source: Caselaw Access Project

author: DIXON, Justice. SANDERS, Chief Justice CALOGERO, Justice. TATE, Justice

license: Public Domain

text:
    STATE of Louisiana v. Ronald SMITH.
    No. 56410.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Dissenting Opinion Oct. 14, 1975.
    On Rehearing Feb. 23, 1976.

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

Defendant was tried and convicted of the murder of Steve Brubaker during a robbery which resulted in the death of two persons. The trial court sentenced defendant to life imprisonment without benefit of probation, pardon, parole, suspension or commutation of sentence for at least twenty years. It is settled that insofar as it conflicts with the Constitution by depriving the governor of his right to commute sentences (Art. 4, § 5, La.Const., 1974), such a penalty cannot stand. State v. Varice, 292 So.2d 703 (La.1974); State v. Ramsey, 292 So.2d 708 (La.1974).

Defendant raises three assignments of error to this court. We find it-necessary to discuss only two of these.

In his first assignment of error, defendant argues that the trial court committed reversible error by admitting into evidence a picture of the body of the victim taken at the morgue. The picture is a close up color photograph of the victim’s head and shoulders, depicting large amounts of blood spread upon the victim’s body as well as the area surrounding his head. The picture is grisly.

The test of admissibility is whether the probative value • of the photograph outweighs its probable inflammatory effect. State v. Devore, 309 So.2d 325 (La.1975); State v. Chavers, 294 So.2d 489 (La.1974); State v. Curry, 292 So.2d 212 (La.1974). Further, to be admissible, the photograph must be relevant for some purpose. State v. Chavers, supra; State v. Curry, supra. This concept is a recognition that a balance must be struck between the probativity of the photograph and its tendency “to overwhelm reason and to associate the accused with the atrocity without sufficient evidence.” 4 Wigmore, Evidence § 1157 (Chadbourn rev. 1972).

The photograph in the record before us does not depict the scene of the crime, as the trial judge’s per curiam states. The upper portion of the victim’s body and the bloody stretcher are the only objects identifiable in the picture. An assistant coroner later testified that the picture showed the body of the victim as he found it at the scene of the killing. A photographer testified he took the picture at the morgue.

Before this picture was admitted into evidence, the physician who had examined the victim at the scene testified that the victim had died of a gunshot wound to the head. Additionally, the physician who conducted the autopsy testified that the victim had died of a gunshot wound to the head, and he was able to identify the bullet he had removed from the body of the victim. The picture was of little value in establishing the nature of the wounds or the cause of death.

Nor does the value of the picture in identifying the victim outweigh the gruesomeness of the picture; the investigating officer, who knew the victim, gave uncon-tradicted testimony that he recognized the dead body of the victim when he first arrived on the scene of the crime.

Under these circumstances we cannot agree that the probative value of this picture outweighs its prejudicial effect; in placing this photograph before the jury, the trial court abused his discretion.

This assignment of error has merit.

In his third assignment of error, defendant alleges that during the State’s closing argument reference was made to defendant’s failure to take the stand, in violation of the prohibition of C.Cr.P. 770. The comments of which defendant complains were made during the district attorney’s effort to rebut several discrepancies raised by defense counsel:

“. . . Well, I would assume that the gun was held at the top of the head. Wouldn’t you logically conclude that if the bullet entered the top of the head? Who knows what went on in that cooler. Who knows what went on in this room besides the man who’s seated right here and the two dead boys. Albert Lewis, as I said, can say what happened, but they can’t — I don’t know the position they were in in that cooler. One man does and that’s the man who walked out of there with that gun. There were no fingerprints. Well, what are we supposed to do, manufacture fingerprints to say we found fingerprints ? The police made a search for fingerprints and they didn’t find any.” (Emphasis added).

In arguing that this does not constitute a comment on defendant’s failure to take the stand, the State relies on two cases decided by this court. State v. Howard, 262 La. 270, 263 So.2d 32 (1972) and State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972). However, neither of these cases is applicable.

In State v. Howard this court upheld a conviction in which the district attorney, during closing argument, made reference to the defendant by saying “he has not seen fit to tell us.” We were careful to point out that the remark was not a reference to defendant’s failure to take the stand because it referred to a lengthy recorded confession during which defendant had not explained why he had shot the victim of the armed robbery:

“The trial judge found that the physical evidence introduced at the trial was on the rail of the jury box before the jury at the time of the closing argument, and that the prosecutor’s reference was to a lengthy tape recorded confession, in which the accused admitted the crime, but gave no explanation for shooting the victim of the robbery.” (263 So.2d 32, 34).

In State v. Clouatre a State witness, testifying in response to questions propounded by defense counsel, remarked, “No sir, no one could say definitely, except your client, sir.” We clearly noted that whether or not the remark was a comment on defendant’s failure to take the stand it was given by a witness in explanation to the question propounded by defense counsel:

“It is doubtful that the witness’ remark can be said to be a comment on the failure of the accused to take the stand. We judge it is not. Moreover, the statement was made in response to a question by defense counsel on cross-examination. It was not a statement by ‘the judge, district attorney, or a court official.’ And, although it is contended that the statement was gratuitous and uncalled for, it was in explanation of the answer to the question propounded by defense counsel. ...” (264 So.2d 595, 603).

Nor does the district attorney’s remark in the case before us amount to a comment that the State’s evidence is unrefuted. State v. Burch, 261 La. 3, 258 So.2d 851 (1972); State v. Reed, 284 So.2d 574 (La. 1973); State v. Baggett, 292 So.2d 201 (La.1974). At best, this expression is an indirect reference to the defendant’s failure to testify — that he was the only person “who knows what went on in that cooler;” it focuses the jury’s attention on defendant’s silence by asking, “Who knows what went on in this room besides the man who’s seated right here and the two dead boys.”

We cannot allow such an infringement of the rule of our statutes and that laid down in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that “the Fifth Amendment forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.”

We are aware of our decision in State v. Cryer, 262 La. 575, 263 So.2d 895 (1972), in which we held that it was not a comment on the defendants’ failure to testify where, during closing argument, the district attorney pointed to defendants and asked: “Does anybody deny that these two people and Falcon were present that night in the Wooddale apartment? Does anybody attempt to refute this? No.” To the extent that State v. Cryer, supra, is in conflict with this opinion, it is overruled.

The assignment is meritorious.

For these reasons the conviction and sentence are reversed and the case is remanded to the district court for a new trial in accordance with law.

SANDERS, C. dissents and assigns written reasons.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, Chief Justice

(dissenting).

The record reflects that on January 25, 1974, Ronald Smith committed an armed robbery of the Burger King, 2600 North Robertson Street, in New Orleans. During the course of the robbery, he shot and killed Frank Canzoneri, the manager, and Steve Brubaker, an employee; he seriously wounded Albert Lewis, another employee.

In the present case, the defendant was tried and convicted of the murder of Steve Brubaker. The majority reverses his conviction because a picture of the dead victim was introduced in evidence.

Of significance here is the familiar principle that when a defendant pleads not guilty, the State has the burden of proving every element of the crime beyond a reasonable doubt. LSA-C.Cr.P. Art. 804. This means that the evidence of guilt must be such as to convince the jury that there can be no doubt based upon reason. In the present case, this high standard of proof applied to the identity of the victim and to the cause of his death.

The photograph here was taken by the official photographer of the Coroner’s Office after the body was brought to the morgue. It shows the upper portion of the body of a youthful white male on a stretcher, with smudges of dried blood on his head and on the sheet beneath. An identifying number appears in the picture. Although the picture is unpleasant, as are all pictures of death, there is nothing in the picture to shock the sensibilities of jurors, who are obviously aware that the case deals with murder. There is no dismemberment of the body; there is no exposure of the internal organs; there is no gaping wound. This Court has affirmed numerous convictions in which similar photographs, in some instances more gruesome, were admitted in evidence. See, e. g., State v. Gibson, La., 271 So.2d 868 (1973), photograph of a bloody head wound; State v. Hopper, 251 La. 77, 203 So.2d 222 (1967), color photographs of the victim’s injuries, including his internal organs; State v. Ford, 259 La. 1037, 254 So. 2d 457 (1971), photograph of the body of victim with a gaping hole in chest; State v. Curry, La., 292 So.2d 212 (1974), photograph of the body of five-year-old boy torn by shotgun pellets fired at close range; State v. McMullan, 223 La. 629, 66 So.2d 574 (1953), color slides showing murder victim lying on bloodstained floor.

In upholding the admissibility of the photograph in State v. Curry, supra, we said:

“There can be no doubt that the photographs had substantial probative value in the present case. They were relevant to the identification of the victim, as the subject of the autopsy, and the cause of death.”

The present photograph is admissible for the same reason as those in the above case. Two physicians examined the deceased. One of them, Dr. George Bailey, testified specifically that he could not identify the person whose body he examined. Tr. 85-86. The testimony of the other, Dr. Monroe Samuels, contains no indication that he was acquainted with the victim. Thus, the photograph had substantial probative value in establishing the identity of the subject of the autopsy and in corroborating the medical testimony that the victim died of a head wound.

It is true that the photograph does not show the point of bullet entry, but this does not render the photograph irrelevant. The concentration of blood on the head corroborates the medical testimony as to the cause of death.

During the past quarter century, this Court has dealt with hundreds of cases in which the photograph of the dead victim has been admitted in evidence. Insofar as I can determine, only one of them resulted in a reversal: State v. Morris, 245 La. 175, 157 So.2d 728 (1963). That case must be limited to its extreme facts, summarized as follows:

(1) The color photographs showed the body during the progress of the autopsy, including the open body cavity and internal organs. In some of them, the coroner ' was holding the organs.
(2) The colored photographs duplicated black and white photographs clearly showing the bullet wounds and had no real evidentiary value.
This Court was careful to point out:
“If the photographs had been limited to the area showing the points of entrance and possible egress of the bullets without showing the gruesome incisions incident to the autopsy, the action of the court in the admission of such cumulative evidence could not be held to be reversible error . . . .”

That case, of course, is distinguishable from the present one.

Finally, I must note with great concern that the evidence of guilt in the present case is overwhelming. In view of the nature of the evidence, it is difficult to understand how the majority can suggest that the photograph had a tendency “to overwhelm reason” and produce a guilty verdict without sufficient evidence.

A secondary holding of the majority is that reversal is required because the District Attorney commented on the failure of the defendant to take the stand and testify in his own behalf.

The statement complained of is in this context:

“Now, we are pointing out discrepancies, certain holes, certain funny things in the case and it’s a little confusing as to . ... whether these things happened and so forth. Well, we are told that a bullet entered Steve Brubaker’s head from the top and from the bottom and how is this possible. Well, I would assume that the gun was held at the top of the head. Wouldn’t you logically conclude that if the bullet entered the top of the head? Who knows what went on in that cooler. Who knows what went on in this room besides the man who’s seated right here and the two dead boys. Albert Lewis, as I said, can say what happened, but they can’t — I don’t know the position they were in in that cooler. One man does and that’s the man who walked out of there with that gun. There were no fingerprints. Well, what are we supposed to do, manufacture fingerprints to say we found fingerprints? The police made a search for fingerprints and they didn’t find any. We heard talk about a white gun, or a white bag, rather, or a gray bag not being found. We heard talk about some discrepancies in the money, or what happened to the rest of this money. You know what this reminds me of, it reminds me perhaps of many, many people who write history.”

The double killing occurred in a cold storage room. Only the killer and two victims were present. In the context of the above statement, the District Attorney is explaining why the minute details of the killing have not been shown but that defendant’s commission of the crime is unre-futed by any evidence. (The defense offered no evidence.) Such a statement provides no basis for reversing the conviction. State v. Baggett, La., 292 So.2d 201 (1974); State v. Reed, La., 284 So.2d 574 (1973); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972); State v. Burch, 261 La. 3, 258 So.2d 851 (1972).

In State v. Cryer, supra, this Court stated:

“In the jurisprudence, this Court has drawn a distinction between a statement that the State’s evidence is uncontradict-ed and a prohibited comment upon the failure of the defendant to testify. The distinction has ample support in law and reason. Defense evidence is not restricted to defendant’s own testimony. It may consist of the testimony of other witnesses and demonstrative evidence.”

This Court cited the decision in State v. Cryer, supra, with approval in State v. Reed, La., 284 So.2d 574 (1973). I know of no adequate reason to overrule State v. Cryer, as the majority has done, since it follows a well-established principle of law.

For the reasons assigned, I respectfully dissent.

ON REHEARING

CALOGERO, Justice.

On application of the state we granted a rehearing in this matter to consider anew the alleged errors in the conduct of the trial which prompted us originally to reverse defendant’s conviction and order the case retried.

Originally we found prejudicial error in two respects. We determined that the trial judge committed reversible error by admitting into evidence a photograph of the upper body of the victim Stephen Bru-baker taken at the morgue. Additionally, we determined that the prosecutor, in his closing argument, made an indirect reference to defendant’s failure to take the stand, requiring grant of a mistrial by virtue of Article 770 of the Code of Criminal Procedure.

Upon reconsideration we find neither asserted error meritorious; and, finding no merit in the sole remaining bill, (not considered originally) we reverse our earlier opinion and affirm defendant’s conviction.

Defendant Ronald Smith was indicted for the first degree murder of Stephen Brubaker in the perpetration of an armed robbery. He was tried by jury and found guilty of second degree murder. The trial court sentenced defendant to life imprisonment without benefit of probation, pardon, parole, suspension or commutation of sentence for at least twenty-years. It is settled that, insofar as the sentence conflicts with the Constitution by depriving the governor of his right to pardon or commute sentences (Art. 4, § 5, La. Const., 1974), such a penalty cannot stand. State v. Varice, 292 So.2d 703 (La.1974); State v. Ramsey, 292 So.2d 708 (La.1974). Thus, although we affirm defendant’s conviction, we must vacate his sentence and remand his case for re-sentencing in accordance with the foregoing.

The single color photograph at issue in assignment of error number one, the only photo taken at the morgue, was of the victim lying on a sheet. It was taken by the coroner’s photographer. It showed the upper portion of the body of a youthful male with smudges of dried blood on his face, neck and upper chest and on the sheet beneath. It consisted of a profile of the victim’s head, eyes closed, without any major wounds evident. The state used the photograph when asking the boy’s father, John P. Brubaker, to identify his son, who was the victim of the murder.

The test of admissibility was properly set forth in our original opinion. That test is whether the probative value of the photograph outweighed its probable inflammatory effect. State v. Chavers, 294 So.2d 489 (La.1974); State v. Curry, 292 So.2d 212 (La.1974). The evidence of course must also be relevant for some purpose. And, as we indicated originally, a balance must be struck between the proba-tivity of the photograph and its tendency “to overwhelm reason and to associate the accused with the atrocity without sufficient evidence.” 4 Wigmore Evidence, § 1157 (Chadbourn rev. ed. 1972).

Consistent with this proper evidentiary rule, this Court found reversible error in State v. Morris, 245 La. 175, 157 So.2d 728 (1963). In that case, the color photographs used at trial showed a body during the process of an autopsy, including the opening of the body cavity and the internal organs. In some of the photographs, the detached organs were being held and exhibited. Furthermore, some of the color photographs duplicated black and white photographs already introduced in evidence. The photographs in Morris were indeed inadmissible. Morris, however, is distingishable from - the present case, although we do not mean to say that only photographs taken, during the progress of an autopsy, with open body cavity and internal organs exhibited, is inadmissible.

In the case at hand, the photograph was certainly unpleasant. It was not, however, especially gruesome. The only questionable element was the presence of blood in the color photograph. The picture as a whole, however, was not in our view so gruesome as to “overwhelm reason” and cause a jury to lose sight of the need for the prosecutor to establish with sufficient independent evidence the guilt of the accused. The jury had already been shown, without objection, two other distasteful photographs of the victim at the scene of the crime. (These photographs, one in color and one black and white, had been introduced to show the murder scene as it looked when it was discovered by investigating officers.) Additionally, of course, the jury knew that they were trying a murder case. The addition of this one objected-to color photograph did not add appreciably to the unpleasant depiction of this murder.

Furthermore, the photograph had distinct probative value. Inasmuch as the indictment charged defendant with the murder of one Stephen Brubaker, it was at least appropriate, and possibly necessary, for the state to establish that it was Stephen Brubaker who was the victim of this murder. It is not proper for us to conclude that the identification of Stephen Brubaker by his father was unnecessary because a police patrolman had already testified that he viewed the victim at the scene of the crime and recognized him as a young employee of the Burger King known to him as “Steve.” Under any conditions, the father’s identification of the victim as his son Stephen Brubaker was “probative.” Furthermore, it is inappropriate for us now- to determine that the identification was or was not absolutely essential to the state’s case. In any event we find that this identification was not merely cumulative.

When we balance the probative value of the photograph toward proving the identity of the murder victim, with the small likelihood that the jury was inflamed simply upon seeing this picture, we find that the probative value of the photograph outweighs its possible inflammatory effect. We realize that making this determination involves weighing two elusive concepts with an overall view not available to the trial judge. And the prosecutor would do well to avoid flirtation with reversible error. Nonetheless, we do not find that in this case the state committed error in using the photograph. Our judgment in this case, like that of the trial judge, is that this single photograph had sufficient probative value so as not to be outweighed by its possible inflammatory effect.

Relative to our second major concern on original hearing, we review anew a comment made by the district attorney in closing argument.

Article 770 of the Code of Criminal Procedure requires that a mistrial be ordered, upon motion of defendant, when a remark or comment made by the district attorney during trial or in argument refers directly or indirectly to “ . . . (3) The failure of the defendant to testify in his own defense . . . .”

In the case at hand, the trial judge refused to grant a mistrial upon a motion made by defendant’s counsel at the conclusion of the district attorney’s closing argument. The two statements here at issue are underscored in the following excerpt from the district attorney’s argument.

"Who knows what went on in this room besides the man who’s seated right here■ and the two dead boys. Albert Lewis, as I said, can say what happened, but they can’t — I don’t know the position they were in in that cooler. One man does and that’s the man who walked out of there with that gun.”

The statement came in the midst of an argument of the district attorney having to do with certain details of the killing. (Specifically, the district attorney was discussing lack of specific proof as to where the gun was held in relation to the head of the victim when it was discharged.)

Very clearly, neither statement was a direct reference to defendant’s failure to testify. Instead, the question here is whether the comment was an indirect reference to the failure of the defendant to testify in his own defense. In order to mandate a mistrial we have said that the inference must be plain that the remark was intended to bring to the jury’s attention the failure of the defendant to testify. State v. Reed, 284 So.2d 574 (La. 1973); State v. Howard, 262 La. 270, 263 So.2d 32 (1972).

As we review the district attorney’s entire argument it becomes apparent to us that the two statements were not intended to call to the jury’s attention the defendant’s failure to testify or failure to take the stand. The thrust of the argument was basically as follows:

We don’t know some of the inconsequential specifics incident to the shooting inside the cooler because only the two dead boys and the defendant, whom we allege walked out of the cooler with that gun, were there.

Aside from the district attorney’s intent, the words used simply do not focus upon the defendant’s failure to take the stand. Furthermore, we do not read the words spoken as indicating that the district attorney had the intent to focus, however indirectly, upon defendant’s failure to testify. His intent, as we determine it from the argument he presented to the jury, was to point up a problem in proving inconsequential specifics in light of the physical realities. And we conclude that the jury more than likely received the argument in that vein, rather than as one suggesting that they should conclude defendant was in the cooler or that defendant was guilty of the murder, because otherwise he would have taken the stand in his defense.

We do not deem it necessary to rely on decided cases to support our decision, nor to express agreement or disagreement with any of them. We note, however, that this position is not contrary to any of the reported decisions of this Court which we have been able to uncover. See State v. Hall, 297 So.2d 413 (La.1974); State v. Baggett, 292 So.2d 201 (La.1974); State v. Reed, 284 So.2d 574 (La.1973); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972); State v. Howard, 262 La. 270, 263 So.2d 32 (1972); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972); State v. Burch, 261 La. 3, 258 So.2d 851 (1972).

A third specification of error, which we did not review in our original opinion because of our reversal upon the two asserted errors discussed hereinabove, was the trial court’s overruling defendant’s motion for a mistrial which defendant urged because of the state’s failure to give proper notice of its intent to use an inculpatory statement at trial. The ruling arose during the testimony of John W. Ross, Sr., a friend of the defendant. Defendant had gone to the witness’ house after the crime, and the witness began to relate what occurred there. The following colloquy occurred :

“Q. All right. Would you tell us what happened when he came to your house?
A. Well, when Ronald came he gave me some money, told me he wanted to stay there a while. I told him okay and then he say let’s see. He told me, he say he wanted to stay. I .said okay., So he gave me the money and I took the money and I put it in a plastic bag and I put it in my shed and he told me to keep it for him. I said okay. Well, he left then and I told him, I say, wéll, I’m going to the cleaners and I say my wife has to go to town and when I come back she can go. So I went to the cleaners and I came back and my wife left. Then Ronald came and he asked me for the money and I went and got the money.
Q. All right.
A. He asked me — so we started counting the money. I started counting. I count about $400 in money — and and that’s when he told me, he say, Well, let me count the money.’ He say give me some envelopes. So I went and got the envelopes for him and I put, myself I put money in about three or four envelopes and that’s when Ronald was telling me about the money came from Burger King.
DEFENSE COUNSEL: I object to anything Ronald Smith might have told him. There’s been no predicate laid for this.”

After a discussion before the bench, defense counsel renewed his objection, this time arguing that no notice of its intent to use an inculpatory statement had been given him by the state. The state agreed to abandon this line of questioning. Defendant nonetheless persisted in his mistrial motion, which the court denied. The court then, on defendant’s request, admonished the jury to disregard any testimony given by the witness as to any remarks allegedly made to him by defendant.

Defendant argues that Article 775 of the Code of Criminal Procedure provides that a mistrial shall be declared when there is a legal defect in the proceeding which would make any judgment entered upon a verdict reversible as a matter of law. He contends that a legal defect occurred in the proceedings when evidence of an incul-patory statement was admitted in violation of C.Cr.P. art. 768. That articles provides that:

“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning of state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

He contends that the admission of this statement constituted prejudicial error because the jury was allowed to hear the beginning of an inculpatory statement to defendant’s detriment.

The admonition to disregard the witness’ statement relating what defendant told him about the money coming from Burger King was not made necessary because defendant’s admission or inculpatory statement was inadmissible as an eviden-tiary matter. It was given rather because the state had not given proper notice of • its intent to use the inculpatory oral statement at trial. Had the state intentionally solicited the testimony by direct questioning or otherwise after neglecting to give the Article 768 notice, there is no doubt that it would have violated the article. However, it is apparent that the witness’ testimony was an unsolicited, unresponsive answer which the state neither intended to nor attempted to elicit.

For all of the foregoing reasons we reverse our decision expressed in the original opinion herein and now affirm the conviction of defendant Ronald Smith. Defendant’s sentence is vacated and the case remanded for the imposition of sentence not inconsistent with Art. IV, Sec. 5 of the Louisiana Constitution of 1974.

TATE, J., assigns concurring reasons.

DIXON, J., dissents.

TATE, Justice

(concurring).

I concur in the affirmance of the opinion; also, in the majority’s finding that the district attorney’s closing argument did not constitute reversible error and that a mistrial was not warranted because of a witness’ brief reference to an inculpatory statement not admissible under our law. In the latter case, the admonition was sufficient to cure the defect, especially since the state promptly and properly abandoned this line of questioning.

I do not agree, however, that no error was committed in the introduction for no recognized purpose of the photograph of the victim at the morgue. The prosecution cannot introduce gruesome photographs by asking a witness (in this case, the victim’s father) if the photograph figure is a certain person (here, earlier identified as the victim). The photograph must be independently admissible.

The error, however, was harmless under this particular record. The photograph, while unpleasant, was not of a grotesque nature. Further, and perhaps as important, a photograph of the decedent similar to the picture in question, taken at the scene of the crime, had already been admitted in evidence. (This was not called to our attention until the application for rehearing.) The first photograph was independently admissible as a depiction of the results of the crime, and its probative value exceeded its prejudicial effect.

The crime here in question was brutal. Nevertheless, the affirmance of a conviction felt to be justified should not induce a court to announce bad law. The rights of other accused before our courts may be prejudiced if we relax traditional rules prohibiting introduction of irrelevant testimony or photographs into evidence for no other purpose than to inflame the jury.

Hard cases should not make bad law. We should not excuse the prosecution’s mistake by clearing it of error, despite the sincerity of its protestations that no improper conduct was intended and that the crime was so brutal that normal rules of evidence should be overlooked.

The picture at issue was simply inadmissible, as we found in our original opinion.

Without explanation, the present majority concludes that State v. Morris, 245 La. 175, 157 So.2d 728 (1963) is distinguishable from the case before us. There, we reversed Morris’ conviction because the prosecution introduced photographs taken during an autopsy of the victim’s body. It was argued that the photographs were probative because they showed the victim’s organs were healthy and that his death did not result from any disease thereof.

We held, however, that the photographs themselves had no probative value to that effect for a ‘lay jury, but that instead the testimony of the medical witness as to such effect was all that was required or permitted.

The same principle applies to the present •case. Here, the state alleges the photograph was probative because it showed the jury that the boy was the victim of the murder. The photograph, taken at the morgue, portrayed the body found at the scene of the murder. It was shown to the boy’s father for identification.

It was the father’s testimony, then, which was probative to show that his son, was the victim of the homicide. The photograph did not identify the dead body. Just as in Morris, the jury itself could make no determination from the picture itself of the relevant issue. As a matter of fact, the identification of the victim was not at issue.

The majority’s reasoning on this contention is erroneous.

Nevertheless, for the reasons earlier stated, I concur in the affirmance because, under the present limited circumstances, the error was harmless.

      . The comment is quoted more fully in the original opinion and in the dissent to the original opinion.

      . For instances of direct reference see the leading United States Supreme Court case, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) wherein the distriet attorney stated “these things [the accused] has not seen fit to take the stand and deny or explain.” And State v. Hall, 297 So.2d 413 (La.1974) wherein the district attorney stated that defendant is “[t]he type of person who would jump up in a courtroom,, and yell at a police officer when he hadn’t even taken the stand.”


author: CALOGERO, Justice. SUMMERS, Justice MARCUS, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Eddie LUCKETT.
    No. 56289.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Dissenting Opinion Nov. 21, 1975.
    On Rehearing Feb. 23, 1976.

      Leo A. Miller, Jr., McIntosh, Fox & Miller, Lake Providence, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Thompson L. Clarke, Dist. Atty., C. R. Brackin, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Eddie Luckett, was charged by bill of information with simple robbery in violation of La.R.S. 14:65. He was convicted after trial by jury and was sentenced to serve five years in the custody of the Louisiana Department of Corrections.

On appeal, defendant presents six assignments of error for our review. We find merit in defendant’s assignment of error no. 3 and accordingly reverse the conviction and sentence.

In abbreviated form the facts are that the accused, a friend of his by the name of Diane Phenix, and one Quitman Wayne Ainsworth were riding along Louisiana Highway No. 134 on the evening of February 25, 1975 in a vehicle driven by the defendant, when the defendant stopped his automobile. After Ainsworth got out to check for a low tire, an altercation outside of the car took place between Ainsworth and the defendant. Defendant purportedly beat Ainsworth with his fists and allegedly during the beating took various items, including a blue Cricket cigarette lighter, a wallet containing about $3.00, and a pocket knife, from Ainsworth.

At trial defendant admitted fighting with Ainsworth, explaining that he had bought a tape 'player from Ainsworth two weeks prior to the incident and was actually seeking to get his money back because the tape player did not work. He denied taking anything from Ainsworth although at the time of the arrest, he was in possession of a blue Cricket cigarette lighter allegedly belonging to Ainsworth. His explanation was that he had found the lighter in the back seat of his car where Ainsworth had earlier been seated.

The reversible error which we find occurred took place during the state’s cross-examination of defendant. In this nonnarcotic offense of simple robbery, without any evidence that the defendant had ever been convicted of the crime of possession of marijuana, the district attorney quizzed defendant on whether he had, on the night in question, any marijuana in the back seat of his car and whether he had been smoking marijuana that night. While the court originally sustained an objection to the original question concerning marijuana in the back seat of the car, the court nonetheless changed its ruling upon the state’s pointing out that defendant was under cross-examination and that his credibility was at issue. Following the court’s overruling of the objection, the state succeeded in eliciting from the defendant the incriminating response that he had not been smoking marijuana “that night,” with the obvious inference that he had perhaps smoked marijuana on other occasions. Indicative that the prosecutor’s objective was to obtain an oral admission of an incriminating nature from the irrelevant and prejudicial questioning, and that the prosecutor had no evidence that the defendant had any prior conviction (s), is the fact that after securing the incriminating statement he turned his questioning to other matters.

Defendant’s credibility was at issue inasmuch as he had taken the stand in his own defense, but under our law defendant’s credibility may be attacked only by having him admit or deny whether he had been convicted of a crime, and only if he denied a previous conviction could the state produce evidence that he had indeed been so convicted. See R.S. 15:495. That statute is also express in mandating that only convictions may be used to impeach a witness’ credibility; the state may not even inquire into arrests or indictments. The pertinent questions here were obviously not permissible under that statute.

Evidence of the commission of prior crimes was likewise not admissible to prove the defendant’s bad moral character, as the state may introduce testimony of the bad character of the accused only to rebut evidence introduced by him to show good character, and even then such rebuttal evidence as limited to general reputation in the community. La.R.S. 15:481, State v. Harris, 258 La. 720, 247 So.2d 847 (1971); State v. Norphlis, 165 La. 873, 116 So. 374 (1928). Defendant here had not put his character in issue.

Evidence of other crimes is admissible only under the provisions of R.S. 15:445 and 15:446, where it is introduced to establish knowledge, system or intent where such knowledge, system or intent is relevant. Even then such evidence of other crimes is permissible only if the state has followed the requisite guidelines outlined in State v. Prieur, 277 So.2d 126 (La.1973). Furthermore, compliance with the statute and the Prieur guidelines is necessary regardless of the stage of the trial at which other crimes evidence is offered, including cross-examination of the defendant. State v. Ghoram, 290 So.2d 850 (La.1974). In this case, the state does not even argue the admissibility of the other crimes evidence on the basis of R.S. 15:445 and 15:446, much less compliance with the notice required by Prieur.

The state in brief points to State v. White, 301 So.2d 321 (La.1974) for the proposition that evidence of prior crimes is admissible to question defendant’s credibility when he chooses to testify in his own behalf. Unlike the case at hand, State v. White involved interrogation of a defendant relative to convictions of several crimes, and the evidence was therefore admissible under R.S. 15:495.

We find that the court’s ruling which allowed the state to have defendant inferentially admit that he smoked marijuana on another occasion than the night in question was both a substantial violation of a statutory right and was extremely prejudicial to the accused, as a consequence of which we have no alternative but to reverse this conviction. See Art. 921, La.C.Cr.P.

Accordingly, the conviction and sentence of the defendant are reversed and the case remanded to the trial court.

Reversed.

SUMMERS, J., dissents and will assign reasons.

DIXON and MARCUS, JJ., dissented.

SUMMERS, Justice

(dissenting).

Defendant took the stand on his own behalf. He was questioned by defense counsel concerning where he obtained the lighter which the State claimed he took from Ainsworth. He replied he found it in the back seat of the car. At that point defense counsel asked him, “What in the world were you doing in the back seat of your car? How did you manage to find the lighter, in the back seat of your car?” He replied that he was getting paper there to wipe mud off his pants.

It is my view that the State’s attorney was permitted to cross-examine him concerning what he was doing in the back seat and what else was there. By this questioning the State apparently sought to show that there were other things in the back seat which induced defendant to be there besides the paper to wipe mud off his pants. This was legitimate cross-examination to contradict the defendant’s testimony on a fact which was testified to by the defendant on direct examination. As such it was within the scope of legitimate cross-examination.

Section 462 of Title 15 of the Revised Statutes provides that “When a person accused, or a husband and wife becomes a witness, such witness shall be subject to all the rules that apply to other witnesses, and may be cross-examined upon the whole case.”

Not only may an accused who takes the stand be cross-examined on the whole case, the cross-examination is not limited to matters covered on direct examination. State v. Sears, 298 So.2d 814 (La.1974); State v. Collins, 283 So.2d 744 (La.1973); State v. St. Amand, 274 So.2d 179 (La. 1973). It should be noted also, that at the time of the objection defense counsel gives no reason for objecting except to say that the questioning was inflammatory. This is not the basis for the reversal. State v. George, 312 So.2d 860 (La.1975).

None of the authorities cited in the majority opinion relate to a case where the accused has taken the stand and waived his right to incriminate himself.

In my view the cross-examination in this case was proper.

I respectfully dissent.

ON REHEARING

MARCUS, Justice.

Eddie Luckett was charged by bill of information with simple robbery of Quit-man Wayne Ainsworth in violation of La. R.S. 14:65. After trial by jury, he was found guilty as charged and was subsequently sentenced to serve five years with the department of corrections. Defendant appealed to this court, relying on six assignments of error. On original hearing, this court found merit in Assignment of Error No. 3. The conviction and sentence were reversed and the case remanded for a new trial. Upon application of the state, we granted a rehearing. After reconsideration, we find no merit in Assignment of Error No. 3. Our examination of the other assigned errors leads to the conclusion that they likewise are without substance. Accordingly, we vacate our original decree and affirm defendant’s conviction and sentence.

FACTS

About eleven-thirty on the night of February 23, 1975, Quitman Wayne Ainsworth was walking down La. Hwy. 134. He was given a ride by Eddie Luckett who was accompanied by Diane Phenix. Luckett stopped the vehicle on the pretext of looking at a flat tire. Both Luckett and Ainsworth alighted from the car, and, while Ainsworth was looking at the tire, he was struck by Luckett. Luckett hit, kicked and stomped Ainsworth. During the beating, Luckett allegedly removed a wallet containing $3.00 and a pocket knife from Ainsworth’s pants and a blue Cricket lighter and cigarettes from his shirt pocket. Ainsworth also claimed that a nickel was missing from his pants pocket after the incident. Diane Phenix got out of the car and was successful in getting Luckett to stop beating Ainsworth. Luckett and Phenix then re-entered the car and drove off as Ainsworth ran from the scene. Shortly thereafter, a car stopped and Ains-worth was offered assistance. He declined because of his bloody condition, but the occupants of the vehicle proceeded to town and reported the matter to the police. A description of the automobile, as well as the clothes worn by his assailant, was given by Ainsworth to the police. About three hours later, based on this information, Luckett was arrested. At the time of his apprehension, he was driving the car and dressed in the clothing as described by Ainsworth. A blue Cricket lighter and $3.14 were on his person at the time of arrest. Luckett’s shirt had blood and mud stains on it; his pants and shoes were muddy; and his pants had a hand print on them. Diane Phenix testified that she saw Lückett with a wallet when he got back into the car, saw him remove $3.00 from it and then throw the other papers away as they departed. The next day she took the police officers to the place where this occurred, and the contents of the wallet were recovered.

Luckett took the stand and freely admitted beating Ainsworth but denied taking anything from him. He claimed that he had bought a defective tape player from Ainsworth two weeks prior to the incident and was seeking to get his money back. He testified that he had seen the blue Cricket lighter in the back seat, where Ainsworth had been seated, when Diane opened the door and the car light came on. He stated further that he had gone into the back seat to get some papers to wipe the mud off his pants. This he claimed was the reason for the fingerprints on his pants. He also explained that it was at this time that he put the lighter into his pocket.

ASSIGNMENT OF ERROR NO. 1

Defendant moved for a preliminary examination to determine probable cause. After presentation of the state’s evidence, the trial judge ruled that there was probable cause to charge the accused with the offense. La.Code Crim.P. art. 296 (1966). Defendant alleges that the trial judge erred in this ruling.

The question of probable cause is now moot since defendant has been tried and convicted by a jury. State v. Monk, 315 So.2d 727 (La.1975) and State v. Richardson, 258 La. 62, 245 So.2d 357 (1971). Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant filed a motion to suppress all evidence seized from him at the East Carroll Sheriff’s office on the night of his arrest. He contends that the search was unlawful as it was not performed contemporaneously with his arrest. ' The denial of this motion by the trial judge is the subject of Assignment of Error No. 2.

Description of the clothing that the suspect was wearing and the vehicle he was driving had been transmitted to the police by the victim. About three hours thereafter, a car meeting this description was spotted at the Key service station on Fourth and Gould. It was stopped by the police, and the clothing of the driver fit the description given by the victim. The suspect was ordered out of the car, handcuffed and placed under arrest. He was immediately taken to the police station where he was ordered to remove the contents of his pockets and place them on the desk. This was some ten minutes after his arrest. A billfold, a blue Cricket lighter and $3.14 were removed by defendant.

Under the circumstances, probable cause existed to arrest defendant. Hence, the arrest was lawful, and the search and seizure were made incident thereto. A search incident to a lawful arrest is an exception to the warrant requirement of the fourth amendment. The fact that the search and seizure were not performed until defendant arrived at the police station is of no moment. We stated in the recent opinion in State v. Rogers, 324 So.2d 403 (La.1975):

. . . Searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. Both the arrestee’s person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place, and, if evidence of crime is discovered, it may be seized and admitted in evidence. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

The trial court properly denied the motion to suppress. Assignment of Error No. 2 lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant took the stand and testified during his examination in chief that he had found the blue Cricket lighter on the back seat of his car. During cross-ex-animation, he was questioned concerning this fact and was asked if he had marijuana on the back seat. Objection made by defendant was first sustained; however, upon being reminded that this was cross-examination, the court overruled the objection and defendant was again asked if he had some marijuana on the back seat of his car. He replied that he did not. Then the question was propounded: “Had you been smoking marijuana that night?” And he replied: “Not that night.” The objection was made on the ground that this was inflammatory. The overruling of this objection forms the basis of Assignment of Error No. 3.

The following are pertinent statutory provisions:

When a person accused, or a husband or wife becomes a witness, such witness shall be subject to all the rules that apply to other witnesses, and may be cross-examined upon the whole case.

La.R.S. 15 :462.

Each side has the right to impeach the testimony and the credibility of every witness sworn on behalf of the other side.

La.R.S. 15:486.

The credibility of a witness may be attacked generally, by showing that his general reputation for truth or for moral character is bad, or it may be attacked only m so far as his credibility in the case on trial is concerned.

La.R.S. 15:490. (Emphasis added.)

Defendant’s credibility was at issue when he took the stand in his own defense. The state has an undoubted right to cross-examine a defense witness to test his credibility relative to the facts in the case on trial.

Defendant stated on direct examination that he had found the blue Cricket lighter on the back seat of his car where the victim had been seated. The fact of whether the lighter had been taken from the victim at the time of the beating, as related by the victim and denied by defendant, or found on the back seat of the car, as defendant had testified, was crucial to the state’s case.

Various ways are recognized as proper to attack the credibility of a defendant who has testified to facts that occurred at the time of the offense. Thus, defects of capacity, sensory or mental, which would lessen the ability to perceive the facts which the witness purports to have observed, are provable to attack the credibility of the witness, either upon cross-examination or producing other witnesses to prove the defect. Clearly, a defect in capacity may result from the use of drugs or alcohol. Whether a witness was intoxicated, by use of drugs or alcohol, on the occasion respecting which he is called upon to testify goes to his credibility and weight of his evidence and not to his competency. See State v. Sejours, 113 La. 676, 37 So. 599 (1904).

Therefore, it was permissible for the state to cross-examine defendant as to his use of marijuana at the time of the alleged offense. It represented a proper attempt to attack his credibility which was crucial to the state’s case. After receiving negative responses to the two or three questions asked by the prosecutor, the matter was pursued no further. Under the circumstances, we do not find that the questioning of defendant was inflammatory. Assignment of'Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial judge erred in denying his motion for a mistrial. He claims that the prosecutor’s continued use of the word “bloody” in his closing argument to the jury was inflammatory and created prejudice against defendant in the mind of the jury.

In argument to the jury, the prosecutor, in order to show that the state had proven “force or intimidation” in the taking, first related the details of the beating of the victim Ainsworth by the defendant as brought out by the testimony of both Ains-worth and Diane Phenix and admitted by defendant himself. The prosecutor commented :

[Tjhis is the closest that we ever come to really just having an eyeball witness to the whole bloody mess so to speak. . . . And when I say, bloody mess, that’s exactly what I mean . . . [holding up the shirt of defendant introduced into evidence]. It doesn’t, it doesn’t take an expert to recognize a blood spot on a shirt when they have seen them. You ladies have seen this often enough. And the defendant admits that this is his clothing. This is the shirt that he had on when he beat up Wayne Ainsworth. . . .

Officer Bridges testified that at the time of arrest defendant had on a shirt with blood on it in several places, and defendant was “muddy and bloody.” The shirt was properly identified by the officer and introduced into evidence. The victim also testified as to his bloody condition.

Argument shall be confined to evidence admitted, to lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. La.Code Crim. P. art. 774 (1966). When evidence is properly admitted, it is not improper for the state to refer to it in closing argument. State v. Vince, 305 So.2d 916 (La.1974). Also, the prosecutor may properly comment on and summarize the evidence in arguing facts. State v. Sellers, 292 So.2d 222 (La.1974) and State v. Daniels, 262 La. 475, 263 So.2d 859 (1972).

In view of the evidence adduced regarding the presence of blood on defendant’s shirt and the victim, the prosecutor’s use of the word “bloody” in his closing argument was not improper. It was not unduly repetitious. The trial court correctly denied defendant’s motion for a mistrial. Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, defendant contends that the prosecutor in his closing argument erroneously defined acts that constitute the crime of simple robbery.

There is no merit to this contention. The prosecutor first defined the crime of simple robbery as set forth in R.S. 14:65. He also related to the jury the definition of theft as contained in R.S. 14:67. Thereafter, his argument was directed to show wherein the evidence supported each element of the crime charged. We find no reference by the prosecutor to acts not constituting simple robbery. Assignment of Error No. 5 is without substance.

ASSIGNMENT OF ERROR NO. 6

Defendant contends in this final assignment of error that the trial judge erred in failing to charge the jury as to the entire law applicable to the case and in refusing to give several special charges requested by defendant.

The trial judge is required to charge the jury as to the law applicable to the case. La.Code Crim.P. art. 802 (1966). In addition to the judge’s general charge, the state and defendant shall have the right before argument to submit to the court special charges for the jury. A requested special charge shall be given by the judge if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La.Code Crim. P. art. 807 (1966).

Defendant argues that the trial judge’s general charge was inadequate insofar as to what constitutes “taking” under the law; therefore, his requested special charges should have been given. The record does not contain any such special charges. In any event, the general charge fully sets out each element of the crime charged and defines simple robbery and theft as contained in R.S. 14:65 and R.S. 14:67. In our view, the trial judge’s general charge adequately covered the law applicable to the case. La.Code Crim.P. art. 802 (1966). Hence, there is no merit in this assignment of error.

DECREE

For the reasons assigned, our original decree is vacated and set aside; and it is hereby ordered that defendant’s conviction and sentence be affirmed.

TATE, J., dissents and adheres to the court’s opinion on original hearing.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice

(dissenting).

I respectfully dissent from the affirmance of defendant’s conviction and sentence for the reasons assigned in this Court’s opinion on original hearing.

      . The pertinent portion of the transcript is the following:
      BY MR. BRACKIN
      Q. Mr. Luckett, this is all, uh
      very convenient for you to look back and find that blue cricket lighter back there in the back seat wasn’t it?

        A. Well I was getting some papers, uh . . . if the officer will correct me they’ll show him . . . he’ll testify that there was some paper in the back seat. Which I ... he didn’t know if I used it or not but I used it to wipe off the mud off my pants . . . and my shoes as much as I could.
      Q. What else did you have in the back seat of your car Mr. Luckett?
      A. Uh ... I had a letter back there and some of my copies.
      Q. And the marijuana in the back seat?
      MR. MILLER: Objection.
      A. I didn’t have any.
      JUDGE SMITH: Sustained.
      MR. BRACKIN: This is cross examination, Tour Honor.
      JUDGE SMITH: That’s right, then the objection is overruled.
      MR. MILLER: Your Honor, what .
      JUDGE SMITH: The objection is overruled Mr. Miller he’s now in cross examination.
      Q. Didn’t you have some marijuana in the back seat of your car?
      A. No I did not.
      Q. Had you been smoking marijuana that night?
      A. Not that night.
      MR. MILLER: Well let him answer. Gee whiz. I just think his inflammatory Your Honor, I object this whole line of questioning it’s utterly inflammatory. I don’t know what .
      JUDGE SMITH: Mr. Miller, if inflammatory he’s under cross-examination. He’s submitted himself to cross-examination. And as the ruling of the Court and further argument on that issue will not be entertained.
      MR. MILLER: I object to the ruling of the Court, Your Honor, and I’d like for my objection to be noted of record.
      JUDGE SMITH: The objection is noted.

      . In White, the defendant admitted his prior convictions. The bill of exception was taken when the prosecutor in rebuttal argument referred to defendant’s admitted prior convictions. We found no reversible error because after defense objection the judge immediately admonished the jury that evidence of other convictions could only be considered in weighing the credibility of the accused and could not be considered on the question of guilt or innocence.

      . Defendant designated an additional error (Assignment of Error No. 3) in his assignment of errors filed in the district court. However, this alleged error was neither briefed nor argued in this court. Therefore, we consider it abandoned.

      . As stated in McCormick on Evidence:
      Manifestly, however, the fact of mental ‘abnormality’ either at the time of observing the facts or at the time of testifying will be provable, on cross or by extrinsic evidence, as bearing on credibility, [footnote omitted]

      Abnormality, as we have seen, is a horse of a different color. It is a standard ground of impeachment, [footnote omitted] One form of abnormality exists when one is under the influence of drugs or drink. If the witness was under the influence at the time of the happenings which he reports in his testimony or is so at the time he testifies, this condition is provable, on cross or by extrinsic evidence, to impeach. . . . [footnote omitted]
      C. McCormick, Law of Evidence, § 45 at 93, 94 (2d ed. 1972).


author: SUMMERS, J.,

text:
    Jerald ANDERSON v. CITY OF NEW ORLEANS et al.
    No. 57547.
    Supreme Court of Louisiana.
    March 5, 1976.
   In re: City of New Orleans and James Aucoin, applying for writs of certiorari, prohibition and mandamus.

Writ denied. The trial court’s ruling is correct. See Champagne v. American Southern Insurance Co., 295 So.2d 437 (La. 1974).

SUMMERS, J.,

dissents, being of the opinion the writ should be granted for the reasons assigned in Jobe v. Hodge, 253 La. 483, 218 So.2d 566 (1969).


author: TATE, J.,

text:
    STATE of Louisiana v. Mark WILSON and Raymond L. Smith.
    No. 57591.
    Supreme Court of Louisiana.
    Feb. 27, 1976.
   In re: Mark Wilson and Raymond L. Smith applying for Writ of Review.

Writ denied. The showing made does not demonstrate an abuse of the trial judge’s discretion.

TATE, J.,

concurs. Although there is no abuse of discretion, he feels sure that, in the event of real hardship, an immediate renewed application to the trial court will be considered.


author: DENNIS, Justice.

text:
    STATE of Louisiana ex rel. Frank L. GEORGE v. Elayn HUNT, Director, Louisiana Department of Corrections.
    No. 56819.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ralph E. Tyson, Asst. Atty. Gen., Ossie Brown, Dist. Atty., for defendant-relator.
    Vincent Wilkins, Jr., Director, Roland T. Huson, III, Appellate counsel, Baton Rouge, for plaintiff-respondent.
   DENNIS, Justice.

We granted certiorari to review a trial court judgment granting respondent credit on his state conviction for the time he served in a federal penitentiary.

In April, 1961, respondent George was sentenced to serve 21 years at hard labor following his conviction for manslaughter. After serving one third of this sentence, he was paroled on April 19, 1968.

He was arrested in Louisiana on January 11, 1972 on a federal charge, then tried, convicted, and confined in a federal correctional institution in Texarkana, Texas. On June 3, 1974, he was released by the federal authorities and returned to the Louisiana State Penitentiary. This was by virtue of a detainer issued by the State shortly after his arrest on the federal charge and filed with the federal authorities.

On August 5, 1974, the respondent filed a petition for mandamus in the Nineteenth Judicial District Court for the Parish of East Baton Rouge to be given credit on his Louisiana sentence for the time served in federal custody. On July 10, 1975, judgment was rendered in his favor decreeing that “[t]he State having failed to bring applicant [back] to serve the remainder of his sentence, * * * ” respondent should be given credit for the period from January 11, 1972 to June 3, 1974 on his Louisiana sentence.

Respondent contends that the trial court ruling was correct and in accordance with our decision in State v. Jones, 285 So.2d 231 (La.1973). The facts in Jones are somewhat similar to those before us, but there are also important differences. After Jones had been placed on two years probation by a Louisiana court, he pleaded guilty to a federal charge and was confined in a federal correctional institution in Florida. During his incarceration there he filed a motion in the proper Louisiana court asking for a speedy trial on a warrant and detainer which had been filed by the State charging him with probation violation. The motion was denied. After expiration of the two year probationary period relating to his state conviction, Jones was released by the federal authorities and returned to Louisiana. We held that the state could not revoke his probation because his two year suspended sentence had been completed. We reasoned that Jones’ confinement in a federal prison during this period did not suspend the running of the probation period because, as held by Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the state could have arrested Jones under warrant and returned him to state court for trial on the charge of violation of his probation.

The situation in the Jones case was substantially different from the one in the instant proceeding where the respondent was returned to Louisiana to resume serving his sentence well before the parole term had elapsed. In fact, in the Jones opinion, at footnote No. 4, we specifically stated that we were not in that case faced with a situation where the warrant was executed and the defendant brought before the court before the completion of the suspended sentence. Furthermore, here respondent did not request that he be returned to Louisiana for a determination concerning his parole revocation, whereas Jones moved for a speedy trial in this regard, albeit unsuccessfully.

Nevertheless, respondent argues that the Jones opinion contains language indicating the state has an absolute obligation to return to Louisiana prisoners confined outside the state for prompt hearing and determination of their revocation charges. In the opinion we stated:

“Our holding today is consistent with recent decisions of the United States Supreme Court, unanimous as to this issue. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). These hold that, in a hearing to revoke probation or parole, the defendant is entitled to compliance with certain due process standards, including a hearing and determination within a reasonably prompt time after the revocation charge is made. See also, Comment, Effective Guaranty of a Speedy Trial for Convicts in other Jurisdictions, 77 Yale L.J. 767 (1968)." Among the reasons requiring this is the otherwise possible loss of having multiple sentences run concurrently rather than consecutively, as well as the desirability of holding the hearing when the evidence is fresh.” 285 So.2d at 234.

In addition to being dicta unnecessary to a decision of the case, these remarks were never intended to apply to every case in which a parolee or probationer is confined outside the state. The state is not required to seek a prisoner’s return for trial on revocation charges except where necessary to a timely initiation of the revocation proceedings or the prevention of real prejudice to the prisoner.

Respondent does not contend that his return to Louisiana while in federal custody was essential to a timely initiation of proceedings. Nor does he argue that an early hearing was required to assure fresh evidence, because he admits having violated his parole by committing a subsequent felony. His only complaint is that by not having his parole revoked earlier, he lost the chance to have his Louisiana sentence run concurrently with the federal sentence.

We find no merit in respondent’s argument. Generally, credit for time spent while serving a sentence under a conviction in one jurisdiction will not be allowed against a sentence upon another conviction in a second jurisdiction. Jennings v. Hunt, 272 So.2d 333 (La.1973). Of course, where a detainer and warrant issued by Louisiana authorities cause confinement in a foreign jurisdiction, credit will be allowed, Jennings v. Hunt, supra, but there is no allegation or proof of this in the instant case. If respondent had been brought back to Louisiana during his federal prison term, he would have been entitled to a hearing before the board of parole. La.R.S. 15:574.9(A). After such a hearing the board of parole may refrain from ordering revocation, La.R.S. 15:574.-9(B), or, if it revokes parole, the board may consider commutation of sentence, the time served prior to parole, and any diminution of sentence earned for good behavior while in the institution. La.R.S. 15:574.9(E). However, the board of parole has not been granted the authority to modify a sentence so as to have it run concurrently with another sentence.

Perhaps respondent has mistakenly based his argument on La.R.S. 15 :574.10, which provides that when a person is convicted in this state of a felony committed while on parole, the sentencing judge may order the new sentence of imprisonment to be served consecutively to or concurrently with the term of imprisonment for violation of parole. However, this statute can have application only to the state courts, and clearly refers to a situation in which the felony committed while on parole is a state crime, punishable by a sentence imposed by a state judge. For this reason La.R.S. 15 :574.10 has no effect in respondent’s situation where the crime committed by him while on parole was a federal offense.

Therefore, if respondent had been brought back to Louisiana during his federal confinement, his Louisiana sentence could not have been made to run concurrently with the federal sentence. Furthermore, upon his return to the state after serving his federal sentence, he was still entitled to a hearing before the board of parole and to any relief which it was empowered to grant him under law. La.R.S. 15:574.9. Consequently, we fail to see how respondent has been prejudiced by the state’s failure to seek an interruption of his federal incarceration or to grant him an earlier revocation hearing.

We are disturbed by intimations in the briefs to the effect that respondent has never been afforded a hearing upon his parole revocation. However, respondent has asked only for credit of time against his sentence and has not complained of a denial of due process because he has not been afforded a hearing. Since he may apply for such relief by habeas corpus if necessary, we will not consider this potentially troublesome aspect of his case at this time.

For the reasons assigned, the judgment of the district court is reversed and the writ is recalled.

SANDERS, C. J., concurs in the result only.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Roosevelt WILLIAMS v. STATE of Louisiana.
    No. 57640.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re Roosevelt Williams applying for Writ of Mandamus.

Writ denied. Trial judge acted on relator’s motion on January 23, 1976. The matter is moot.

DIXON, J.,

concurs in the denial; the return of the trial judge reflects that an extension was granted to perfect the appeal, but it has expired (60 days after Dec. 22.) Since the mandamus has been acted on, the applicant must institute proceedings to take an out-of-time appeal if the time granted to perfect the appeal has expired.


text:
    Ann Olivier ESTILETTE v. J. D. ESTILETTE.
    No. 57560.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: J. D. Estilette applying for Writs of Certiorari, Mandamus and Prohibition.

Writ refused. The showing made is insufficient to warrant the exercise of our supervisory jurisdiction.

CALOGERO, J., respectfully dissents.

DENNIS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Stanley MEYERS.
    No. 57559.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Stanley Meyers, applying for supervisory writs.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.

DIXON, J.,

concurs in the denial. Although almost indistinguishable from Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, that the nature of the offense reported (gun shot) added to the other factors leading to the arrest, supplied the probable cause to arrest and search the applicant.


text:
    STATE of Louisiana v. Michael J. RYAN.
    No. 57555.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: State of Louisiana applying for Writ of Certiorari, Prohibition or Mandamus

Writ denied. There is insufficient showing to justify the exercise of our supervisory jurisdiction.

SUMMERS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. John R. WILLIAMS.
    No. 56981.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Ronald L. Causey, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
   DENNIS, Justice.

Defendant, John R. Williams, was charged by bill of information with the crime of simple burglary, in violation of La.R.S. 14:62. Defendant pleaded guilty to the offense, and was sentenced to serve nine years at hard labor in the custody of the Department of Corrections.

On appeal to this Court, defendant argues that his guilty plea was not freely and voluntarily given, and that he should therefore be permitted to withdraw it. A review of the record indicates that the trial judge examined defendant extensively as to the voluntariness of his plea in accordance with the precepts of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969). However, defendant alleges that because he was examined together with two other defendants, a subtle pressure was exerted upon him to “go along” with them in pleading guilty.

No motion to withdraw the guilty plea was ever filed by defendant, nor has he perfected an assignment of error for this appeal. We recently held that the voluntariness of a guilty plea is not an error discoverable on the record. State v. Knighten, 320 So.2d 184 (La.1975). Therefore, the alleged error is not reviewable on appeal.

For these reasons, the conviction and sentence are affirmed.

       Nevertheless, an inspection of the record convinces us that defendant’s allegations are without merit. Following a comprehensive explanation of the rights waived by pleading guilty, each defendant was questioned individually and at great length to determine the voluntariness of his plea. Furthermore, this defendant’s guilty plea was entered prior to those which are said to have influenced his decision.


author: CALOGERO, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Wilbert “Honky” WINSTON.
    No. 56995.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Reuvan N. Rougeau, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Wilbert “Honky” Winston was charged by grand jury indictment with distribution of heroin in violation of La.R.S. 40:966(A). After trial by jury, the defendant was found guilty as charged and was sentenced to serve the remainder of his natural life at hard labor. On appeal to this Court, defendant relies upon seven assignments of error for reversal of his conviction and sentence. Finding reversible error in the denial of defendant’s motion for a continuance (Assignment of Error No. 2), we need not consider the other assigned errors.

On February 28, 1975, defendant was indicted by grand jury for distribution of heroin. This act was alleged to have taken place on September 29, 1974 at the Delta Downs Race Track in Calcasieu Parish.

In March 1975, defendant was arrested while in Orange County, Texas, and at that time employed a Texas attorney. Following his transfer to this state’s jurisdiction, in the Fourteenth Judicial District Court for the Parish of Calcasieu, defendant retained a local Louisiana attorney to represent him in his then forthcoming criminal proceedings. This retained counsel represented defendant at his arraignment on April 7, 1975, at which time trial was set for May 12, 1975; he filed several pre-trial motions on behalf 'of defendant.

On Friday, May 9, 1975, an assistant district attorney notified the trial judge that counsel for defendant had withdrawn; the assistant requested that the court appoint counsel to represent defendant. At that time, Reuvan N. Rougeau was called at his office, asked to come down to court, and was appointed. Defendant was not present at that time and Mr. Rougeau did not see defendant until the following Monday, May 12, 1975, the day for which trial was originally scheduled. The only reason which appears in the record before us for the withdrawal of defendant’s retained counsel is a statement in an affidavit attached to a motion for new trial that defendant had a conflict with that attorney who, representing defendant’s wife on charges of distributing heroin on a different date than that of defendant’s alleged actions, was apparently bargaining successfully on her behalf, but was doing little on behalf of defendant.

On May 12, 1975, when defendant appeared in court (along with Mr. Rougeau) he informed the court that he wished to employ counsel of his own choosing. The court told him that he could do so and reset trial for one week later, May 19, 1975. Mr. Rougeau heard nothing further until on or about Friday, May 16, 1975, when defendant notified him that he had been unable to retain counsel and had no choice but to accept representation by Mr. Rou-geau. On Monday, May 19, 1975, the new trial date, Mr. Rougeau, on behalf of defendant, offered a written motion for a continuance arguing that he had been unable to prepare an adequate defense and that he would “need additional time in which to investigate and carry out the necessary procedures required in order to see that the defendant is given a full and fair hearing upon trial of the matter.” After a hearing on the motion, followed by a lunch recess, the trial court ruled as follows:

“The Court has offered the defendant a continuance until Wednesday, May 21, 1975. Counsel for defendant has indicated that that would be of no benefit, and so the Court has denied the motion for a continuance altogether. Counsel for defendant indicated that he is just not ready to try the case today, or Wednesday, and so the Court denied the motion for continuance altogether.”

The trial was begun immediately with the jury selection on the afternoon of May 19, 1975 and with trial beginning in earnest on May 20, 1975. During the trial the state presented only one witness, a narcotics officer with the Calcasieu Parish Sheriff’s Department, who was not the actual undercover agent negotiating the sale involved in the case, but one who purportedly observed the alleged sale. The undercover agent who allegedly purchased the heroin was not put on the stand. Although Mr. Rougeau requested two instanter subpoenas on behalf of defendant after the presentation of the state’s case, neither proved fruitful to defendant and he therefore presented no witnesses.

Article 712 of the Louisiana Code of Criminal Procedure provides as follows:

“A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.”

While the general rule that a trial judge has a large measure of discretion in determining whether or not a continuance will be granted is recognized and respected by this Court, [State v. Carruth, 311 So.2d 866 (La.1975) ; State v. Brewer, 301 So.2d 630 (La.1974); State v. Williams, 262 La. 317, 263 So.2d 306 (1972)], we will not allow the denial of a motion for continuance to stand if it is clear that the trial court exercised that discretion unreasonably. Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case. In the case before us, the main thrust of defendant’s argument is that the decision of the trial court was unreasonable and an abuse of discretion in that defendant was tried on the serious charge of distribution of heroin and was sentenced to life imprisonment when he and Mr. Rougeau, his court appointed counsel, were neither ready to go to trial nor afforded a reasonable opportunity to adequately prepare for trial.

It has long been recognized that the duty of courts to provide counsel for those accused who are financially unable to retain an attorney “is not discharged by an assignment at such a time and under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” (Emphasis added) Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). See also State v. Collins, 104 La. 629, 29 So. 180 (1901). While no minimum period between the appointment of counsel and trial has ever been specified by the court as adequate time to prepare for trial, it has been noted that “the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel.” Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940).

In the case before us, counsel was appointed to represent defendant on May 9, 1975, only 10 days before trial. Actually, appointed counsel did not have those ten days to prepare a defense, for on May 12, 1975, the first time Mr. Rougeau met with his client, defendant requested permission of the court to seek retained counsel and the court informed him that he would be permitted to attempt to do so. In light of these circumstances Mr. Rougeau did not pursue the case any further, apparently neither interviewing defendant nor initiating any type of investigation or search for witnesses. It was only on Friday, May 16, 1975, that Mr. Rougeau was alerted to the fact that he would indeed be representing defendant. Therefore, Mr. Rougeau is actually chargeable with only three days notice, including an intervening Saturday and Sunday, before the trial court denied the motion for continuance and the trial commenced.

It has been frequently recognized that an accused may not discharge or replace original counsel for the purpose of obtaining a postponement of the trial by a claim that the new attorney has not had adequate time for preparation. In particular, this Court has held that while an accused does have the right to counsel of his own choice to defend him on criminal charges, this right does not permit. “arbitrary action which obstructs orderly procedure in the courts” and that the right of an accused to select his own attorney must be exercised at “a reasonable time, in a reasonable manner, and at an appropriate stage.” State v. St. Amand, 274 So.2d 179, 189 (La.1973), quoted in State v. Brewer, 301 So.2d 630 (La.1974). See also United States v. Terry, 449 F.2d 727 (5th Cir. 1971); United States v. Cozzi, 354 F.2d 637 (7th Cir.1965), cert. denied 383 U.S. 911, 86 S.Ct. 896, 15 L.Ed.2d 666 (1966).

In this case, however, the remark by the state at the hearing on the motion for continuance that “[t]his man just doesn’t want to go to trial” is unsubstantiated. While according to defendant’s affidavits attached to motion for a new trial defendant did fire his retained counsel, there is no indication that this was done for purposes of delay. Furthermore, on May 12, 1975, the original trial date, defendant was told that he could attempt to retain new counsel. When he realized he would be unable to do so, defendant got in touch with Mr. Rou-geau and on Friday, May 16, 1975 informed him that he would he needing his representation. But at this time, with only three days, including a Saturday and Sunday, before the May 19, 1975 trial date, Mr. Rougeau had little opportunity to interview or obtain witnesses, or otherwise prepare for trial.

The case before us is clearly distinguishable from recent decisions by this Court holding that trial courts had not abused their discretion in denying motions for continuance. For example, in State v. Navarre, 289 So.2d 101 (La.1974), the record revealed that the attorney originally appointed to represent the defendant had made available to defense counsel all his files on the case; that the two attorneys had had a two hour conference concerning defendant’s case; and that defense counsel had consulted with defendant twice and had interviewed three of the four witnesses. Furthermore, Navarre involved an attempted simple burglary in which defendant was caught red-handed. In State v. Brewer, 301 So.2d 630 (La.1974), the trial took place three weeks after appointment of counsel, and in State v. Smith, 322 So.2d 197 (La.1975), defense counsel represented defendant at his arraignment at which time the trial was scheduled 90 days later.

Here Mr. Rougeau had in actuality only three days to prepare for trial, in a circumstance where the alleged offense took place some eight months before his appointment. The difficulty of searching for witnesses and preparing a defense under circumstances where the crime was allegedly committed months before appointment should be taken into consideration when determining adequate time for trial preparation. Furthermore, Mr. Rougeau, appointed by the court to insure the defendant received a fair trial, repeatedly informed the court at the hearing on the motion for continuance that he was not prepared to go to trial and could not possibly provide a defense for defendant at that time. In this case, where an undercover narcotics officer was involved in the alleged distribution of heroin, and where defendant was not indicted for four months, was not arrested for six months and was not brought to trial for eight months, a request for a continuance of trial for one or two more weeks ■ in order to allow. Mr. Rougeau to prepare an adequate defense was reasonable.

Under the circumstances of this case we find that the refusal of the trial court to grant a continuance was arbitrary and an abuse of discretion. While defendant’s efforts to obtain retained rather than appointed counsel did delay the commencement of trial preparation by Mr. Rougeau, there is no indication that his real intention was to further postpone the criminal proceedings. In fact, defendant did not wait until the May 19 trial date to inform the court that he had been unable to retain counsel, but on his own initiative contacted Mr. Rougeau and, on the Friday before the Monday trial date, informed him that he would be needing his representation at the trial scheduled the ensuing Monday.

If the court had clearly indicated on May 12, 1975, the original trial date, that while defendant had a right to counsel of his own choice, the trial would take place on May 19, 1975 and that defendant should allow Mr. Rougeau to prepare for trial on that date in view of the possibility that defendant would not be áble to retain counsel, the situation would perhaps be different. However, the record before us reflects no clear indication to defendant or to Mr. Rougeau that further continuances would not be allowed. Thus, while we by no means condone actions by defendants which disrupt proper and efficient judicial administration, under the circumstances of this case, and on the record before us, the denial of the motion for continuance constituted reversible error.

For the reasons assigned, the conviction and sentence are reversed and set aside, and the cause is remanded for a new trial.

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

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Under the facts of this case, I find no abuse of the trial judge’s denial of defendant’s motion for a continuance. Accordingly, I respectfully dissent.

      . Apparently defendant himself neither requested appointment of counsel nor alleged that he was an indigent.

      . On oral argument before this Court, Mr. Rougeau stated that he received a telephone call from defendant on Thursday, May 15, 1975, but could not get down to the jail to see him until Friday, May 16, 1975.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Johnny T. JOHNSON, Jr.
    No. 56966.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Alex L. Andrus, III, Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Goudeau, Jr., Dist. Atty., for plaintiff-ap-pellee.
   DIXON, Justice.

Defendant was convicted of armed robbery, a violation of R.S. 14-64, and appeals, raising four assignments of error.

In Assignment No. 1, defendant contends the trial court erred in admitting a typewritten confession because it was not read to him before he signed it. It is' his position that because it was not read back to him there is inadequate assurance that the typewritten version correctly relates the substance of his oral confession.

Investigating officers testified that defendant gave them a statement during which Detective Clinton Beaugh 'took notes. These notes were then typed by the secretary, and the typed confession was presented to defendant for his signature. Though defendant signed the confession, officers could not be sure he read it. Detective Beaugh testified he read the confession to defendant, but he could not recall with certainty whether he read the typed confession or the notes from which the typed confession was made. Officer Gautreáux testified that Detective Beaugh read defendant the typewritten confession. Each person present during the time defendant gave his oral confession testified that the typed confession substantially reflected the oral statement given by defendant.

To be admissible, a confession need not be a verbatim record of defendant’s oral version. State v. Comery, 214 La. 245, 36 So.2d 781 (1948); State v. Goins, 232 La. 238, 94 So.2d 244 (1957).

The trial court heard testimony that defendant gave an oral statement during which Beaugh took notes and that the typewritten confession, confected from those notes, substantially reflected this oral statement. Gautreaux testified it was read to defendant. Beaugh could not be certain. Defendant was given ample opportunity to read it and object to any part he considered inaccurate. Finally, defendant who makes no allegation that he is illiterate, or that coercion was used to obtain his signature, signed it.

We find no merit in this assignment.

In his second assignment, defendant contends that because he did not sign the waiver of rights form his confession is inadmissible.

Lack of a signed, written waiver of rights form is not determinative of the issue of voluntariness of a confession. State v. Singleton, 311 So.2d 881 (La.1975); State v. Navarre, 302 So.2d 273 (La.1974); State v. Neal, 275 So.2d 765 (La.1973).

Each of the three persons present during defendant’s confession testified he was informed of his constitutional rights as required by Miranda. Detective Beaugh testified that when he asked defendant whether he understood these rights defendant responded “yes.” Officer Gautreaux testified that he could not recall defendant’s response but he was certain defendant voiced no misunderstanding. Mr. Otis Lomenick, Jr., legal adviser for the St. Landry Parish sheriff’s office, testified that to the best of his knowledge Beaugh read defendant the Miranda rights befo're questioning was begun. Beaugh further testified that defendant told him he “wanted to get this thing off his mind” prior to giving the officers his oral statement.

No evidence introduced at the motion to suppress even tended to show that defendant was coerced into giving his confession. Hence, from a review of the record before us, we conclude that the trial court did not err in denying the motion to suppress the confession. In spite of the lack of a written waiver of rights, the State met its affirmative burden of establishing the- free and voluntary nature of defendant’s confession imposed by R.S. 15:45.

At oral argument before this court, defendant contended that police did not hon- or his initial request not to speak to them. Rather, he contends, they persisted in questioning him until the confession was obtained.

The record reveals no such persistence. Detective Beaugh testified that defendant did not want to speak to them “the first time,” and he was not compelled to; but that “the second time” he did want to speak to them. It was during this “second time” that the confession was given. During the motion to suppress, defendant introduced no evidence to substantiate this claim.

This assignment has no merit.

Defendant neither briefs nor argues his third assignment of error to this court; hence it is waived. State v. Reed, 324 So.2d 373 (La.1975); State v. Coleman, 322 So.2d 195 (La.1975).

In his fourth and fifth assignments, defendant alleges that a pistol and stocking introduced at trial were inadmissible because they were by-products of the allegedly inadmissible confession. Because the confession was admissible, these contentions have no merit.

The conviction and sentence are affirmed.

      . “Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”


author: TATE, Justice.

text:
    CITY OF NEW ORLEANS, Appellee-Respondent, v. John WALKER, Appellant-Relator.
    No. 56731.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Bruce G. Reed, Reed, Reed & D’Antonio, Metairie, Broderick A. Bagert,
    Bagert & Bagert, New Orleans, for defendant-relator.
    J. Stuart Douglass, Asst. City Atty., Philip S. Brooks, City Atty., for plaintiff-respondent.
   TATE, Justice.

The defendant was convicted in the New Orleans Traffic Court of violating a municipal ordinance. His conviction was affirmed by the Appellate Division, Criminal District Court of Orleans. We granted certiorari, 319 So.2d 452 (La.1975), to review his contention that these courts had erroneously denied his motion to quash the prosecution, since founded on an invalidated ordinance.

The ordinance in question, Section 38-110, Municipal Code, City of New Orleans prohibited driving a vehicle while intoxicated. Both the present offense and the overruling of the motion to quash, as well as the trial court. conviction, all occurred during 1973 at a time when a state statute mandatorily required all prosecutions arising out of the operation of a vehicle while intoxicated “shall be charged and prosecuted solely under the provisions of La.R.S. 14:98”, i. e., under the state statute prohibiting similar conduct, La.R.S. 13:1894.1 (1970).

As noted by us in City of Baton Rouge v. Mahnken, 260 La. 1002, 257 So.2d 690, 691-692 (1972) : “The main purpose of [Revised Statute] 13:1894.1 was to require the prosecution of DWI offenses under the state statute (R.S. 14:98), so that second and subsequent offenders can be prosecuted as such. In order to accomplish this end the legislature by enacting R.S. 13:1894.1 made illegal all city and parish ordinances proscribing acts made illegal by La.R.S. 14:98. In effect, the legislature has said that La.R.S. 14:98 pre-empts the field of DWI legislation, which it has authority to do. City of Alexandria v. La Combe, 220 La. 618, 57 So.2d 206 (1952) s}c * ‡ ”

No substantial contention is advanced that this general state law did not su-percede and invalidate any municipal ordinance of New Orleans inconsistent or in conflict therewith. See La.Constitution of 1921, Article XIV, Section 22 (1950) (authorizing a home rule charter): “The City of New Orleans shall, however, not exercise any power or authority which is inconsistent or in conflict with any general [state] law.” See also La.Const. of 1974, Art. 6, Section 5(E), prohibiting the exercise of local powers “denied by general law.”

The ordinance under which the accused was convicted was therefore invalidated and ineffective as in conflict with the general state statute pre-empting the field. McAllister v. City of New Orleans, 255 La. 405, 231 So.2d 368; see also City of Alexandria v. La Combe, 220 La. 618, 57 So.2d 206 (1952).

Consequently, the motion to quash was erroneously denied. The prosecution must be dismissed. La.C.Cr.P. art. 538.

In arguing to the contrary, the state principally relies upon City of New Orleans v. Harrison, 257 La. 923, 244 So.2d 834 (1971). There, however, we held only that the traffic court could not be deprived of its constitutional jurisdiction, under a very technical holding that the defendant’s motion to quash in that case had been directed solely to the court’s lack of jurisdiction, not to the invalidity of the municipal ordinance. We specifically noted that no issue was raised as to the validity of the municipal ordinance, 244 So.2d 835.

Therefore, as we subsequently noted in City of Baton Rouge v. Mahnken, 260 La. 1002, 257 So.2d 690, 692 (1972), the Harrison case did not address itself to the present issue, and its holding is restricted to its peculiar facts of a pleading which did not raise the issue presented by the motion to quash in the case before us.

Accordingly, the conviction and sentence are set aside, the defendant’s motion to quash is sustained, and prosecution is dismissed.

Reversed; prosecution dismissed.

SUMMERS, J., concurs.

      . Section 38-110. Operating a vehicle while intoxicated.

        Operating a vehicle while intomeated is the operation of or having under his actual physical control any motor vehicle, aircraft, watercraft or other means of conveyance by a person under the influence of intoxicating liquor or beverages, or narcotic drugs; or under the influence of any drug that affects adversely the efficiency of the driver.

      . La.R.S. 13:1894.1 (enacted by Act 233 of 1970) relevantly provides: “Notwithstanding any other provision of law to the contrary, including the provisions of R.S. 13:1871, on and after July 29, 1970 all prosecutions in any city, parish or municipal court based on or arising out of the operation of a vehicle-by a person while intoxicated shall be charged and prosecuted solely under the provisions of R.S. 14:98. * * *”
      We note that La.R.S. 13:1894.1 was amended by Acts of 1973 No. 82, Section 1, to, in part, except the Traffic Court of New Orleans from the provisions of the statute. However, the defendant was convicted on March 20, 1973, prior to the effective date of Act 82. The amendment excepting New Orleans courts from this Article’s provision was in response to this court’s decision in City of New Orleans v. Harrison, 257 La. 923, 244 So.2d 834 (1971), discussed in the text below, which pinpointed the inability of the Traffic Court to try state offenses because of limits upon its jurisdiction provided by the La.Constitution of 1921, Article 7, Section 94 II (1952). By the 1974 constitution, this provision was removed from constitutional status and made subject to change by legislation. Article 5, Section 32; it is now incorporated in our statutes as La.R.S. 13 :2501.1 (1975).