author:
TATE, Justice.

      DIXON, Justice DENNIS, Justice, CUTRER, Justice ad hoc, SUMMERS, Chief Justice

text:
    STATE of Louisiana, Appellee, v. Alphonse BROWN, Appellant.
    No. 63025.
    Supreme Court of Louisiana.
    April 9, 1979.

      Bernard Jack Usprich, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., G. Michael Grosz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   TATE, Justice.

The defendant Brown was convicted of possession of heroin with intent to distribute, and sentenced to life imprisonment at hard labor.

The principal issues raised upon his appeal relate to: I. Evidentiary rulings in the hearing on his motion to suppress the heroin as seized unconstitutionally, and the denial of this motion (Assignments of Error Nos. 1, 4, 5, 6, and 8); and II. The admission into evidence on the trial of the merits of irrelevant and prejudicial evidence relating to the “Detroit Profile” of suspected drug carriers (Assignment 7).

We affirm the trial court’s denial of the motion to suppress (Part I of the opinion below), but we reverse the conviction because of the admission of irrelevant and grossly prejudicial evidence (Part II below).

I. The Motion to Suppress

The two issues involved in the review of the denial of the motion to suppress concern (a) an evidentiary ruling permitting evidence relating to the drug courier profile and (b) the claim that the motion to suppress was erroneously denied because the drug was seized from the accused as the result of an illegal investigatory stop.

Assignments of Error Nos. 1, 4, & 5 (Motion to Suppress)

Defendant contends the trial court erred in admitting evidence relating to the drug courier profile at the hearing on the motion to suppress.

During cross-examination of one of the officers who arrested defendant at the New Orleans International Airport, the state asked the witness to explain the use of drug courier profiles, and to describe those characteristics of the profile which defendant exhibited while under surveillance at the airport. The witness fully complied without objection by defendant. On redirect, however, when the state indicated that it wanted to go into the profile again, defendant objected to any of the evidence relating to the profile being admitted into evidence (Assignment of Error No. 1). During cross-examination of another of the arresting officers, defendant twice objected to state questions involving the officers’ use of the drug courier profile. The trial court overruled the objections both times (Assignments of Error Nos. 4 & 5).

It is now well established that the mere fact that a defendant’s behavior while under surveillance at the airport correlates with various elements of a drug courier profile does not by itself provide reasonable cause to stop and detain him for questioning. State v. Washington, 364 So.2d 958 (La.1978); State v. Matthews, 366 So.2d 1348 (La.1978). However, it does not follow that such factors are to be wholly disregarded in determining whether reasonable cause exists. Components of the profile, and defendant’s conformance thereto, may be considered, along with other relevant information known to the officer, in evaluating whether he had reasonable cause to stop and detain a defendant. United States v. Smith, 574 F.2d 882 (6th Cir. 1978); United States v. Pope, 561 F.2d 663 (6th Cir. 1977). It was therefore admissible at the hearing on the motion to suppress, in order to show reasonable cause for the stop, in conjunction with the other more particularized information as to the accused’s criminal conduct.

Assignments of Error Nos. 6 & 8 (Motion to Suppress)

Defendant contends the trial court erred in denying his motion to suppress physical evidence. He argues that the investigatory stop was illegal, thereby tainting his consent to the search and the evidence obtained as a result of that search. Alternatively, defendant argues that his consent to the stop search was ineffective since it was obtained as a result of an illegal arrest.

The testimony at the hearing on the motion to suppress revealed the following facts:

On May 5, 1977, Officer Richard Dennis of the Jefferson Parish Sheriff’s Office received a tip from a confidential informant that a 24-27 year old black male by the name of Alphonse Brown would be flying into the New Orleans International Airport the next day from Los Angeles carrying a quantity of heroin. The informant described defendant as a full-bearded black male with a short bush haircut, about 6'1" in height, 200-240 pounds, wearing a three-piece tan or cream colored suit, and sporting a gold tooth in the front of his mouth.

As a result of having received this information, Officer Dennis arrived at the airport designated at about 3:00 a. m. on May 6 in order to maintain a surveillance of all flights coming in from Los Angeles. At about 7:30 that morning, two federal drug enforcement agents joined him in the surveillance.

At approximately 2:30 p. m. of that day, defendant was observed arriving on a nonstop flight from Los Angeles. The three officers noted that defendant, who fit the description provided by the informant, was the last passenger to disembark. Following defendant down the concourse to the baggage area, the agents further noted that defendant appeared nervous, repeatedly looking over his shoulder and from side to side. At the baggage area, the agents observed defendant retrieve one small suitcase.

As defendant was leaving the area, the agents approached and stopped him. They identified themselves as police officers and asked defendant for his driver’s license and airplane ticket. These were produced, the license in the name of Alphonse Brown, and the ticket in the name of Joseph Brown.

Defendant was then asked to accompany the agents to an office on the third floor of the airport for further questioning. On the way to the office, defendant was told that he was suspected of carrying narcotics in his suitcase. Defendant replied that he did not have any narcotics, but only some “herbs” in the suitcase. Upon being asked whether he meant marijuana, defendant responded affirmatively.

Subsequently, defendant gave his consent to a search of the suitcase, although there is a conflict in testimony as to when this consent was given. One officer testified that defendant’s consent was given on the third floor en route from the elevator to the office; another officer stated that defendant consented to a search inside the office. In any event, the search of the suitcase disclosed a quantity of heroin concealed within a container of Johnson’s Baby Powder.

The Fourth Amendment to the Federal Constitution protects people against unreasonable searches and seizures. It is well established in this regard that a law enforcement officer has a right to temporarily detain and interrogate a person whom he suspects is committing, has committed, or is about to commit a crime. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Robinson, 342 So.2d 183 (La.1977); State v. Perique, 340 So.2d 1369 (La.1976). We have held that reasonable cause for an investigatory stop is something less than probable cause. Nevertheless, it requires that the detaining officers have articulable knowledge of particular facts which, taken together with rational inferences therefrom, provide reasonable grounds to suspect the detainee of criminal activity.

We have recognized that an informant’s tip can provide a police officer with reasonable cause to detain and question a suspect. State v. Wilson, 366 So.2d 1328 (La.1978); State v. Sims, 350 So.2d 1189 (La.1977); State v. Robinson, 342 So.2d 183 (La.1977); State v. Perique, supra; State v. Dixon, 337 So.2d 1165 (La.1976); State v. Mims, 330 So.2d 905 (La.1976). Informants’ tips vary greatly, however, in their value and reliability, rendering impossible one simple rule to cover every situation. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

In determining whether reasonable cause exists, we utilize “the same criteria of trustworthiness required for the showing of the greater degree of probability of criminal conduct necessary to justify an arrest.” State v. Wilson, supra. Thus, in either situation, the reliability of both the informant and his information must be satisfactorily demonstrated, or, if the tip is inadequate under this standard, it may be deemed sufficiently trustworthy on the basis of corroboration by independent sources. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Richards, 357 So.2d 1128 (La.1978); State v. Marks, 337 So.2d 1177 (La.1976).

In State v. Washington, supra, officers observed defendant disembark from a flight originating in Los Angeles, behave in a nervous manner, make a telephone call, and approach the baggage counter without claiming his luggage. We held that these actions, commonly cited as elements of a drug courier profile, did not furnish reasonable cause to detain a person for questioning.

In State v. Matthews, supra, officers observed that defendant fit three elements of the drug profile: he disembarked from a flight from Los Angeles, acted nervously, and had only one piece of luggage. Moreover, the agents had received an informant’s tip describing generally a number of persons suspected of transporting heroin into New Orleans from the West Coast. The description of one of the suspected male couriers was of a thin black male about 5'8" tall. We held that the officers had no reasonable cause to stop defendant, noting especially that the tip was so vague and inclusive that it would describe virtually every young black person arriving from the West Coast.

The instant case is distinguishable from our decision in Matthews. Rather than describing generally and vaguely a number of persons, the tip in the instant case involved solely a detailed and particularized description of a single individual. Defendant was described as a black male about 6'1" tall, 200-240 pounds, full-bearded, wearing a short bush hairstyle, a gold tooth in the front of his mouth, and a three-piece tan or cream colored suit. Additionally, his name was given as Alphonse Brown; furthermore, the informant indicated that defendant was to arrive in New Orleans on May 6.

This information was fully corroborated by the agents at the airport. Moreover, while following defendant to the baggage area, the agents observed that he arrived on a non-stop flight from a drug source city, behaved nervously, and carried limited luggage. This information was sufficient to justify the temporary stop by the officers of defendant for questioning.

Defendant further contends that even if this court holds the initial stop to be valid, the subsequent search of his suitcase based upon his consent was not valid. He argues that by escorting him to a private office the officers in effect arrested him without probable cause, thereby tainting his consent to the search.

We do not agree. In the first place, we find that the officers’ action in requesting defendant to accompany them to the office did not constitute an arrest. United States v. Oates, 560 F.2d 45 (2d Cir. 1977); United States v. Salter, 521 F.2d 1326 (2d Cir. 1975). Thus, defendant’s consent given at this time was not tainted by an illegal arrest. In any event, defendant admitted prior to giving his consent to the search and en route to the third floor office, to having marijuana in his suitcase. This ripened the reasonable cause to detain and question into probable cause to arrest and search.

For the foregoing reason, we hold that the judge did not err in denying defendant’s motion to suppress the evidence. Accordingly, these assignments of error are without merit.

II. Trial on the Merits

Assignment of Error No. 7 presents reversible error. It relates to certain evidence admitted over objection at the trial on the merits. The evidence concerned the so-called “Detroit Profile” used by narcotics agents in arresting suspected drug traffickers arriving at airports.

In the state’s opening statement, the prosecutor referred to evidence to be submitted to the jury concerning a federal narcotics agent with the specific duty at the airport of “watching passengers arrive and depart on airplanes, looking at them to determine whether or not they fall into the category known as the ‘Detroit Profile’ . [which] is composed of thirteen elements whereby they view passengers as they come off of planes to determine whether they meet any of the points in the profile, and if they determine that a passenger falls within that category, it’s possible that that person will be stopped for questioning in order to ascertain if they are carrying any type of narcotics.”

The defense objected to this argument and reiterated its objection (first made at the motion to suppress heard outside the jury’s presence) as to the admissibility of this type of evidence. The trial court overruled the objection and made it general as to evidence thereafter to be introduced.

At the trial on the merits, two federal agents were called, apparently to testify specifically as to the use of the Detroit Profile in detaining persons suspected of being couriers in the drug traffic, as well as to their participation in the arrest.

As we noted in Part I of this opinion, evidence as to the Detroit Profile may be relevant in determining whether, with additional particularized information, there is reasonable cause to stop a person to question him as to a possible drug offense. However, we are unable to see how such evidence is relevant to any issue of innocence or guilt at the trial on the merits.

La.R.S. 15:441 provides: “Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

At the trial on the merits, the legality of the stop resulting in seizure of the heroin is no longer at issue. On the denial of the motion to suppress, the evidence seized is admissible and the alleged illegality of the seizure is irrelevant for purpose of the trial of innocence or guilt.

As will be elaborated, the circumstance that the accused on arriving at the airport shared certain of the characteristics (nervousness, etc.) of other persons suspected of engaging in the drug traffic is completely irrelevant to the issues of the prosecution, i. e., whether he possessed the heroin, and did so with intent to distribute it.

The federal Drug Enforcement Agency has developed a drug courier profile, commonly called the “Detroit” profile, to aid them in identifying suspects as drug couriers. The profile consists of thirteen characteristics, e. g., arrival from a source city, nervousness, a limited amount of luggage, use of an alias, one-way tickets being used, relatively short period of time between departure and arrival, etc.

The essential irrelevance of this testimony to innocence or guilt is illustrated by the testimony of one of the two federal agents who testified. See also footnote 5, for the other agent’s testimony.

The testimony essentially concerned why the narcotics officers stopped the accused for questioning, whereas the issues on the merits were whether the accused possessed the heroin and did so with intent to distribute it. Nevertheless, Agent Fuller testified at length concerning the profile, see, e. g., Tr. 71-72:

“A. My function is to work along with the Drug Enforcement Administration and the work is what is called the airport detail, using what is known as the Detroit Profile.
Q. What does that consist of?
A. Well, it deals with narcotic trafficking from various cities into this city, and we are out there to arrest people for narcotics from these source cities. * * *
Q. Now, have you ever had to go to any particular school with regards to the Detroit Profile?
A. I think there is a school for the Detroit Profile.
Q. Is that special education?
A. Yes, sir.
Q. What does that consist of?
A. Well, it’s a one day deal and they explain the profile to you and how it came about.
Q. How was this used at the airport?
A. It is used to arrest heroin traffickers. $ * *

Under cross-examination, Agent Fuller testified again as to his learning the characteristics of the Detroit Profile in his one day of schooling and attempted to tick off the thirteen points of the profile. However, when asked what points he observed about Brown when he got off the plane, he admitted that he had identified him immediately on the basis of the informant’s description, Tr. 77, and he failed otherwise to specify any relevance of the testimony to the stop — even assuming that the reason for the airport stop, at which time heroin was discovered in the defendant’s baggage, was relevant under the circumstances to the issues tried on the merits.

In Part I of this opinion, we cited the uniform jurisprudence that the Detroit Profile — an estimation on an unshown basis by narcotics agents that drug couriers (along with many innocent travelers) often exhibit certain characteristics of behavior in arrival at airports — -does not by itself serve as a reasonable basis to believe that any particular traveler might be guilty of criminal conduct. For similar reasons, it is even less probative of or relevant to the determination of the innocence or guilt of the traveler of a criminal offense charged.

The apparent reason of the state for introducing the profile at the trial on the merits illustrates the reversible prejudice caused by its admission: To prove possession of heroin with intent to distribute, the state (improperly) sought by evidence of the Detroit Profile to imply that the defendant was part of a national network of drug distributors.

The circumstances of the accused’s arrest at the airport may well be relevant for such purpose. However, the reasons for the airport stop — that drug couriers (along with many innocent people) often exhibit nervousness and carry little or no luggage on arrival (and have some ten other characteristics not shared by the accused) — is irrelevant to and not probative of that issue.

The record in this case doe not contain any showing, other than the agent’s statement on an unsupported basis, that the “Detroit Profile” is reliable evidence that any considerable proportion of air travelers sharing its characteristics are drug couriers. Nor do we find the profile to have any more validity as proof of this defendant’s criminal activity or criminal intent than, for instance, his race, dress habits, personal appearance, persons with whom he associates, or other personality traits or behavior characteristics which he might (or might not) share with drug couriers as well as innocent travelers.

We find that evidence as to the Detroit Profile — that drug couriers when they arrive at an airport often behave like the defendant is alleged to have behaved, insofar as nervousness, etc. — simply does not tend to prove that this defendant is guilty of the offense charged, nor does it explain any relevant fact with regard to guilt or innocence. That others believe to be drug couriers arrived with little or no baggage, were nervous on arrival, etc. (see footnote 5) simply does not tend to prove that this defendant was a drug courier.

Moreover, the evidence was imper-missibly prejudicial. By the narcotic agents’ emphasized and reiterated testimony on the subject, the state improperly suggested to the trial jury the agents’ “expert” determination that the accused was indeed a drug courier (although their testimony was essentially based only on other persons who were drug couriers (along with innocent travelers, behaved similarly upon arrival at an airport).

Decree

Accordingly, while we affirm the trial court’s denial of the motion to suppress the drugs seized, we reverse the conviction and sentence, and we remand for a new trial in accordance with law.

REVERSED AND REMANDED.

DIXON, J., concurs with reasons.

DENNIS, J., concurs with the decree but dissents from the approval of the denial of the motion to suppress.

CUTRER, J., concurs in part and dissents in part and assigns reasons.

SUMMERS, C. J., dissents in part and concurs in part for the reasons assigned by CUTRER, J.

DIXON, Justice

(concurring).

I respectfully concur, disagreeing with the discussion of Assignments of Error Nos. 6 and 8.

The police have a right to speak to anyone. The First Amendment of the United States Constitution gives them that right. No one to whom the police speak is required to answer. The Constitution gives such person the right to remain silent.

The Constitution does not permit a “temporary detention” by police (in the absence of life-endangering circumstances) without probable cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), concerned only with a pat-down for weapons while a policeman attempted to question a suspicious character, neither helps nor hurts any theory of this case:

“The crux of this case, however, is not the propriety of Officer McFadden’s taking steps to investigate petitioner’s suspicious behavior, but rather, whether there was justification for McFadden’s invasion of Terry’s personal security by searching him for weapons in the course of that investigation. . . . ” 391 U.S. at 23, 88 S.Ct. at 1881, 20 L.Ed.2d at 907.

The record here, however, does not show that defendant was detained against his will until he admitted possessing marijuana. Defendant was not required to answer any questions of police, nor did the law require that he stop. He chose to answer, and he stopped without protest. When he admitted possession of marijuana, the police had cause to arrest. If defendant had attempted to avoid the police unsuccessfully, State v. Saia, 302 So.2d 869 (La.1974), would have protected him from the fruits of such police-initiated confrontation. There is no evidence that defendant exhibited more than a mild reluctance to talk to the police.

The police may question, and in life-threatening circumstances like those in Terry v. Ohio, supra, and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), they may pat-down for weapons for their protection, but nothing gives police at airports the right to “temporarily detain” a suspected courier of contraband and force him to go to a police office and subject himself to a search.

Here, however, before the police could do more than explain their purpose, defendant admitted the possession of marijuana. Therefore, I agree that the motion to suppress was properly denied.

DENNIS, Justice,

concurring in part, dissenting in part.

I join fully in the majority’s reversal of the defendant’s conviction and sentence and the reasons assigned therefore. However, I respectfully disagree with the majority’s af-firmance of the trial court’s denial of the motion to suppress. The majority opinion is clearly correct in its conclusion “that the Detroit Profile — an estimation on an uns-hown basis by narcotics agents that drug couriers (along with many innocent travelers) often exhibit certain characteristics of behavior in arrival at airports — does not by itself serve as a reasonable basis to believe that any particular traveler might be guilty of criminal conduct.” But it is difficult to understand how the arrival from Los Ange-les, in accordance with a “tip”, of “a full-bearded black male [heroin courier named Alphonse Brown] with a short bush haircut, about 6'1" in height, 200-240 pounds, wearing a three-piece tan or cream colored suit, and sporting a gold tooth” supplies the deficiency. The only thing the confirmation of the tip shows is that the tipster knew what Brown looked like and knew that he boarded a plane for New Orleans. It seems clear that the tip by itself would not have furnished reasonable grounds to suspect a person of criminal activity. There is nothing to show how the tipster knew that Brown was carrying heroin.

How then can combining the tip with an observation that Brown possessed a few of the drug courier profile characteristics produce a reasonable basis for suspicion or good cause to stop him for questioning? It would seem that the majority’s holding now makes it possible for unreliable tipsters in the Los Angeles airport to provide officers in other cities reasonable cause to stop and question large numbers of passengers by simply forwarding by telephone particularized descriptions of each passenger bearing some resemblance to the Detroit Profile.

CUTRER, Justice ad hoc,

dissenting.

I respectfully dissent, although recognizing the persuasiveness of the majority opinion. I disagree with the holding that, while evidence as to the Detroit Profile is relevant, along with additional information, to establish reasonable cause to stop a person to question him as to a possible drug offense, such evidence is irrelevant as to the issue of guilt or innocence at the trial on the merits.

LSA — R.S. 15:441 provides:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offence and the intent.
“Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

The State has the duty to prove each element of the crime charged beyond a reasonable doubt. One of the essential elements of the crime charged herein is guilty knowledge.

“. . . Guilty knowledge is an essential ingredient of the crime of possession of a controlled dangerous substance. State v. Porter; 296 So.2d 302 (La.1974). Whether the accused knew the substance was a narcotic drug is a matter of proof by direct or circumstantial evidence. (State v. Perique, 340 So.2d 1369 (La.1976))

The exhibition, by the defendant, of Detroit Profile characteristics would be relevant for the purpose of establishing the element of guilty knowledge. Such evidence, considered by the jury along with the other facts, may assist the jury in making a decision on this issue. In the case of State v. Giles, 253 La. 533, 218 So.2d 585 (1969), this court, in discussing the problem of relevancy, made the following observation:

“As we pointed out recently in State v. Stokes, 250 La. 277, 195 So.2d 267 (1967) when evidence is proffered and a dispute arises concerning its relevancy, the court should determine whether there is a logical or rational connection between the fact which is sought to be proved and the fact which is at issue in the case. See also 1 Jones on Evidence § 153 (1958). And there is a need in such cases to distinguish relevancy from the weight or probative value of the proffered evidence. The evidentiary fact offered does not need to have strong, full, superlative value, or to produce persuasion by its sole and intrinsic force, but it is sufficient if it is worth consideration by the jury. Wig-more on Evidence, § 27, p. 231 (1923).
“In such cases, where the State relies upon circumstantial evidence to sustain the prosecution, the rules relating to the admissibility of evidence are to some extent less rigidly applied. La.R.S. 15:438. This practice prevails in order that every circumstance, however remote, which may tend to shed light upon the issue in the case, may be heard by the trier of fact and entered into the record. State v. Stokes, supra, and State v. Jackson, 153 La. 517, 96 So. 53 (1923).”

Even though evidence of Detroit Profile characteristics may be circumstantial and may not have strong, full, or superlative value, it is sufficiently relevant to be considered by the jury in making its determination of guilty knowledge.

I therefore dissent from the majority opinion which holds that such evidence is not relevant.

SUMMERS, Chief Justice

(dissenting).

While I agree that the trial judge properly denied defendant’s motion to suppress, I cannot agree with the reversal of this conviction because the “Detroit Profile” testimony was irrelevant. In this latter respect, I join Justice ad hoc CUTRER in the reasons he assigns for dissent.

       Judge Cecil C. Cutrer of the Louisiana Court of Appeal, Third Circuit, participated in this decision as an Associate Justice ad hoc.

      . Associate Justice ad hoc Cutrer is the author of this portion of the opinion (Part I).

      . We did not hold, however, that elements of the profile could not be considered at all in evaluating reasonable cause. Although the characteristics of the profile may not alone be enough to provide reasonable grounds to stop, they may be considered, along with other relevant information known to the officers, in determining whether reasonable cause to stop exists. See Assignments of Error Nos. 1, 4, & 5, supra.

      . Our holding in this regard is supported by the recent decision of State v. Ballard, 573 F.2d 913 (5th Cir. 1978), involving similar facts. In that case, as in this one, agents stopped defendant based upon a tip from a confidential informant which purported to describe defendant’s physical appearance; and also based upon the fact that defendant exhibited four elements of the drug courier profile. The court declared that the stop was unconstitutional, but only because the tip as to a black male courier, even with the profile characteristics did “not in any significant way operate to distinguish [the defendant] Ballard from the general public,” 573 F.2d 916. Here, however, the informant’s tip as to a particularized description of an arriving courier was corroborated by the agents’ observations of an arriving passenger meeting the detailed description furnished by the informant.

      . Certain cities from which large amounts of narcotics are trafficked are referred to as source cities, e. g., Chicago and Los Angeles.

      . For a complete list of elements in the Detroit profile, see United States v. Ballard, 573 F.2d 913 (5th Cir. 1978).
      In testifying that the accused Brown met three of the characteristics of the profile (he arrived on a non-stop flight from Los Angeles, he was nervously looking around when he arrived, and he had limited luggage, i. e., a small suitcase), federal drug agent Donald testified, Tr. 82-83:
      “The Detroit Profile consists of thirteen items, which our office in Detroit developed in order to help us spot narcotics couriers. One is a person that would be traveling from a source city, a narcotics source city; traveling under an alias; using light luggage or no luggage at all; usually a short trip, let’s say, nothing longer than one day and then coming back the next day; use of a telephone when they first get off of the plane; a one way ticket as opposed to a round trip ticket; paying for the ticket in cash; buying a ticket with small bills — and there are a couple of other ones, which slip my mind right now.”

      .See, Tr. 76:
      “I don’t recall them all — I didn’t say. But, one is nervousness; a small amount of luggage; a one way ticket; the ticket paid for in small bills; a one way ticket paid for with cash; making a phone call after deplaning; use of an alias — I don’t recall the rest.”

      . Even if we were convinced of the relevance of the profile as evidence of the fact sought to be proved by its admission into evidence (and consequently, of its relevance to the issue of guilt), the evidence should be inadmissible as unduly prejudicial, because any limited probative value it might have would be outweighed by the chance that the jury would be unduly influenced to convict the defendant based upon personality traits and behavior characteristics rather than actual proof of the crime charged.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Milton Eric DICKINSON and John L. McNemar, Jr.
    No. 63141.
    Supreme Court of Louisiana.
    April 9, 1979.

      Emile M. Weber, Weber & Weber, Baton Rouge, for Milton Eric Dickinson.
    D. Bert Garraway, Baton Rouge, for John L. McNemar, Jr.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for the State.
   CALOGERO, Justice.

Defendants, Milton Dickinson and John McNemar, were tried pursuant to a four count indictment charging them jointly with the attempted aggravated rapes and aggravated kidnappings of two young women. The jury found both defendants guilty as charged on all four counts. The court imposed on Dickinson consecutive life sentences for the aggravated kidnappings, and two forty year sentences for the attempted aggravated rapes, the two rape sentences to run concurrently with each other and with the first life sentence for aggravated kidnapping. McNemar was given life sentences for each of his aggravated kidnapping convictions and five year sentences for each of his attempted aggravated rape convictions, all four sentences imposed to run concurrently. In seeking reversal of his convictions and sentences, Dickinson argues to this Court seven of the twelve errors assigned in the lower court. In support of his appeal, McNemar urges seventeen of the twenty-three errors asserted on his behalf.

One of the more serious issues presented upon this appeal concerns the claim that the court erroneously allowed joint trial of the two counts charging the February, 1976, kidnapping-attempted rape of one woman with the two counts charging the same offenses against another woman in February, 1977 (Dickinson’s assignment one, McNe-mar’s assignments nine and seventeen). Two other serious issues are whether the court improperly restricted the defense’s voir dire examination of the prospective jurors (Dickinson’s assignment two, McNe-mar’s assignments two and four) and whether the trial judge abused his discretion by denying a recess sought when a subpoenaed defense witness became ill and was unable to appear and testify (McNe-mar’s assignment twenty-four).

Louisiana Code of Criminal Procedure article 493 governs joinder and provides:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

The record in this case amply establishes parallels between the two jointly tried criminal episodes sufficient to indicate that the transactions are strikingly similar. Therefore, the question of the propriety of joint trial of charges arising out of similar criminal transactions separated by a year chiefly resolves itself into an inquiry of whether the criminal transactions here are so separated by the passage of time that their character as crimes of the same modus op-erandi is impaired or destroyed.

Crimes exhibiting identical modus operandi may be tried simultaneously, even in the face of defense objection, when evidence thereof is mutually admissible as “other crimes” evidence, that is, when the offenses are sufficiently similar, when they tend to be relevant to a genuine issue, and when the prejudicial effect of their admission does not outweigh the probative value. See State v. Carter, 352 So.2d 607 (La.1977). While it is true that this Court has often discussed modus operandi crimes in terms of the proximity in time of the offenses considered, there is no absolute requirement of close proximity and no compelling reason why lapse of time, in and of itself, should govern whether two or more crimes qualify as crimes exhibiting the same modus oper-andi for purposes of admissibility under R.S. 15:446. Crimes may properly be said to exhibit the same modus operandi when they are so distinctively similar as to virtually establish that their perpetrator was the same individual. See State v. Mitchell, 356 So.2d 974 (La.1978). Here, men fitting fairly distinctive physical descriptions abducted girls in substantially the same manner, took them to dwellings virtually certain to have been the same residence, and exhibited behavior and mannerisms astonishingly similar in many important respects. The lapse of time between the two criminal offenses does not arguably alter the near certainty of identity of assailants in these instances. Therefore, the two crimes exhibiting the same modus operandi would be mutually admissible in separate trials, provided each is relevant to prove a fact of consequence to each accuseds’ guilt or innocence and, further, that the probative value of the “other crimes” evidence outweighs its prejudicial effect. See State v. Mitchell, supra at 979.

The distinct similarities between the criminal episodes bear heavily upon a seriously disputed issue, identity. The introduction of “other crimes” evidence to prove the identity of the perpetrator of the crime being tried has been recognized as a legitimate exception to the general prohibition against the introduction of evidence of other criminal acts, provided the identity issue is actually disputed. See, e. g. State v. Sutfield, 354 So.2d 1334 (La.1978). Because there were alibi defenses presented by both accuseds, because one of the perpetrators (identified by each victim as McNemar) attempted to shield his identity during the commission of each offense, and because one of the victims had difficulty making a positive line-up identification of Dickinson (a year had passed since her abduction and Dickinson had gained weight), the state put the “other crimes” evidence to legitimate use in its efforts to prove each criminal episode. The virtually identical modus op-erandi lent support to the identifications of Dickinson and McNemar by the victims. Ability of both victims to positively identify Dickinson’s apartment as the place of the sexual assaults further assured the defendants’ convictions. In this case, the “other crimes” evidence had legitimate purpose and overriding probative value. Thus, the trial judge’s denial of the severance sought was not error. These assignments lack merit.

During voir dire, by means of questions the trial judge deemed hypothetical, Dickinson’s counsel asked whether, this being a rape case, prospective jurors would “. . . feel like he [defendant] ought to prove it a little bit stronger that it wasn’t him” in a situation where the victim and the defendant would both take the stand. Because the inquiry assumed a situation where both victim and accused would testify, the query was ruled improperly hypothetical and defense was precluded from addressing it to other prospective jurors. Counsel for both defendants urge that the court erred when it foreclosed further use of the inquiry which was calculated to provide a basis for the intelligent exercise of the right to challenge for cause and the constitutionally guaranteed right of peremptory challenge.

It appears that the question defense sought to propound was not the kind of hypothetical question our jurisprudence prohibits. In State v. Clark, 325 So.2d 802 (La.1975), it is noted that questions which seek the prospective jurors’ opinion concerning evidence to be presented at trial or seek to obtain a pre-trial commitment on the issues based on facts which may be established at trial are not permitted. Such is not the nature of the question the defense here sought to ask. However, even error consisting of improper curtailment of the scope of the defense’s voir dire examination in this particular case is not of reversible proportions since examination of the entire voir dire satisfies us that sufficiently wide latitude was afforded the defense in delving for answers which would bear upon the prospective jurors’ ability to apply the presumption of innocence. See State v. Monroe, on rehearing, 329 So.2d 193 (La.1976). We thus conclude that both Dickinson’s and McNemar’s second assignments are without merit.

In his fourth assignment McNemar outlines another instance of curtailment of voir dire and argues that in connection therewith the court committed reversible error. During voir dire examination of a panel of prospective jurors, when McNemar’s counsel was assertedly preparing to delve into an inquiry relating to a prospective juror’s kinship with a law officer and the effect that relationship might have on the juror’s ability to fairly judge he asked that juror, “. . . you heard the court talk about reasonable doubt. What does reasonable doubt constitute to you? Could you tell us in your own words what reasonable doubt is?” The judge disallowed that inquiry (because it sought to have a prospective juror define a legal principle, when the duty to instruct the jurors as to the law was his).

Regardless of the purpose of defense counsel’s inquiry, whether he sought to discover bias flowing from this juror’s association with police officers, from personal disagreement with the stringent burden placed upon the state to prove its case, or from some other source, it is clear that a criminal defendant ought to be allowed wide latitude in his attempts to discover jurors’ subtle or subconscious attitudes by seeking responses which will reveal nuances felt to bear upon his impartiality and ability to accept the law as given to him. See State v. Hayes, 364 So.2d 923 (La.1978). Nevertheless, McNemar’s counsel’s straightforward question seeking to have the prospective juror say (albeit in his own words) what constitutes reasonable doubt is not the only way to exercise the right to inquire into a juror’s subconscious inclinations or predispositions. Much like the inquiry in State v. Crochet, 354 So.2d 1288 (La.1978), where defense counsel attempted to have prospective jurors express their concept of reasonable doubt in terms of a percentage of proof, an answer to the inquiry had the potential of confusing or misleading those who ultimately would be responsible for trying the case, especially where (as here) the trial judge had not already instructed on reasonable doubt.

Under these circumstances, and because the voir dire examination as a whole reveals that McNemar’s counsel was permitted other inquiry in the area of the effect a relationship with a law officer might have on a juror’s inclinations, we are not prepared to say that there existed curtailment which undermined the defendant’s constitutional rights to voir dire and peremptory challenges. The circumstances of this case are distinguishable from those present in State v. Hayes, supra, where defense sought to explore the subtleties of the jurors’ attitudes toward the presumption of innocence only after the judge had explained the legal meaning of the presumption and defense counsel had painstakingly reiterated the legal standard. Language set forth in our opinion in State v. Kelly, 367 So.2d 832 (La.1979) is applicable here: “No explanation of applicable legal principles was given this prospective juror prior to defense counsel’s inquiry; at that point the prospective juror was uncoun-seled, and possibly even unaware of what her role as a juror would be.” For the reasons stated, we determine that the assignment lacks merit.

The final issue requiring separate treatment involves the trial judge’s denial of a recess. A subpoenaed defense witness, Richard Beech, became ill and was unable to appear and testify. He had been present in court on a number of days prior to the time he was called to testify. When McNe-mar sought to produce the testimony he could not secure the witness’ presence because Beech had been diagnosed as having measles and was quarantined in the parish jail. McNemar’s counsel moved for a continuance, but the trial court declined to allow any delay in the trial.

Actually the delay McNemar’s counsel sought is properly denominated a recess, it having been sought mid-trial. This improper labelling in no way prejudices the defendant; we have considered such a mid-trial motion “. . . more properly a motion for a recess . . . which need not be in writing or comply with the formal requisites of a motion for a continuance.” State v. Mizell, 341 So.2d 385, 386 (La.1976).

Nevertheless, we conclude that the defendant McNemar was not prejudiced by the denial of the motion seeking recess until Beech could be present to testify. We conclude on the basis of the record that McNe-mar’s attorney did not show an actual need for the presence of the witness. While arguing the motion counsel conceded that just the evening before he had notified the court that he no longer intended to call Beech to testify. We are mindful that even when a pre-trial postponement is sought on the basis of the absence of a witness, the motion seeking the delay must not only state the facts to which that witness is expected to testify but show the testimony’s materiality and the necessity for the presence of the witness at trial. C.Cr.P. art. 709.

Furthermore McNemar’s counsel did not establish for the record that Beech’s testimony would have materially supported the defense or undermined any element of the state’s case. By Beech’s testimony McNemar sought to show that Beech appeared in two line-ups with him and that in one of these identification procedures Beech was chosen by a woman who viewed the show-up; such testimony would be of little help when, as here, neither Beech nor McNemar were able to say that the line-up at which this identification of Beech took place was the one viewed by the two women who are the victims in this case. (Because of a cheesecloth-like drop or curtain which separated the stage on which the line-up participants stood from the audience section from whence victims and witnesses viewed those on stage, neither Beech nor McNemar could see the woman said to have identified Beech.) Accepting the showing of defendant McNemar that there were two line-ups in which both he and Beech participated, and in view of the unshaken testimony of the two victims in this case that they viewed only one line-up (which testimony was corroborated by the state’s police officer witnesses who participated in the investigation of these crimes), it is not unreasonable to conclude (as even defense counsel apparently did when he decided to forego presenting Beech’s testimony) that Beech’s testimony would fall far short of establishing that the line-up about which Beech was to testify was that which was viewed by the victims in this case. Accordingly, the trial judge did not abuse the large discretion he has in ruling on a motion for recess. See State v. Charles, 350 So.2d 595 (La.1977). This assignment of error is without merit.

Other Assignments

The other assignments presented, which the court has determined are lacking serious merit, are set forth briefly in the following discussions.

The defense claim that the court erred in denying a mistrial sought when the judge admonished counsel with a threat of contempt is without merit. Mistrial is a drastic remedy warranted only when error substantially prejudices the defendant. The record fails to demonstrate such prejudice flowing from the exchange between the court and counsel which culminated in the threat of sanction. (Dickinson’s Assignment No. 3)

The court is asserted to have erred in denying the defense access to taped statements of the victims made prior to trial. A pre-trial conversation between the defense counsel and the district attorney was initially urged to have revealed discrepancies in descriptions of the perpetrators which alone would have cast doubt on the veracity of the victims’ trial testimony. However, defense finally conceded that only the tape’s contents would reveal whether there was in fact some exculpatory evidence. There was no showing that there were discrepancies such as would mandate the disclosure of the statements by the prosecution. This assignment is without merit. (Dickinson’s Assignment No. 7)

The argument that other crimes evidence (evidence of a kidnapping of another woman, apparently not connected with the offenses which are the subject of this appeal) was improperly elicited by the state during cross-examination of Dickinson and during rebuttal is without merit. The evidence was introduced to impeach Dickinson’s trial testimony bearing upon a seriously contested issue at trial. Its probative value outweighed its prejudicial effect because it could only properly be used for impeachment purposes and not as substantive evidence to prove the commission of the crime it admitted. In a case of this nature, where credibility is such a crucial issue (as it is conceived to be in most rape cases) and where impeachment is invited by testimony of the defendant, such highly relevant evidence is not erroneously admitted. (Dickinson’s Assignments Nos. 10 and 11)

The jury instruction illustrating the legal concept of “anything of value” was not an impermissible comment on the facts of this case. Basing its instructions on the rationale and holding of State v. Felton, 339 So.2d 797 (La.1976) the court instructed that forcing sexual activity through threats for purposes of attaining sexual gratification satisfied the “anything of value” requirement which forms a part of the elements of the crime of aggravated kidnapping. By this instruction the court merely sought to comply with the requirement of Article 802 of the Code of Criminal Procedure that the judge charge the jury as to the law applicable to the case. (Dickinson’s Assignment No. 12)

The defense claims that the court erred in granting the state’s motion for continuance of McNemar’s trial. It is urged that the delay in trial violated the constitutional right to a speedy trial. The court did not abuse its discretion in granting the continuance. The state’s interest in continuing McNemar's trial in order that joint trial with Dickinson could be had was entirely legitimate. The delay is not shown to have improperly prejudiced McNemar. (McNemar’s Assignments Nos. 1 and 5)

The court did not err in denying McNemar’s challenge for cause of a prospective juror whose cousin had been a rape victim some years prior to the trial of this case. Taken as a whole the voir dire examination of the prospective juror amply supports the trial judge’s conclusion that she could fairly and impartially serve, notwithstanding her relationship with one who had previously been a victim of the crime of rape. (McNemar’s Assignment No. 7)

The trial court is asserted to have improperly admitted into evidence photographs of the apartment at which the rapes occurred. The photographs were relevant evidence in the case of the 1976 rape, notwithstanding they reflected changes in the apartment since the time of that rape (having been taken in 1977), because they corroborated portions of the first victim’s account of the crime. The admission of the photographs was not erroneous. (McNe-mar’s Assignments Nos. 12, 13, 15 and 16)

McNemar’s argument that the court erred in denying numerous motions for mistrial and severance, predicated on the frequent clashes which occurred between the court and counsel for co-defendant Dickinson, is without merit. Only if these exchanges deprived defendant of a fair trial would they warrant reversal. Our review of the exchanges reveals that they provide no basis for the drastic remedy of mistrial or for the severance sought. (McNemar’s Assignments Nos. 3, 14, 18 and 19)

The defense claims that a mistrial and a severance he sought were warranted by Dickinson’s counsel’s reference to a search of McNemar’s apartment. The argument is unavailing. The reference was not to another crime and there was no indication that any evidence was seized as a result of the search. Admonition, had it been sought, may have been in order but the argument that the remark entitled McNemar to a mistrial or a severance is without substantial merit. (McNemar’s Assignment No. 20)

Decree

For all of the foregoing reasons, the convictions and sentences of the defendants, Milton Dickinson and John McNemar, are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Third Circuit participated in this decision as an Associate Justice Ad Hoc.

      . Dickinson and McNemar presented an alibi-type defense in connection with the charge of the 1977 abduction and assault. McNemar also presented an alibi defense for the 1976 incident. Thus, identity of the perpetrators became a distinct issue at trial.

      . Interestingly, at another point in the voir dire examination, the defense recognized the prospective jurors’ unfamiliarity with legal concepts (in this instance the presumption of innocence) and requested that the court instruct more fully on that difficult legal principle.

      . Under the definitions set forth in Article 708 of the Code of Criminal Procedure “[a] continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.”

      . Reminded by the court that he had communicated this change of plans at the close of trial the evening before, McNemar’s counsel merely stated for the record that he had changed his mind.


text:
    STATE of Louisiana v. Charles Gene HEADS.
    No. 63311.
    Supreme Court of Louisiana.
    April 10, 1979.
    Rehearing Denied May 21, 1979.

      Wellborn Jack, Jr., Jack & Jack, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Charles Gene Heads was charged by grand jury indictment with first degree murder. Upon trial by jury, he was found guilty as charged. After a sentencing hearing, the jury recommended life imprisonment without benefit of probation, parole or suspension of sentence. That sentence was subsequently imposed by the trial court. Defendant has appealed his conviction and sentence relying on twenty-three assignments of error which are presented in fourteen arguments.

Defendant, a resident of Houston, Texas, traveled to Shreveport in search of his wife and children who had left their home in Houston to stay with the wife’s sister in Shreveport. After unsuccessfully attempting to communicate with his wife by telephone, defendant went to his sister-in-law’s home. When he was refused entrance, he kicked open a carport door, entered, and found his sister-in-law’s husband, the victim, in the hall armed with a pistol. After being ordered to leave the premises, the defendant opened fire with a .22 caliber pistol. Whenjthat gun was empty, he went out to his car, obtained an automatic rifle,' re-entered the house, and resumed firing. One of the shots from the rifle hit the victim, killing him.

ARGUMENT NO. 1

ASSIGNMENT OF ERROR NO. 12

By this assignment defendant contends that the trial court erred in denying his motion for a mistrial in which he argued that certain remarks made by the prosecutor during his closing argument were so prejudicial that they denied defendant a fair trial.

This assignment arose when the prosecutor stated to the jury that the evidence presented of defendant’s good character could not rebut conclusive evidence of guilt of first degree murder. The prosecutor then went on to review the character testimony that defendant had presented in his defense. When he discussed the testimony of one witness who had stated that he had never heard defendant’s reputation discussed, the prosecutor stated that the fact that this witness had never heard negative remarks about defendant did not constitute an affirmative statement of good reputation. In an attempt to illustrate that point he gave the following example:

“This does not relate to this case. But, as an example, had anybody ever heard anything bad of Mr. Berkowitz, the Post Office Worker, the Son of Sam killer? No. Everybody liked him. They were surprised that he did such a horrible thing. Remember the films? These are common sense things. You can see these things. You have seen them before. The man that killed the six children was liked by his neighbors, had a regular job. A few months ago everybody was shocked.”

Defense counsel objected to the remark and moved for a mistrial. It was denied.

In brief defendant argues that the reference to the “Son of Sam” killer was an improper response to the evidence of defendant’s good character and that the implied similarities between that killer and defendant inflamed the jury. Additionally he argues that the prosecutor by that statement referred to alleged facts not in the record but of which he implied that he had personal knowledge.

The scope of closing argument in Louisiana is governed by La.Code Crim.Pro. article 774 which provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.”

Although the prosecutor’s statements were comments on the probative value of the character evidence presented by defendant and the conclusions that should be drawn from this testimony, it is questionable whether these statements fall within the permissible scope of Article 774. But even if these comments were impermissible, their use does not necessarily constitute reversible error. Before this Court will reverse a conviction on the basis of improper argument, it must be convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Collins, 359 So.2d 174 (La.1978); State v. Lee, 340 So.2d 180 (La.1976).

In the instant case the remarks were neither detailed nor extensive. The reference was made during a clearly permissible argument concerning the value of and the weight to be given the character testimony presented by the defense. Moreover, the prosecutor preceded the illustration of his argument with the admonition that “[t]his does not relate to this case. But as an example. . . . ” Nor did the prosecutor’s statements express his personal belief that defendant was guilty based on facts not in evidence. The prosecutor did not imply that he knew certain facts relating to the instant case which were not in the record and which demonstrated defendant’s guilt. Rather, he referred only to the facts of that highly publicized case in an attempt to illustrate his argument on character evidence. And, under the circumstances we do not find that the jury was influenced by the statements and that the comments contributed to its verdict. This argument therefore does not present reversible error.

ARGUMENT NO. II

ASSIGNMENTS OF ERROR NOS. 6, 13, 14 AND 15

These assignments arose when defense counsel requested that the trial court charge the jury that it could not return a verdict of first degree murder unless the state proved beyond a reasonable doubt that a manslaughter was not committed. The trial court, although allowing defendant to include such a statement in his closing argument, refused to give the requested charge stating that the general charge included a correct statement of the law on this issue.

Defendant in brief argues that the failure of the trial court to give the special instruction resulted in a shift in the burden of proof to defendant, which relieved the state of its asserted burden of proving beyond a reasonable doubt that a manslaughter was not committed. He argues that under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Due Process Clause requires that the special charge be given. In that case, the U. S. Supreme Court struck down a Maine statute which was interpreted by state courts to require a defendant to establish by a preponderance of the evidence that he acted in the heat of passion in order to reduce murder to manslaughter.

Unlike the Maine statute struck down in Mullaney, Louisiana’s statutory scheme for homicide does not shift the burden of proving passion to the defendant. See e. g. State v. Peterson, 290 So.2d 307, 311 (La.1974) in which this Court stated that “ ‘passion’ may be inferred by the jury from the evidence adduced upon trial by the State, there being no requirement in our law that these factors be affirmatively established by the defendant.”

By refusing to give the requested special charge, the trial judge did not as defendant argues, shift the burden of proof to the defendant. The general charge contained a definition of first degree murder and its possible responsive verdicts, including manslaughter. The trial judge carefully instructed the jurors that the state had the burden to prove each essential element of the crime charged and that the presumption of innocence relieved the defendant from the necessity of any proof whatever. Additionally the trial judge correctly stated the law on reasonable doubt. We find that the trial court’s refusal to give the special charge was not error. This assignment therefore lacks merit.

ARGUMENT NO. VI

ASSIGNMENT OF ERROR NO. 20

By this assignment defendant contends that the trial court erred in overruling his. objection to a portion of the court’s general charge to the jury. Defendant contends that by reference to a presumption that a defendant intends the natural and probable consequences of his acts, the trial court relieved the state of its burden to prove an essential element of the crime, i. e. specific intent.

The disputed portion of the instruction was included in the trial court’s general charge in regard to criminal intent. The trial judge stated: “A man is presumed to intend the natural and probable consequences of his acts.” This statement was taken from R.S. 15:432 which provides:

“A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it pre-ex-isted; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; that the person in the unexplained possession of property recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would not have aided him; that the witnesses have told the truth.” (Emphasis added)

To determine whether his instruction was erroneously included we must consider the judge’s charge as a whole. The ruling of a trial judge on an objection to a portion of his charge will not be disturbed unless the disputed portion when considered in connection with the remainder of the charge is shown to be erroneous and prejudicial. State v. George, 346 So.2d 694 (La.1977). More particularly, we have held that where a general intent charge was given in a case requiring proof of specific intent, the erroneous inclusion of that instruction was harmless error where specific intent was also charged and the full general charge fairly informed the jury of the requisite intent to be proved by the state. See State v. Anderson on rehearing, 343 So.2d 135 (La.1977).

The defendant in this case was charged with first degree murder which requires as an essential element the “specific intent to kill or inflict great bodily harm.” The trial judge read to the jury the first degree murder statute as a part of his general charge and carefully instructed the jury relative to the state’s burden in proving each essential element of the crime beyond a reasonable doubt. In addition he instructed the jury relative to specific intent, its formation, and its proof by surrounding circumstances. Because the disputed portion of the charge was general in nature and was preceded and followed by accurate instruction relative to specific intent, we can not find that the instruction taken as a whole created any confusion in the minds of the jurors as to the requirement that the state prove specific intent. This assignment lacks merit.

ARGUMENT NO. XII

ASSIGNMENT OF ERROR NO. 11

During the prosecutor’s closing argument the victim’s daughter who was seated in the courtroom began crying. Defense counsel moved for a mistrial and after the jury was excused explained that his motion was based on the fact that the young girl after being escorted from the courtroom cried out “Oh my daddy! Oh my daddy!” Defendant argued that because the girl had testified earlier in the trial, the jurors knew she was the victim’s daughter and that her emotional outburst created an atmosphere which precluded a fair trial. The trial court denied the motion but admonished the jurors after they returned as follows:

Ladies and gentlemen, I wish at this time to admonish you that you are to disregard any sounds, comments, or anything of any nature that you may hear inside or outside of this courtroom. You are to listen to the arguments of counsel and their recitation of what they believe the facts may have shown, their interpretation of what the law may be, and listen to my charges and then decide the case based on the facts that you find from evidence received in this trial and only received in this trial, in the form of testimony or physical evidence that was ordered admitted into evidence.

Defendant in brief contends that even if this incident did not prejudice defendant, it, combined with other assignments, prevented his having a fair trial.

Although defendant does not base his motion for a mistrial on any specific code provision, it seems to fall within La.Code Crim.Pro. article 775 which provides:

“A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.”

This Court has consistently held that when conduct does not fall within the mandatory mistrial provisions of La.Code Crim. Pro. article 770, the trial judge has the discretion to determine whether the activity or comments complained of so prejudiced the defendant that he could not receive a fair trial. State v. Domangue, 350 So.2d 599 (La.1977). In denying the motion for a mistrial, the trial judge stated that he did not observe the young girl crying and that when she did leave the courtroom only her back was visible from where the jurors sat. He further stated that although he heard the girl’s cries after she left the room, there was no loud disturbance within the courtroom itself. When the jurors returned, the judge admonished them that they were to disregard any sounds that they had heard either in or out of the courtroom and that they were to decide the case only on the evidence received in the trial.

Mistrial is a drastic remedy and, except in instances in which the mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant depriving him of a fair trial. State v. Overton, 337 So.2d 1058 (La.1976). The trial judge fully admonished the jurors that they, were not to consider the incident. Further, he was satisfied that the defendant was not prejudiced by it. Therefore we can not find that the trial judge abused his discretion in denying the motion for a mistrial. This assignment lacks merit.

ARGUMENTS NOS. Ill, IV, V, VII, VIII, IX, X, XI, XIII, XIV

ASSIGNMENTS OF ERROR NOS. 17, 18, 19, 21, 3, 4, 9, 10, 2B AND l

We have reviewed these assignments and conclude that none present reversible error.

Decree

For the foregoing reasons the sentence and conviction of defendant are affirmed.

AFFIRMED.

      . The trial court need not give a requested special charge if it is included within the general charge. La.Code Crim.Pro. art. 807.

      .These assignments are as follows:
      17. The court erred in overruling defendant’s objection to jury instructions concerning the definition of reasonable doubt.
      18. The court erred in instructing the jury on the law of self-defense.
      19. The court erred in instructing the jury that intent need not be proved as a fact. 21. The court erred in instructing the jury that its decision must be unanimous.
      3. The court erred in overruling defendant’s motion for a mistrial made in response to a prejudicial remark made by the court in the presence of the jurors.
      4. The court erred in overruling defendant’s motion for a mistrial made in response to the court’s reprimanding defense counsel.
      9. The court erred in overruling defendant’s motion for a mistrial which complained of the cumulative effect of the prejudicial conduct of the court.
      10. The court erred in overruling defendant’s objection to the introduction of gruesome photographs into evidence.
      2(B) The court erred in sustaining the state’s challenge for cause of fifteen jurors on the grounds that they would not vote for the death penalty.
      1. The court erred in overruling defendant’s motion to quash the petit jury venire and in excusing numerous jurors from jury duty. 23. Not argued.


author: PER CURIAM.

text:
    STATE of Louisiana v. Curtis JACKSON.
    No. 64460.
    Supreme Court of Louisiana.
    April 19, 1979.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Judith Lombardino, Asst. Dist. Atty., for plaintiff-relator.
    William J. O’Hara, III, Supervising Atty., New Orleans, James Bonfiglio, Student Practitioner, for defendant-respondent.
   PER CURIAM.

Defendant Curtis Jackson was charged by bill of information with simple burglary, a violation of La.R.S. 14:62. On April 17, 1979, his case came to trial and a jury of six was selected in conformity with law. La. Const.1974, Art. I, § 17; La.C.Cr.P. art. 782. Prior to the opening statements of counsel, the trial court called a recess in order to assess the impact of Burch v. Louisiana, - U.S. -, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), a decision which the United States Supreme Court had handed down that morning. On the following day, the state filed a request for a special jury instruction advising the jury that a unanimous verdict would be required to convict or acquit defendant. The trial court denied the request and the state applied to this Court for a writ of review, which we now grant.

Burch v. Louisiana, supra, held unconstitutional, as violative of the defendant’s Sixth Amendment right to a jury trial, the provision of the Louisiana Constitution that “[a] case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict,” Article I, Section 17 (emphasis supplied). The decision, while upholding the validity of the six person jury, requires a unanimous verdict in cases tried by that mode. Accordingly, the instruction requested by the state was correct and should be granted.

The ruling of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.


text:
    STATE of Louisiana v. Leon GAINES.
    No. 63685.
    Supreme Court of Louisiana.
    April 19, 1979.
    Clayton M. Perkins, Jr., Kilbourne & Dart, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Leon Gaines was charged by grand jury indictment with simple escape, a violation of La.R.S. 14:110. On October 9, 1978, he was tried before a twelve person jury which found him guilty of attempted simple escape. Thereafter, the court sentenced him to serve two and one-half years at hard labor. On appeal he urges two assignments of error.

The subject offense occurred entirely within the confines of Angola State Penitentiary: although defendant escaped from the custody of a prison guard, he was recaptured on the penitentiary grounds. Over defendant’s objection, the trial court instructed the jury that the crime of escape could be completed by a departure from “the place of confinement and the lawful custody of an officer of the Department of Corrections” without actually leaving the prison grounds. Defendant contends that actual departure from the penitentiary is essential to the completed offense and that the instruction was therefore erroneous. Without reaching the merits of the question, we find that any error was harmless. The defense successfully presented its argument to the jury, as the verdict of attempted simple escape reflects. Consequently, the instruction complained of did not influence the verdict and defendant was not prejudiced by it.

Additionally, we find that the sentence of two-and-one-half years’ imprisonment was not excessive under the circumstances of this case.

Accordingly, defendant’s conviction and sentence are affirmed.


author: TATE, J.,

text:
    STATE of Louisiana ex rel. Herman DOUGLAS v. Hon. Paul J. CARMOUCHE.
    No. 64271.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Herman Douglas Applying for Writ of Mandamus, Parish of Caddo # 260-682.

Denied. Premature.

TATE, J.,

concurs. The properly verified affidavit of indigency was not completed and the petition properly filed until April 23, 1979. This application is therefore premature.


author: MARCUS, J.,

text:
    STATE of Louisiana ex rel. Lee Autry COOK v. Harry L. SHANEEN, President for Sara, Inc., at Dixon Correctional Institute.
    No. 64458.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Lee Autry Cook, applying for Writ of Mandamus, (Parish of East Baton Rouge, Number unknown).

Writ denied. Relator should furnish the clerk of court with this new address.

MARCUS, J.,

concurs. Relator should have first applied to the court of appeal as this is a civil matter.


author: DENNIS, TATE and MARCUS, JJ.,

text:
    STATE of Louisiana v. Marie WILSON.
    No. 64529.
    Supreme Court of Louisiana.
    May 4, 1979.
   In Re: Marie Wilson, applying for Writs of Certiorari, Prohibition, Mandamus, and for a Stay Order (Parish of Caddo # 110,-586).

Writ denied. The showing made before this court does not warrant the relief requested.

DENNIS, TATE and MARCUS, JJ.,

dissent and are of the view that bond should not have been increased without notice and a hearing.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. George Henry LEE v. C. Paul PHELPS, Secretary.
    No. 64498.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re: George Henry Lee applying for Writ of Mandamus, Parish of Madison (Number not known).

Writ denied.

DIXON, J.,

would grant. This court, without any reason, denies an indigent inmate a copy of a transcript (already prepared) of an evidentiary hearing of a post-conviction hearing because he cannot pay $15 (as “handling and mailing”). The applicant should now apply to the U.S. District Court for relief.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Michael S. PITMAN.
    No. 64146.
    Supreme Court of Louisiana.
    March 9, 1979.
   In re Michael S. Pitman, applying for writs of certiorari, prohibition, mandamus and stay order. Jefferson Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Paul VINCENT v. Frank BLACKBURN, Warden.
    No. 64365.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Paul Vincent applying for remedial writs. Parish of West Feliciana. No. 6736.

Writ granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable William F. Kline, Jr., Judge of the 20th Judicial District, Court for the Parish of W. Felicia-na, to transmit to the Supreme Court of Louisiana, on or before the 11th day of May, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    Charles Ray RIST v. COMMERCIAL UNION INSURANCE COMPANY.
    No. 64330.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Commercial Union Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. 367 So.2d 427. Parish of Webster.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    TRAVELERS INDEMNITY COMPANY v. Milburn J. DUCOTE et al.
    No. 64331.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Travelers Indemnity Co., applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Avoyelles. 368 So.2d 1119.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Giacomina AVEGNO v. Emory BYRD, Jr.
    No. 64385.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Emory Byrd, Jr., applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 367 So.2d 1308.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Errol HICKS and Alpheious Arnett.
    No. 64384.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Errol Hicks and Alpheious Arnett, applying for writ of certiorari. Parish of West Baton Rouge. Nos. 73,366, 73,367, 73,368, and 73,345, 73,347, 73,346.

Writ granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Daniel P. Kimball, Judge of the 18th Judicial District, Court for the Parish of W. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 11th day of May, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Ernest B. GAINEY.
    No. 64121.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Ernest B. Gainey, applying for writs of certiorari, prohibition, and mandamus. Jefferson Parish. No. 78 — 2909.

Writ granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Wallace C. Lebrun, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 11th day of May, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Jerome WEST.
    No. 64562.
    Supreme Court of Louisiana.
    May 3, 1979.
   In re Jerome West applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 261-131.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    HAWTHORNE OIL & GAS CORPORATION et al. v. CONTINENTAL OIL COMPANY.
    No. 64429.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Continental Oil Company applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Yernon. 368 So.2d 726.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    DLJ OF LOUISIANA, # 1 v. GREEN THUMB, INC.
    No. 64462.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re DLJ of Louisiana applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Lafayette. 368 So.2d 463.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana in the Interest of Cheri POCHE, etc., et al. v. David POCHE.
    No. 64439.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re David Poche applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 368 So.2d 175.

Writ denied.


text:
    Harry A. BURGLASS v. Rowena SPENCER et al.
    No. 64441.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Harry A. Burglass applying for writ of certiorari, Fourth Circuit Court of Appeal. No. 9878. Parish of Orleans.

Writ denied.

SUMMERS, C. J., DIXON and CALOGE-RO, JJ., would grant the writ.


text:
    Horatio S. EUSTIS v. Jean-Joseph MOONS.
    No. 64438.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Horatio S. Eustis, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 367 So.2d 1343.

Writ denied.

SUMMERS, C. J. and BLANCHE, J., would grant the writ.


text:
    SECURITY INSURANCE COMPANY OF HARTFORD v. Russell HOLLIDAY, Sr., Glenn D. Rogers.
    No. 64417.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Glenn D. Rogers applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 363 So.2d 246.

Writ denied. We find no error in the judgment of the Court of Appeal. Moreover, the motion for a new trial filed in the trial court on May 12 was not timely.


text:
    James J. KAVALARY and Donald M. Kavalary v. Patricia HANSEN, Wife of/and R. C. Hansen and Arcy, Inc.
    No. 64436.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re James J. Kavalary and Donald M. Kavalary, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. 367 So.2d 1336.

Not considered. It appears the matter is moot since the sub-lessee has vacated the premises and the lease itself has expired by its own terms.


text:
    Jack A. COLTHARP v. Barbara H. COLTHARP.
    No. 64482.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Barbara H. Coltharp, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Madison. 368 So.2d 793.

Writ denied.


text:
    Susyn Weil CAIN and Byron M. Cain v. HANDY CITY, INC., et al.
    No. 64454.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Susyn Weil Cain and Byron M. Cain applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 367 So.2d 1217.

Writ denied.


text:
    Marie Buffa DiROSA v. Louis Anthony DiROSA.
    No. 64465.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Marie Buffa DiRosa applying for Supervisory Writs. Parish of Orleans. No. 583-898.

Writ granted in part and denied in part. Under C.C.P., Art. 1421 et seq. relator is entitled to have deponent Jill Coit answer all of the questions to which her counsel objected except those seeking to learn her educational background, the names of the witnesses present at her marriage to Louis DiRosa, whether she was, at time of deposition, living with a. named individual, and the two questions at pages 18 and 19 of the deposition concerning deponent’s knowledge of the contents of and judgment in the divorce lawsuit. The district court judgment relieving Jill Coit from answering all questions propounded to her during her deposition of December 14, 1978, to which her counsel objected, is refused and it is ordered that she respond to all questions objected to by her counsel at the December 14, 1978 deposition except those referred to hereinabove.

SUMMERS, C. J., MARCUS and BLANCHE, JJ., would deny the writ.


text:
    STATE of Louisiana, ex rel. John SPELLMAN v. Thomas McBRIDE, Judge, 34th Judicial District Court for the Parish of St. Bernard.
    No. 64403.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re John Spellman, applying for writ of mandamus. Parish of St. Bernard.

Granted. The trial court is ordered to act on the habeas application.


text:
    STATE of Louisiana, ex rel. Ronnie SYKES v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 64443.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Ronnie Sykes, applying for writ of mandamus. Parish of Rapides. No. 93072.

Writ granted. The trial court is ordered to rule on relator’s application.


text:
    STATE of Louisiana ex rel. JOHNSON v. William KLINE, Judge.
    No. 64490.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Douglas Johnson applying for remedial writs. Parish of East Feliciana.

Writ granted and transferred to the trial court. The trial court is ordered to rule on relator’s application.


text:
    STATE of Louisiana ex rel. Linda M. GUILLORY v. Honorable Arthur J. PLANCHARD, Judge and Honorable Henry L. Yelverton, Judge.
    No. 64504.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Linda M. Guillory applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. 4507 — 79.

Writ granted. Preliminary hearing ordered. Relator cannot be denied his Constitutional right to preliminary hearing by local rule which would prevent a hearing upon request before grand jury indictment.

SUMMERS, C. J., dissents from order.


text:
    STATE of Louisiana v. Paula DYAN. STATE of Louisiana v. Daphne LOUIS.
    No. 64054.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Paula Dyan and Daphne Louis applying for writs of certiorari and supervisory and/or remedial writs and mandamus. Parish of Orleans. Nos. 84325 and 84326. Magistrate Docket.

Preliminary hearings are ordered in both cases forthwith.


text:
    STATE of Louisiana, ex rel. William DOYLE v. Honorable Israel AUGUSTINE, Judge, Section “I” Criminal District Court, et al.
    No. 64252.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re William Doyle, applying for motion for reconsideration. Orleans Parish. Nos. 243-932 and 242-169.

Denied.


text:
    STATE of Louisiana, ex rel. Robert HARRISON v. Matthew S. BRANIFF, Judge, et al.
    No. 64276.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Honorable Matthew Braniff, Judge, Section B of the Criminal District Court for the Parish of Orleans, applying for Motion for Rehearing. Orleans Parish.

Denied. Our original order transferred the motion to recuse to the district for action. A copy of the motion is attached herewith.


text:
    STATE of Louisiana v. Michael J. DINGER.
    No. 64353.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Michael J. Dinger applying for remedial writ. Parish of St. Mary. No. 78— 2250.

Writ not considered. The application filed by the clerk, inadvertently, we are informed, is incomplete.


text:
    STATE of Louisiana ex rel. James H. FORREST v. Frank BLACKBURN, Warden.
    No. 64401.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re James H. Forrest applying for writ of habeas corpus. Parish of Livingston. No. 2003.

Writ not considered. Relator must first apply to the trial court for relief sought.


text:
    STATE of Louisiana ex rel. Woodrow BARKSDALE v. Frank BLACKBURN, Warden.
    No. 64260.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Woodrow Barksdale applying for writ of certiorari, prohibition, mandamus and habeas corpus. Parish of Orleans. No. 254^966.

Writ denied.


text:
    STATE of Louisiana v. Alfred CUMMINGS.
    No. 64235.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Alfred Cummings, applying for supervisory writ of certiorari. Parish of East Baton Rouge. No. 3-78-305.

Writ denied.


text:
    STATE of Louisiana v. Richard NAAS.
    No. 64340.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Richard Naas applying for writ of certiorari. Parish of Ouachita. No. 38,271.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph Norman SHERER v. Frank BLACKBURN, Warden.
    No. 64388.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Joseph Norman Sherer applying for writ of habeas corpus. Parish of Concordia.

Writ denied.


text:
    STATE of Louisiana ex rel. Shelton LEE v. Hayden J. DEES, Warden.
    No. 64415.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Shelton Lee applying for writ of certiorari, prohibition, mandamus and habe-as corpus. Parish of Orleans. No. 260-411.

Writ denied.


text:
    STATE of Louisiana v. James L. BANKS.
    No. 64488.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re James L. Banks applying for writs of mandamus and certiorari. Parish of Caddo. No. 104,082.

Writ granted. It is ordered that the trial court furnish relator with copy of Boykini-zation at the time the guilty plea entered.

SUMMERS, C. J., dissents.


text:
    STATE of Louisiana v. Rickey Troy BRIDGES.
    No. 64456.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Rickey Troy Bridges applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. ■ No. 36,581.

Writ granted. Trial court ordered to furnish to applicant without charge copy of Boykin examination at time of guilty plea.

SUMMERS, C. J., dissents.


text:
    STATE of Louisiana ex rel. Donald JACKSON v. Matthew BRANIFF, Judge.
    No. 64445.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Donald Jackson applying for writ of mandamus. Parish of Orleans. No. 249— 699.

Writ granted. Trial court ordered to furnish relator copy of Boykin examination at time of guilty plea.

SUMMERS, C. J., would deny the writ.


text:
    STATE of Louisiana ex rel. Leon SMITH v. Lemmie O. HIGHTOWER, Judge.
    No. 64425.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Leon Smith applying for writ of mandamus. Parish of Ouachita. No. 37,-453.

Writ granted. The trial court is ordered to furnish applicant with Boykin transcript.

SUMMERS, C. J., dissents.


text:
    STATE of Louisiana ex rel. George Henry LEE v. 6TH JUDICIAL DISTRICT COURT.
    No. 64173.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re George Henry Lee applying for writ of mandamus. Parish of Madison. No. 78-603.

Writ denied. The mandamus application is moot. See Reasons of Trial Court dated March 28, 1979, in record returned to us.


text:
    STATE of Louisiana v. Douglas KENNEDY.
    No. 64531.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re: Douglas Kennedy applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 79-626

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Henry STERLING v. Ross MAGGIO, Warden.
    No. 64513.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Henry Sterling applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Jerry DYE.
    No. 64509.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Jerry Dye applying for writs of certiorari, mandamus, quo warranto and prohibition. No. 27,019. Parish of Ouachi-ta.

Writ denied. Adequate relief by review after sentence.


text:
    STATE of Louisiana ex rel. John R. JONES v. Honorable Stephen A. DUCZER, Judge.
    No. 64496.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re John R. Jones applying for writ of mandamus. Parish of St. Tammany.

Writ denied. Trial judge acted on relator’s application on April 25, 1979. The matter is moot.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 64495.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re McArthur Johnson applying for writ of habeas corpus, certiorari, mandamus and prohibition. Parish of Bossier.

Writ denied.


text:
    STATE of Louisiana v. Gilbert E. DIXON.
    No. 64489.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Gilbert E. Dixon applying for writs of certiorari, prohibition and mandamus. Parish of West Feliciana. No. W — 74-1-55.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Glendell SHOWERS v. Honorable Charles H. GAUDIN, Judge.
    No. 64483.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Glendell Showers applying for writ of mandamus. Parish of Jefferson.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    Charles BERGERON v. NELSON & EAST FORD COMPANY et al.
    No. 64477.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Charles Bergeron, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 218,868, C/A No. 12,800.

Writ denied.


text:
    STATE of Louisiana, ex rel. Clarence COLE v. C. Paul PHELPS, Secretary, Department of Corrections and Frank Blackburn, Warden, Louisiana State Penitentiary at Angola, Louisiana.
    No. 64473.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Clarence Cole, applying for writs of certiorari, mandamus, prohibition and for habeas corpus. East Baton Rouge Parish. No. 10-74-4563.

Writ denied.


text:
    STATE of Louisiana v. Wendolyn HUNTER.
    No. 64470.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Wendolyn Hunter applying for writs of certiorari, review, prohibition and mandamus. Parish of Natchitoches. No. 50,996.

Writ denied.


text:
    Wayne D. JOINER v. Ora Cripps YOUNGBLOOD et al.
    No. 64466.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Wayne D. Joiner applying for remedial writ. Parish of Rapides.

Writ denied.


text:
    Frank J. NOTO et al. v. STATE of Louisiana, Through the DEPARTMENT OF CULTURE, RECREATION AND TOURISM, J. Larry Crain, Secretary.
    No. 64455.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re State of Louisiana, through Attorney General, William J. Guste, Jr., applying for writs of review. Parish of East Baton Rouge. No. 218,871.

Denied.


text:
    STATE of Louisiana v. Joel Paul VAUGHT.
    No. 64464.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Joel Paul Vaught applying for writ of review, First Judicial District Court. Parish of Caddo. No. 110,537.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana. v. Charles P. HAYDEN.
    No. 64449.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Charles P. Hayden applying for writ of certiorari and/or prohibition. Parish of East Baton Rouge. No. 9-78-375.

Writ denied.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 64446.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Larry Joe Phillips applying for remedial writ. Parish of Orleans. No. 259-425.

Denied.


text:
    STATE of Louisiana v. Joe Nathan WALKER.
    No. 64444.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Joe Nathan Walker, applying for remedial writs. Parish of Ouachita. Nos. 35982 & 33923.

Writ denied.


text:
    STATE of Louisiana v. Billie A. HATFIELD.
    No. 64435.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Billie A. Hatfield, applying for writs of certiorari, review, prohibition and mandamus. West Monroe City Court. Parish of Ouachita. No. S — 78-608.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Karen R. SEXTON.
    No. 64430.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Karen R. Sexton applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. 1920-79.

Denied.


text:
    STATE of Louisiana ex rel. Carolyn L. CLARK v. Honorable Charles A. WARD, Judge.
    No. 64427.
    Supreme Court of Louisiana.
    May 4, 1979.
   In re Carolyn L. Clark applying for writ of mandamus. Parish of Orleans. No. 248— 958.

Writ denied. The Trial Judge acted on relator’s motion to vacate sentence on April 6, 1979. The matter is moot.