guilt. (Assignment of Error No. 6).

Manslaughter is a responsive verdict to a charge of murder. La.Code Crim.Pro. art. 814. Passion is not an element of manslaughter foreign to first degree murder, “. . . rather, it is a factor which exhibits a degree of culpability less than that present when the homicide is committed without passion caused by provocation.” State v. Peterson, supra. Thus the trial court was correct in denying defendant’s motion for new trial based on a contrary argument. (Assignment of Error No. 7).

Because a multiple offender proceeding is a status rather than a criminal proceeding, the right to a jury trial does not apply as a matter of Louisiana Constitutional law. State v. Williams, 326 So.2d 815 (La.1976); State v. Maduell, 326 So.2d 820 (La.1976). Nor is the right applicable as a matter of federal constitutional law. Levell v. Simpson, 142 Kan. 892, 52 P.2d 372, appeal dismissed for want of a substantial federal question, 297 U.S. 695, 56 S.Ct. 503, 80 L.Ed. 986, reh. den. 297 U.S. 728, 56 S.Ct. 592, 80 L.Ed. 1011 (1936). Defendant is not denied the right to confrontation by R.S. 15:529.1 because he is entitled to question the accuracy of any documents and cross examine any witness presented by the state at the proceedings. That right was afforded defendant in this case. Defendant’s Assignment of Error No. 8 is thus without merit.

Defendant’s argument that R.S. 15:529.1 is unconstitutional for the asserted reasons is also without merit. (Assignment of Error No. 9).

Decree

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

AFFIRMED.

      . The state and the defense stipulated that James Fitzhugh died as a result of massive hemorrhage and trauma caused by multiple gunshot wounds. At trial the state produced various witnesses who testified that David Ra-chal became quite upset with comments that Fitzhugh made about his wife and that Rachal stated that he wanted to get a gun to shoot Fitzhugh. Defendant shortly afterwards started a fight with another patron in the bar and was asked to leave. Obviously angry he shouted “Come on, let’s get the gun and do it” and left with Rachal and several others. They drove around for a while, stopped at defendant’s car and went back to the lounge. Rachal then had a gun which according to witnesses looked like the defendant’s. When the defendant and Rachal re-entered the lounge, Rachal walked up to Fitzhugh and shot him. This testimony indicated that Rachal was angry and wanted to kill Fitzhugh and that defendant made it possible by getting a gun for Rachal. Evidence was given to establish that someone had been killed and from which intent could be inferred.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Ronald S. MONROE.
    No. 62459.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Arthur A. Lemann, III, New Orleans, George A. Blair, III, Student Practitioner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Fred P. Harper, Robert Barnard, Asst. Dist. Attys., for plaintiff-ap-pellee.
   MARCUS, Justice.

Ronald S. Monroe was indicted by the grand jury for the first degree murder of Lenora E. Collins in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt, and the jury unanimously recommended that the sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recom-. mendation of the jury. On appeal, defendant relies on twenty-one assignments of error for reversal of his conviction and sentence. Finding merit in one of the assigned errors, we need not consider the others, except Assignment of Error No. 17 which requires comment in view of the remand for a new trial.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his challenge for cause of prospective juror, Mr. Nick Noriea. He argues that because of Mr. Noriea’s employment as an assistant district attorney in the same office as the assistant district attorneys who were prosecuting the case against him, it was reasonable to conclude that this relationship would influence Mr. Noriea in arriving at a verdict. Defendant further argues that, as a result of this erroneous ruling, he was compelled to exercise one of his peremptory challenges to excuse Mr. Noriea, thereby depriving him of one of his twelve peremptory challenges.

During voir dire, defendant questioned Mr. Noriea, a prospective juror, and established that Mr. Noriea was then employed as an assistant district attorney (assigned to the Career Criminal Bureau) in the office of the district attorney who was prosecuting the case against him. He was drawing pay in that capacity at the time. Defense counsel then asked Mr. Noriea whether “in spite of that, you can sit here today and be a fair and impartial juror?” Mr. Noriea responded in the affirmative. Whereupon, the defense counsel moved that Mr. Noriea be excused for cause under La.Code Crim.P. art. 797(3). After argument, the trial judge overruled defendant’s motion, finding that “it is not reasonable to conclude that the relationship would influence the juror at arriving at a verdict because he has taken an oath, answered the questions truthfully; he has categorically given the answer without equivocation that it would in no wise affect him.” The trial judge further reasoned that Mr. Noriea stated that he knew nothing about this particular case. Defendant objected to the ruling of the trial judge.

La.Code Crim.P. art. 797(3) provides:

The state or the defendant may challenge a juror for cause on the ground that:
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict; .

La.Code Crim.P. art. 800 provides in pertinent part:

A defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges shall have been exhausted before the completion of the panel.

Where an accused has exhausted all of his peremptory challenges before completion of the panel, he is entitled to complain on appeal of a ruling refusing to maintain a challenge for cause made by him. State v. Qualls, 353 So.2d 978 (La.1977); State v. Ballard, 337 So.2d 481 (La.1976). The trial judge is vested with broad discretion in ruling on a challenge for cause which ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Drew, 360 So.2d 500 (La.1978). In State v. Breedlove, 199 La. 965, 7 So.2d 221 (1942), this court held that three requirements were necessary before the ruling of a trial judge refusing to sustain a defendant’s challenge for cause constituted reversible error: (1) an erroneous ruling refusing to sustain the defendant’s challenge for cause; (2) exhaustion of all of the defendant’s peremptory challenges; and (3) the defendant was forced to accept an obnoxious juror, either the one that should have been excused for cause, or, if the juror was peremptorily challenged, a subsequent juror that defendant would have peremptorily challenged but for the fact that he had already exhausted his peremptory challenges. Chief Justice O’Neill strongly dissented.

The Louisiana Code of Criminal Procedure (Acts 1966, No. 310) became effective January 1, 1967. Article 800 was intended, as the Official Revision Comment notes, to change the law by legislatively overruling the Breedlove decision and adopting the dissenting opinion of Chief Justice O’Neill. Thus, defendant now need only show two things to obtain reversible error: (1) that the trial judge erred in refusing to sustain a challenge for cause by the defendant; and (2) that the defendant exhausted all of his peremptory challenges. He need no longer make an additional showing of injury resulting from the court’s action by forcing him to accept an obnoxious juror. La.Const. art. 1, § 17 provides that the accused has a right to challenge jurors peremptorily; the number of challenges to be fixed by law. La.Code Crim.P. art. 799 provides that in trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges. Therefore, an erroneous ruling of a trial judge which deprives a defendant of one of his peremptory challenges constitutes a substantial violation of a constitutional or statutory right requiring reversal of his conviction and sentence. La.Code Crim.P. art. 921.

In the instant case, defendant’s peremptory challenges were exhausted before completion of the panel; therefore, his objection to the ruling refusing to sustain his challenge for cause is properly before us. During voir dire, Mr. Noriea stated that he was at that time employed as an assistant district attorney in the same office as the assistant district attorneys who were prosecuting the case against defendant. Clearly, the relationship between the prospective juror, Mr. Noriea, and the district attorney was such that it is reasonable to conclude that it would influence the juror in arriving at a verdict. La.Code Crim.P. art. 797(3). Hence, we find that the trial judge abused his discretion in refusing to sustain defendant’s challenge of Mr. Noriea for cause. As a result of this erroneous ruling, defendant exercised a peremptory challenge on Mr. Noriea, thereby depriving him of one of the twelve peremptory challenges to which he is entitled by law. This constituted a substantial violation of a constitutional or statutory right. Accordingly, we must reverse.

Under Assignment of Error No. 17, defendant contends the trial judge erred in refusing to quash the indictment charging him with first degree murder.

Prior to trial, defendant filed a motion for a bill of particulars requesting, inter alia, information as to whether the state intended to seek the death penalty and, if so, under which aggravating circumstances the state intended to proceed. The state responded in the affirmative and listed the following aggravating circumstances: “1) Aggravated burglary; 2) Intent to kill more than one person; 3) Due to brutal crime.” The jury, in unanimously recommending that the sentence of death be imposed, found the following statutory aggravating circumstances existed: “(a) The offender was engaged in the perpetration or attempted perpetration of aggravated burglary; (d) The offender knowingly created a risk of death or great bodily harm to more than one person; (g) The offence (sic) was committed in an especially heinous, atrocious or cruel manner.”

In State v. Payton, 361 So.2d 866 (La.1978), we held that La.Code Crim.P. art. 905.4(c), (f) and (g) are to be excluded from the definition of first degree murder. However, we noted that the jury shall consider all seven aggravating circumstances listed in La.Code Crim.P. art. 905.4 during the sentencing hearing. In other words, the second phase of the bifurcated trial, the procedure for a capital sentencing hearing, remains the same as it was originally enacted.

Since we are reversing the conviction and sentence in the instant case and remanding the case for a new trial, the state should consider amending its bill of particulars in view of this court’s decision in State v. Payton, supra.

DECREE

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

      . Defendant has neither briefed nor argued Assignments of Error Nos. 2, 3, 5, 7 through 16, inclusive, 18, 20 and 21. Hence, we consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.Code Crim.P. art. 905.4 provides in pertinent part:
      The following shall be considered aggravating circumstances:

      (c) The offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping;

      (f) The offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony;
      (g) The offense was committed in an especially heinous, atrocious or cruel manner.


text:
    STATE of Louisiana v. Michael MATTHEWS.
    No. 62475.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      George A. Blair, III, Student Practitioner, William J. O’Hara, III, Supervising Atty., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William Maxwell, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   DENNIS, Justice.

As a result of being stopped for questioning by police officers at an airport, defendant Michael Matthews was charged with possession with intent to distribute PCP, La.R.S. 40:968. Defendant moved to suppress the drugs which were seized as evidence from his suitcase immediately following the investigatory stop. After an evi-dentiary hearing the district court denied defendant’s motion. Defendant waived his right to trial by jury, and by stipulation his case was tried by a judge on the basis of the suppression hearing evidence and police officers’ reports. The defendant was found guilty as charged and sentenced to serve five years at hard labor.

On appeal, the defendant’s single assignment of error specifies, as just cause for reversal of his conviction, the trial court’s denial of his motion to suppress the drugs as unconstitutionally seized evidence.

At approximately 8:10 a.m. on September 27,1977, the defendant flew into New Orleans International Airport aboard Delta Airlines flight number 1080 from Los Angeles. Two plainclothes officers, Sergeant Schwabe of the Jefferson Parish Sheriff's Office, Narcotics Division, and Agent Raymond Eagen of the Drug Enforcement Administration, were assigned to the airport on that morning. The officers were carefully watching passengers disembarking from certain flights to detect possible drug traffic at the airport. They had received information describing a number of persons who were suspected of transporting heroin into the New Orleans area from the West Coast. Because defendant’s physical characteristics were somewhat similar to one of the suspected couriers, i. e., defendant was a young black man of average weight and height, the officers decided to place him under surveillance.

The officers followed the defendant through the airport terminal. They testified that the defendant acted “nervous.” At first he lagged behind the other deplaning passengers, but upon seeing a uniformed policeman he quickly stepped up into the crowd. Later he repeated this procedure upon seeing the two plainclothesmen following him. Several times while traversing the terminal he looked back in the opposite direction from which he was walking. When the defendant reached the baggage claim area, the officers noticed that he picked up a single piece of luggage and exited the area without surrendering his claim check. At this point the officers stopped the defendant and asked his name. The defendant replied that his name was “Darryl Pourray,” but he was unable to produce any identification. The officers then asked the defendant if he had an airline ticket. The defendant denied having a ticket, but the officers pointed out that a ticket envelope was protruding from his coat pocket. When he surrendered it at their request, the officers found that the ticket holder was listed as “Michael Matthews.” The defendant was then advised of his rights and the officers escorted him to the Kenner Police room at the airport.

The officers informed the defendant that they were looking for drug couriers from the West Coast, and they again requested identification. The defendant said that he had a wallet in his suitcase. When he opened the suitcase to retrieve his wallet, the officers noticed a plastic bag containing numerous foil wrapped packages. The officers asked defendant what the bag was, but he replied that he did not see any bag. The officers seized the bag and upon examining the contents discovered cigarettes with a strong chemical odor, suggesting the presence of PCP. The defendant was then formally placed under arrest.

The prohibitions against unreasonable searches and seizures guaranteed by the Fourth Amendment and Article I, § 5 of the 1974 Louisiana Constitution are enforced by exclusionary rules which bar from use in a criminal prosecution evidence obtained in violation of these safeguards. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); State v. Tassin, 343 So.2d 681 (La.1977); State v. Paciera, 290 So.2d 681 (La.1974). Except in certain carefully defined classes of cases, a search of private property without consent is “unreasonable” unless it has been authorized by a valid search warrant. Camara v. Municipal Ct., 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Accordingly, non-consensual searches conducted outside the judicial process are per se unreasonable — subject only to a few specifically established and well-delineated exceptions, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the applicability of which the state must bear the burden of proving in order to defeat a defendant’s motion to suppress evidence obtained by such a warrantless search. State v. Franklin, 353 So.2d 1315 (La.1978). Since the evidence is undisputed in the instant case that the officers stopped Matthews for investigation without either a warrant or his consent, it follows that the State was required to prove at the motion to suppress hearing that the officers’ conduct in obtaining the evidence fell within one of the carefully defined classes of cases in which a governmental search is permitted without a valid warrant.

Every person’s right to be secure in his person against unreasonable searches, seizures or invasions of privacy includes the right to be free from unreasonable detention by a police officer. Before a police officer may stop a person for investigatory purposes he must reasonably suspect that the person has committed or is about to commit a criminal offense. In justifying the particular intrusion the police officer must be able to point to specific and articu-lable acts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. If the detaining officer does not have objectively reasonable cause to suspect the person of criminal activity, evidence seized or otherwise obtained as a direct result of the detention cannot constitutionally be admitted into evidence against him at trial. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Washington, 364 So.2d 958 (La.1978), No. 62,254; State v. Davis, 359 So.2d 986 (La.1978); State v. Smith, 347 So.2d 1127 (La.1977); La.C.Cr.P. art. 215.1.

Based on these authorities, this Court, at our last sitting, declared invalid a similar investigatory stop at the same airport. State v. Washington, supra. The defendant in that case disembarked from a flight originating in Los Angeles, appeared nervous, made a telephone call and approached the baggage counter without claiming his baggage. We held that these actions did not constitute grounds to justify an investigatory stop because the passenger’s activity was equally consistent with innocent behavior and did not amount to specific and articula-ble facts which, taken together with rational inferences therefrom, would furnish objective grounds for the officers to suspect the individual of unlawful activity.

The instant case is not distinguishable from State v. Washington, supra, in any legally relevant respect. At the time the officers made the initial stop in the present case, they were aware that the defendant had arrived on a flight from Los Angeles; that he appeared nervous and evasive; that he had only one piece of luggage; and that he had come out of the baggage claim area without surrendering his claim check. These circumstances alone do not give rise to a reasonable suspicion that criminal activity is afoot; all of these activities are equally consistent with innocent behavior. See, e. g., State v. Davis, supra; State v. Smith, supra; State v. Kinneman, 337 So.2d 441 (La.1978); State v. Truss, 317 So.2d 177 (La.1975); State v. Saia, 302 So.2d 869 (La.1974). The only possible basis for distinguishing the present case from State v. Washington, supra, is the fact that the officers in the present case claimed to have an informant’s tip describing the defendant as a drug courier. Accordingly, we must examine in some detail the nature and content of this information.

The tip upon which the state relies in this case was given to the investigating officers by an agent within the Intelligence Unit of the Drug Enforcement Administration. The record does not disclose whether the agent’s information was based on personal observation or an informant’s tip, whether the source of the information, if other than the agent’s observations, was credible, or whether any underlying facts were given to establish the reliability of the information. Even more significant, however, is the content of the description given. The officers claimed that they had a number of descriptions of possible couriers who would be bringing heroin into the New Orleans area from the West Coast. One of the officers admitted that the descriptions were very vague and general. Officer Eagen testified that “[a]ll of [the suspect couriers] were black. All of them were young males. We had two black females.” Officer Eagen explained that they followed the defendant because:

“He fit the general description. — And fit the general height/weight, and description that we had, which is average. I don’t remember exactly what they were but it wasn’t anything spectacular. It wasn’t a six foot five or five foot five or whatever.”

Officer Schwabe testified that the description was of a thin black male about S' 8" tall. The record reveals that the defendant was, in fact, a twenty year old black male who weighed 110 pounds and was 5' 5" tall at the time of the events described herein. The tip did not provide the suspect’s name; it did not state which airline the suspect would arrive on; it did not disclose when the suspect would arrive; it did not describe his clothes or luggage. The tip, which purported to describe an individual heroin courier, would also describe virtually every young black person arriving from the West Coast. Such a vague and inclusive description would have had only marginal probative value even if it had been received from a reliable informant who had supplied underlying circumstances to substantiate the information.

The investigating officers did not have reasonable cause to suspect Michael Matthews of unlawful activity. At the time the stop was made, the officers knew the defendant had arrived on a flight from Los Angeles; that he appeared nervous and evasive; that he did not surrender his baggage claim check when he picked up his suitcase. Additionally, the officers had received a very vague description of a suspected heroin courier. Insofar as the record discloses, the investigating officers were not aware of whether the original source of the information was a credible person or whether the information itself was reliable. Accordingly, the specific and articulable facts known to the officers before the investigatory stop, together with the rational inferences which might be drawn from those facts, did not warrant their intrusion upon Michael Matthews’ right to be secure in his person against an invasion of his privacy.

Because the initial stop was defective, the information obtained thereby could not be considered by the officers in finding probable cause to arrest. The PCP was discovered in the defendant’s suitcase as a direct result of the unlawful detention, and therefore must be suppressed as evidence.

The defendant’s conviction and sentence are reversed, the motion to suppress is granted, and the case is remanded for a new trial consistent with the laws and views herein expressed.

REVERSED AND REMANDED.

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

      . These first three circumstances, arrival from a drug source city, nervousness, and limited luggage, are commonly cited as elements of a drug courier “profile”. However, the satisfaction of a drug courier “profile” does not furnish reasonable cause to detain a person for questioning. State v. Washington, supra; United States v. Pope, 561 F.2d 663 (6th Cir. 1977); United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977).

      . The state has not elaborated on the significance of the defendant’s failure to surrender his claim check. Such an action creates very little, if any, inference of the defendant’s involvement in any past, present, or future criminal activity.


author: SUMMERS, Justice. TATE, Justice,

text:
    STATE of Louisiana ex rel. Joseph GOINER v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62497.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Thomas Chester, Asst. Dist. Atty., for defendant-respondent.
    Walter Sentenn, Robert Barnard, New Orleans,. Orleans Indigent Defender Program, for plaintiff-relator.
   SUMMERS, Justice.

Defendant Joseph Goiner was charged on August 26, 1977 with the August 19, 1977 simple burglary of the building and structure No. 2001 St. Bernard Avenue, belonging to one Julius Kimbrough with intent to commit a theft therein. At the time of the commission of this offense the applicable and effective provision of law was Subsection C of Section 571.3 of Title 15 of the Revised Statutes, which provided:

“No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of first or second degree murder; manslaughter; aggravated battery; aggravated, forcible or simple rape; aggravated kidnapping; aggravated or simple burglary; armed or simple robbery; any violation of R.S. 14:67 which is a felony; any violation of R.S. 14:95, R.S. 14:95.1, or R.S. 40:1751, et seq. which is a felony; any violation of the Louisiana Uniform Controlled Dangerous Substances Law which is a felony; or any felony defined as an attempt to commit one of the aforementioned crimes and who has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1, prior to or on September 9,1977, shall be entitled to diminution of sentence for good behavior under this Part, if so ordered by the sentencing court.”

This statute made entitlement of habitual offenders to diminution of sentence for good behavior discretionary with the sentencing court.

On October 10,1977 Goiner entered a plea of guilty as charged, at which time the trial judge sentenced him to serve three years imprisonment in the custody of the Director of the Department of Corrections, giving credit for time served.

Thereafter Goiner was charged as a multiple offender and on November 14, 1977, pled guilty to that charge; whereupon, the court vacated the sentence of three years previously imposed on October 10, 1977 and resentenced petitioner as a multiple offender to three years imprisonment.

In the meantime the Legislature enacted Act 633 of 1977 to amend and reenact Subsection C and to repeal Subsection D of Section 571.3 of Title 15 of the Revised Statutes to make mandatory, instead of discretionary with the sentencing court, the prohibition against diminution of sentence for good behavior with respect to inmates convicted of certain crimes, including simple burglary, and sentenced as habitual offenders.

Subsection C(2) of Section 571.3 as thus amended provided that no inmate so convicted

“and who has been sentenced as a habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 after September 9, 1977 shall be entitled to a diminution of sentence for good behavior under this Part.”

The effective date of Act 633 of 1977 is September 9, 1977. The effect of Subsection C(2) was to mandate denial of entitlement to diminution of sentence to all habitual offenders sentenced after September 9, 1977 regardless of the date of the commission of the offense. The Act purports to apply to Goiner’s November 14, 1977 sentence as an habitual offender.

On April 6, 1978 Goiner filed an application for a writ of habeas corpus in the trial court contending that the correction officials had erroneously placed him under the provisions of Act 633, of 1977 because he was sentenced on November 14, 1977, after enactment of Act 633 of 1977. This, he contends, would deprive him of “good time” to which he was entitled under the law as it existed at the time of the commission of the offense on August 19, 1977.

The trial judge denied Goiner’s application stating that Act 633 of 1977 was procedural, not substantive, and therefore its retroactive application was permissible in this case.

In a case without significant difference, insofar as the principles are concerned, this Court rejected the contention that these diminution of sentence statutes for good behavior could retroactively alter the situation to the prejudice of the rights of the party convicted. In State v. Curtis, 363 So.2d 1375 (La.1978) this Court, on the basis of the proscriptions applicable to the ex post facto provisions of the United States and Louisiana Constitutions, held:

“That the change in the law affecting the opportunity to earn a diminished sentence did not deprive a defendant of any vested right to good time does not alter the fact that the statute applies a new punitive measure to a crime already consummated to the detriment or material disadvantage of the wrongdoer . . . and it has the effect of making the standard of punishment “more onerous” through its effect on release eligibility. . . .”

For the reasons assigned, the classification of Goiner’s sentence as without benefit of diminution of sentence for good behavior by officials of the Department of Corrections is improper at this time, and the case is remanded to the trial court for resentenc-ing under the discretionary authority vested in the trial judge by Section 571.3(C)(1) of Title 15 of the Revised Statutes, in effect at the time of the commission of the offense on August 19, 1977. In particular, the sentence shall order whether, in his discretion, the trial judge considers Goiner entitled to diminution of sentence for good behavior.

DIXON, J., concurs.

TATE, J., assigns concurring reasons.

SANDERS, C. J., dissents, adhering to his dissent in State v. Curtis, La., 368 So.2d 1375 (1978).

MARCUS, J., dissents, adhering to his dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

TATE, Justice,

concurring.

The majority has correctly decided the principles applicable to the use of good-time statutes enacted after the date of the offense.

Under the arguments made before us, the majority does not reach the substantial additional issue: that the plea bargain was conditioned upon the defendant not receiving a greater sentence by any multiple-billing following his original plea of guilty. If indeed that was the plea bargain, then in my opinion clearly the trial court is without authority to exercise any discretion to withhold good-time availability upon the enhanced punishment permissible by virtue of the multiple-billing.


text:
    STATE of Louisiana v. Michael S. LEWIS.
    No. 62562.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Michael S. O’Brien, Student Practitioner, Loyola Law School Clinic, William J. O’Hara, III, New Orleans, Supervising Atty., for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Madeline Hebert, Asst. Dist.- Atty., New Orleans, for plaintiff-ap-pellee.
   TATE, Justice.

The defendant pleaded guilty to attempted armed robbery, La.R.S. 14:27, 64, and was sentenced, as a second offender, La. R.S. 15:529.1, to a sentence of 25 years at hard labor.

The principal issue presented by his appeal is raised by his Assignments of Error 1 and 2. They complain of the trial court’s refusal to permit him to withdraw his plea of guilty. The defendant principally contends that his plea was not knowing because he was not aware of the enhanced sentence which might result from his multiple-offender status.

Context Facts

The defendant pleaded guilty to the attempted armed robbery charges, with the understanding that he would receive a sentence of between three and ten years, depending on what his pre-sentence investigation report showed. However, by consultations between his attorney and himself, he also had been informed that this potential sentence assumed that he had not been convicted of a prior felony.

The trial court had made no commitment with regard to any enhanced sentence which might result if the accused was in fact a multiple offender. The policy of the prosecutor in the parish, as reflected by the record, is to multiple-bill defendants who are subject to enhanced sentences because of prior felony convictions.

When the pre-sentence report revealed three prior convictions, the court so informed the defendant at the time of original sentencing. The colloquy noted a 1971 conviction of forgery (with 18 months suspended sentence), a 1972 conviction of unauthorized use of a vehicle (with thirty-six months suspended sentence), and a 1976 Louisiana conviction of “felony theft” (which resulted in imprisonment at a parish farm for one year).

At this sentencing hearing, the defendant contended that the Louisiana conviction was for a misdemeanor (“unauthorized use”). The prosecutor stated that the state had obtained confirmation that the conviction was for a felony. The trial court informed the accused that, if the conviction was for a felony the accused could be multiple billed as a multiple offender; but if it were for a misdemeanor, his punishment could not be enhanced thereby.

The defendant then moved to withdraw his guilty plea. The trial court denied the motion, stating that the only reason the accused wished to do so was that the court had found out that he was a multiple offender and thus might be sentenced as a multiple offender to a minimum sentence of 16% years. The court sentenced the accused to ten years imprisonment at hard labor.

The state then billed him as a second-offender. Overruling the accused’s motion to quash the multiple-offender bill and his reiterated motion to withdraw his plea of guilty (upon which an evidentiary hearing was given), the trial court vacated the previous ten-year sentence and re-sentenced the defendant to twenty-five years.

The Withdrawal of the Guilty Plea

The defendant’s motion to withdraw his plea of guilty raises two principal contentions: (1) that the plea of guilty was not an informed and willing one, because the accused was not made fully aware of the multiple-offender consequences of his plea at the time of the Boykin examination when his plea was taken; and (2) that his plea was not knowing and voluntary, because he had entered it under the mistake of fact that his 1976 conviction was for a misdemeanor (instead of for a felony) and thus did not subject him to the possibility of a sentence enhanced beyond the ten years agreed upon if it was a first offense.

As to (1), there is no requirement that the trial judge formally inform an accused prior to his plea of guilty of all of the possible consequences of his plea, in addition to the rights specifically waived by the plea and the potential length of the sentence to be imposed. State v. Jackson, 362 So.2d 1082 (La.1978); State v. Hoffman, 345 So.2d 1 (La.1977). However, if the defendant is misled as to the length of his sentence or as to the intended institution of multiple-offender proceedings after his plea, then his plea should be vacated upon appropriate motion filed by him. State ex rel. Clark v. Martillo, 352 So.2d 223 (La.1977); State v. Baudoin, 334 So.2d 186 (La.1976).

Here, in fact, through his attorney the accused was totally aware that he could be sentenced as a multiple offender if any one of his prior convictions was for a felony. His plea of guilty is not invalidated because the trial court did not formally so inform him at the time his plea was taken.

As to (2) — his contention that his plea was not voluntary and informed because made under a mistake of fact — , a closer issue is presented.

At the evidentiary hearing, the accused and his former attorney confirmed the accused’s statement to the trial court at the time of sentencing: that the accused had disclosed to his counsel the 1976 conviction and had discussed its possible effect with regard to multiple-offender enhanced punishment. In the pre-plea discussion with his attorney, the accused had insisted that the sentence was for unauthorized use of a movable (a misdemeanor), the charge at the time he was arrested — despite counsel’s pointing out to him that the 18-month sentence received indicated a more substantial offense (since six months was the maximum for the misdemeanor).

The evidence is open to the construction that the defendant genuinely believed that the 1976 conviction was for a misdemeanor rather than a theft. On the other hand, it is also open to the construction that the accused hoped that the felony nature of the crime for which convicted (the P.B.I. rap sheet showed only that he had been arrested for a misdemeanor at the time) would be overlooked, despite his own undisclosed knowledge of its true classification.

In either event, we are convinced that the accused was fully aware of the possibility that his 1976 conviction might be character-izable as a felony, even though he insisted to his attorney that it was for a misdemean- or when his attorney questioned this assumption. Nevertheless, the accused adamantly refused to acknowledge this ques-tionability of the misdemeanor nature of the conviction (or at least to secure definite verification before entering the plea), until at the sentencing hearing he was informed that the state and trial court had indeed learned of this prior felony.

We are unwilling to hold that this self-maintained certainty, if genuine, must have the effect of making his plea of guilty uninformed or involuntary. We cannot say, under all of the circumstances, that the trial court was arbitrary or abused its discretion when it refused to allow the defendant to withdraw his plea of guilty as authorized by La.C.Cr.P. art. 559. See, e. g., State v. Andrasi, 343 So.2d 175 (La.1977); State v. McKay, 324 So.2d 363 (La.1976). The mere circumstance that a defendant is dissatisfied with the sentence he is to receive, after he has entered an informed plea of guilty, is an insufficient basis upon which to hold that a trial court has abused its discretion by refusing to permit him to withdraw the plea. State v. Robinson, 311 So.2d 893 (La.1975).

Other Assignment

By Assignment 3, the defendant further argues that his motion to quash the bill of information in the second-offender proceeding should have been sustained. He notes that the present offense was committed after he was discharged from the sentence for his 1976 Louisiana conviction. He contends that, therefore, as a first offender he was automatically pardoned for it (and that it is thus no longer a prior conviction) by virtue of the provision of Art. 4, Section 5(E)(1) to such effect.

In State v. Adams, 355 So.2d 917 (La.1978), we rejected an identical contention. Examining the constitutional debates and the related constitutional provision of Art. 1, Section 20, we found that the constitutional intent was only to save a first offender from appearing before the pardon board to secure restoration of his basic rights of citizenship. The constitutional provision was not intended to restore the status of innocence, nor to affect the use of the prior conviction for purposes of enhanced sentence as a multiple offender upon subsequent convictions.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

      . The former attorney testified, p. 2, May 9, 1978: “ * * * he [the accused] was not certain of what his sentence had been, he said 18 months, but he did not serve it, and it could have been a situation which we see here commonly: say, the defendant might have been given six months suspended and 18 months probation with the condition that he do a certain amount of time, it could have been that way. At no time was I ever convinced that the defendant had a felony record, I was convinced of the possibility of it, and [in my opinion] the defendant was convinced at all times that he had not been convicted of a felony * * (Italics ours.)