author: DENNIS, Justice.

text:
    STATE of Louisiana v. Glenn S. PASSMAN.
    No. 58594.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      James J. Gleason, III, Director, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Patrick J. Berrigan, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On the night of May 26, 1974, two men, claiming they had car trouble and needed to call for assistance, gained entry into the St. Tammany Parish home of Pat O’Brien, a well known night club owner. Once inside one of the men produced a gun and demanded money. A struggle followed in which Mr. O’Brien was seriously wounded and beaten. The intruders, leaving the wounded victim in the kitchen, then began to search the house for a wall safe. In one of the rooms they discovered Mrs. O’Brien and Cara, the O’Brien’s sixteen year old daughter. After searching several rooms in the house the men returned to the kitchen, accompanied by Mrs. O’Brien and Cara, and were fired upon by Mr. O’Brien, who had been able to reach a .22 caliber rifle. The two men fled, taking from the premises two hand guns belonging to Mr. O’Brien.

Subsequently the two men were identified as Walter Burnette and Glenn Scott Passman, and both were charged with armed robbery. La.R.S. 14:64. Separate trials were ordered. Glenn Scott Passman, tried by jury in March of 1976, was found guilty of armed robbery, and thereafter sentenced to serve ninety-nine years at hard labor, without benefit of parole, probation or suspension of sentence.

In this appeal, defendant Glenn Passman relies on twenty-nine of thirty-one assigned errors. Assignments numbers one and four, having been neither brief nor argued, are regarded as abandoned. State v. Wientjes, 341 So.2d 390, 391 (La.1976).

ASSIGNMENT OF ERROR NO. 2

During voir dire examination defense counsel asked prospective juror Walter Foulks whether he would be able to consider defendant’s guilt or innocence, without being influenced by whether the defendant took the stand in his own behalf. When Mr. Foulks replied that he might be influenced by this fact, “according to how bad the case went against him or for him,” counsel inquired whether he felt he could follow the judge’s instruction not to consider this fact in weighing the defendant's guilt. To this inquiry Mr. Foulks responded: “I may have trouble and I may not.” Counsel moved to excuse Mr. Foulks for cause, on the authority of La.C.Cr.P. art. 797(4).

Counsel’s challenge for cause was ultimately rejected by the court, and an objection noted. It is this ruling which defendant assigns as error. Counsel thereafter exhausted his peremptory challenges prior to completion of the jury panel. La.C.Cr.P. art. 800.

Before ruling on counsel’s motion to challenge Mr. Foulks for cause, the trial judge questioned him as follows:

“THE COURT:
“If the Court instructs you that you are not to take into consideration the fact that he didn’t take the stand, that is the law of this State, could you accept that as the law and follow it in the jury room?
“MR. FOULKS:
“Yes, sir.
“THE COURT:
“Do you feel you could do that, even though—
“MR. FOULKS:
“I would accept it as the law. Yes, sir.
“THE COURT:
“And put it out of your mind, the fact of your belief that the man should tell his side?
“MR. FOULKS:
“Yes.
“THE COURT:
“You could do that?
“MR. FOULKS:
“I believe I can do it. Yes, sir.
“THE COURT:
“Don’t tell me you believe you can. Do you think you can?
“MR. FOULKS:
“I believe—yeah. I believe so.”

We have repeatedly held that the trial judge is vested with broad discretion in ruling on challenges for cause, and only where it appears, upon review of the voir dire examination as a whole, that the judge’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will this Court reverse the ruling of the trial judge. State v. Weathers, 320 So.2d 895 (La.1975); State v. O’Conner, 320 So.2d 188 (La.1975); State v. Frazier, 283 So.2d 261 (La.1973); State v. Willis, 262 La. 636, 264 So.2d 590 (1972).

A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, where subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Governor, 331 So.2d 443 (La.1976); State v. Nix, 327 So.2d 301 (La.1976); State v. Johnson, 324 So.2d 349 (La.1976).

The instant case is distinguishable from that of State v. Nolan, 341 So.2d 885 (La.1977), therein we found an abuse of discretion in the trial court’s refusal to excuse a prospective juror for cause, where the jur- or’s voir dire testimony revealed not only a predisposition in favor of the State and its witnesses and against the defendant and his witnesses which was not dispelled by retractions elicited by the court and the district attorney after “considerable coaching,” but also, that the juror exhibited an “[injability to grasp the questions propounded [to her],” indicating a lack of competency to understand and apply the law.

When taken as a whole, Mr. Foulks’ testimony on voir dire does not support defendant’s contention that the judge’s ruling constituted an abuse of discretion and reversible error.

This assignment of error is therefore without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant, in this assignment of error, complains that the trial judge improperly denied his request for a change of venue. Defendant, in his written motion, alleged that extensive media coverage of the crime made it impossible for him to secure an unbiased jury, and consequently made a fair trial impossible.

In State v. Bell, 315 So.2d 307 (La.1975), this Court set forth the following factors to be considered in determining whether to change venue:

“ * * * (1) [T]he nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.” 315 So.2d at 311.

Other factors we regard as relevant to this inquiry include:

“ * * * The degree to which the publicity has circulated in areas to which venue could be changed, the care exercised and the ease encountered in the selection of the jury, the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors, and the peremptory challenges and challenges for cause exercised by the defendant in the selection of a jury. See, generally, Annotation 33 A.L.R.3d 17 (1970).” State v. Berry, 329 So.2d 728, 730 (La.1976).

This Court, applying these principles, rejected precisely the same argument raised by Passman’s co-participant, Walter Bur-nette, in the course of his appeal, State v. Burnette, 337 So.2d 1096, 1098-99 (La.1976), and it is not insignificant that Burnette’s trial took place several months before Pass-man’s — closer in point of time to the date of the offense, and presumably while the community’s initial sense of outrage over the crime was more intense than it was at the time of Passman’s trial.

Our review of the evidence adduced at the March 23, 1976 hearing on the motion for change of venue, coupled with our examination of the jurors’ responses to questioning on voir dire, leads us to the conclusion that defendant was not entitled to a change of venue.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 5, 10 and 11

Defendant complains in these assignments of error of what he characterizes as “prosecutorial misconduct.” In the defendant’s view, the prosecutor' throughout the trial sought to belittle, ridicule, degrade and discredit the defendant and his witnesses, making them out to be “hostile, lying, vicious people, through manners, words, tones of voice or through the employment of inflammatory phraseology” in order to create prejudice in the mind of the jury, and thereby to defeat defendant’s right to a fair trial.

In assignment of error number five defendant argues that the trial court erred in overruling his objection to the following question, asked by the prosecutor of Pat O’Brien the robbery victim, who had moments before made an in-court identification of the defendant as one of his assailants:

“Is there any doubt in your mind but that this man sitting right there with that maroon coat [Passman], the man glaring at me, was the man in your house that night?” (Emphasis supplied.)

Counsel objected to the question as “argumentative,” reasoning that the district attorney’s “baiting techniques” were an improper method of examination; his objection was overruled.

In assignments numbers ten and eleven defendant argues that the trial court erred in allowing the State’s attorney to badger and harass defendant’s witnesses. In each case it appears clear that the State’s attorney was attempting to lay a foundation for subsequent impeachment of the witnesses’ testimony. Defendant does not contend that the questioning itself was improper— rather his argument is that the technique of questioning was improper. The State’s attorney cross-examined Mr. Hampton Burris, an alibi witness, who had testified on direct examination that on May 26, 1974 Passman had been with him and others in Mississippi until 6:00 or 6:30 p.m., as follows:

“[THE PROSECUTOR]:
“Q. When you came to the jail, did you discuss with Glenn Passman his trial that was coming up?
“A. No, sir. Didn’t even know about a trial. I mean, I just came in to speak to him.
“Q. You did not discuss the trial or the trip to Mississippi when you visited Glenn Passman in jail?
“Now, I am putting you on your guard, Mr. Burris.

Defense counsel objected on the ground that the questioning was argumentative, and designed to badges the witness; his objection was overruled by the trial judge, who commented, “it is cross examination.”

Finally, as the State’s attorney cross-examined Rhonda Passman, wife of the accused, whose testimony was that he had been with her at the time the robbery took place, the following transpired:

“[THE PROSECUTOR]:
“Q. Did you ever tell them that your mother and Mr. and Mrs. Burris and you were with Glenn Passman on the 24th, 25th and 26th before today?
“A. Yes, I did.
“Q. You told the police that he was with your mother and you and your aunt before today?
“Now, remember what I am asking you. You told the St. Tammany Parish Sheriff’s Office and Steve Raacke that Glenn Passman was in Mississippi with you and your mother and Mr. and Mrs. Burris before today?
“[DEFENSE COUNSEL]:
“Your Honor, I am going to object to the tone of the District Attorney in his cross examination. It is a—
“[THE PROSECUTOR]:
“May it please the Court, my voice is my business and not his.
“THE COURT:
“Wait a minute, Mr. [Prosecutor]:
“[DEFENSE COUNSEL]:
“It is a harassing, badgering technique of cross examination, and it is unethetical [sic] type of cross examination.
“[THE PROSECUTOR]:
“May it please the Court, he cross examines the way he wants and I cross examine the way I want.
“THE COURT:
“All right, Mr. [Prosecutor]. Sit down. I’m going to overrule your objection. The lady is on cross examination.
“[DEFENSE COUNSEL]:
“I would like to object to the Court’s ruling and note it for assignment of error.
“[THE PROSECUTOR]:
“My tone of voice doesn’t reflect on that machine.”

In brief defense counsel argues that in each of these situations the trial court, rather than overruling the objection should have rebuked the State’s attorney and admonished the jury to disregard the prejudicial innuendo of the questioning. We note that such an admonition was never requested by counsel, though, in view of the trial judge’s rulings on each of the objections we are inclined to believe the request would have been futile.

It is not feasible for this Court to review the tone of voice used, and it is impossible to detect the accompanying gestures or other subtleties which animate verbal speech from a written transcript.

Necessarily, the trial judge is given wide discretion in controlling the conduct and orderly process of trial. State v. Williams, 341 So.2d 370 (La.1976); cf. La.C.Cr.P. art. 17. His rulings in this respect will not be reversed absent an abuse of discretion. State v. Richardson, 337 So.2d 210 (La.1976); State v. Terregano, 336 So.2d 859 (La.1976).

Admittedly, our present ability to review this kind of error is limited. However, after careful review, not only of the particular conduct challenged by the defendant in these assignments, but of the entire transcript, we do not believe that defendant has demonstrated an abuse of discretion in the trial judge’s rulings.

Nevertheless, for purposes of assisting the lower courts in ruling on similar objections in the future, and of guiding prosecutors as officers of the court in regulating their own conduct, we commend to them with our express approval the ABA Standards Relating to the Prosecution Function (1971), particularly sections 5.2 (courtroom decorum) and 5.7(a) (examination of witnesses).

For the foregoing reasons, we find no reversible merit in assignments of error numbers five, ten and eleven.

ASSIGNMENT OF ERROR NO. 6

Defendant, in this assignment of error, complains that the trial judge erred in admitting, over his objection, testimony concerning the acuteness of Mr. O’Brien’s vision in the months preceding and following the robbery. During the course of direct examination, the State’s attorney asked Mr. O’Brien whether he liked to hunt; whether he could shoot without problems; and whether he had killed any game on recent hunting trips. Defendant objected, but, before he could state the reason for his objection, was interrupted by the State’s attorney, who commented:

“The man is 80 years old. I think I have a perfect right to prove his eye sight.”

The trial judge agreed.

Defendant’s position is that the evidence was irrelevant, as the witness’ ability to see had not been challenged by the defense.

The relevancy of proffered evidence depends on whether it tends to prove or disprove a material fact at issue. La.R.S. 15:441 and 435; State v. Sneed, 328 So.2d 126 (La.1976). The relevancy of evidence is to be tested by the purpose for which it is offered. La.R.S. 15:442.

The obvious purpose of the testimony objected to, was to show that Mr. O’Brien’s eye sight was good, despite his advanced age, and that his testimony should as a consequence be believed. It is therefore clear that the testimony was offered to support the credibility of the State’s witness, and was improperly admitted if Mr. O’Brien’s ability to see, and hence his credibility in that respect was not, at that time, a material issue in the case.

Louisiana law provides that testimony to establish the credibility of a witness is not normally admissible until that credibility has been attacked. La.R.S. 15:484; State v. Williams, 331 So.2d 467 n. 2 (La.1976); State v. Watson, 159 La. 779, 106 So. 302 (1925). Accord, McCormick on Evidence, § 49 at 102-07 (Cleary ed. 1972). Since, at the time that Mr. O’Brien was interrogated about his vision, his ability to see clearly had not been questioned, his credibility in this respect was not properly provable when the objection was noted. The trial judge’s ruling therefore was erroneous.

Nevertheless, defendant has not alleged or shown how he was prejudiced by the judge’s ruling. Furthermore, the error did not constitute a substantial violation of a constitutional or statutory right, or result in a probable miscarriage of justice. La.C. Cr.P. art. 921.

This assignment of error does not demonstrate grounds for reversal.

ASSIGNMENT OF ERROR NO. 7

Defendant argues in this assignment, that the trial court committed reversible error in failing to order the testimony of Mrs. Cara O’Brien stricken, or alternatively in failing to grant a mistrial, after she admitted on cross-examination that she had violated the court’s sequestration order.

Mrs. O’Brien concluded her testimony just prior to noon recess on the second day of trial. During the course of cross-examination she admitted discussing with her daughter some of the questions which the latter had been asked when testifying the previous day. Mrs. O’Brien denied that the conversation was detailed or extensive. When court reconvened after the noon recess, defense counsel moved to strike Mrs. O’Brien’s testimony on the ground that she had violated the sequestration order. The motion was overruled.

Pretermitting the question of the timeliness of defendant’s objection, see, La.C. Cr.P. art. 841, Louisiana law does not recognize a motion to strike. The judge’s ruling was therefore correct. Further, no mistrial was requested by defense counsel, and no grounds existed for the trial judge to order a mistrial sua sponte. See, La.C.Cr.P. art. 775.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant assigns as error the trial judge’s admission, over defense objection, of testimony by Albert Olsen, á police officer and fingerprint technician, that he had been unable to lift any identifiable prints from the O’Brien residence. Officer Olsen freely admitted that he was not qualified to make identifications based on fingerprint comparison. This admission, argues the defendant rendered incompetent Olsen’s testimony that no prints with sufficient points of identification to permit matching were found at the crime scene.

Defendant’s argument is not well founded; it fails to acknowledge the distinction between comparison and classification of fingerprints,- which calls for the skill of a fingerprint identification expert, and the ability to recognize and lift a clear and usable print. Officer Olsen never attempted to make an identification based on fingerprint comparison. Defendant acknowledged at trial that Officer Olsen was qualified to lift fingerprints. We find that Olsen was qualified to testify as to the fact of whether any prints were lifted. Cf. State v. Yoxtheimer, 301 So.2d 318 (La.1974).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends, in this assignment of error, that the trial court erroneously allowed the police officer who had initially taken the defendant into custody, to compare a two year old photograph of the defendant taken on the date of his arrest, with his appearance on the day of the trial. Defendant’s objection, overruled by the trial judge, was that the requested comparison called for the witness’ conclusions, and thereby invaded the province of the jury.

Generally, Louisiana evidence law bars admission of opinion testimony by lay witnesses. La.R.S. 15:463. It is well settled, however, that this prohibition does not prevent a lay witness from testifying as to natural inferences drawn from facts he personally observed, provided he states the .facts observed. State v. Roche, 341 So.2d 348 (La.1977); State v. Glover, 340 So.2d 1346 (La.1976); State v. Clark, 340 So.2d 1302 (La.1976); State v. Neal, 321 So.2d 497 (La.1975).

The witness called upon to make the comparison responded not only in reliance on the photograph shown to him, but also on the basis of his personal observation of the accused at the time he was taken into custody. The factual bases from which the inference was drawn were presented to the jury.

Consequently, we find no error in the ruling of the trial judge. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 12

The State, during rebuttal, offered the testimony of an inmate from the parish prison, to contradict certain testimony given by two of defendant’s alibi witnesses. After cross-examination by defense counsel, during which this witness’ credibility was questioned, the State’s attorney on re-direct asked a series of questions designed to rehabilitate the witness’ credibility. Defense counsel objected to the following question propounded by the State’s attorney, as leading:

“You say in the jail parlance, you are known as a rat; that is the same word more or less as a fink?
U * * *
“You got that reputation because you testified [informed] about a jail break that was going to go down and you saved a life. Is that how you got it?”

Defendant’s objection was overruled, and the judge’s ruling forms the basis of the present assignment of error.

La.R.S. 15:277 provides:

“A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one’s own witness, unless such witness be unwilling or hostile.”

The State does not contend that its inmate witness was “unwilling or hostile," and we find the question asked defective as defendant contends. The trial judge’s ruling was erroneous.

Nevertheless, we do not find the error prejudicial so as to mandate reversal.When defense counsel was cross-examining this witness concerning previous occasions in which the witness had assisted police officers, he elicited the following testimony:

“Q. Did you assist them [certain law enforcement officers] in respect to another case in order to assist yourself * * #
U # * #
“Q. Would you explain what you did?
“A. Okay. There was an attempted escape going to come down; one officer was going to be killed, two others going to be held hostage and going to take over the jail. Due to the fact of my charges were so light I did not want to participate in it, and I tipped off the authorities inside the jail and it was stopped.”

Since the testimony suggested by the leading question previously had been elicited by defense counsel, we regard the trial judge’s ruling on defendant’s objection to the leading question as non-reversible, error. La.C.Cr.P. art. 921. Cf. State v. Smith, 285 So.2d 240 (La.1973); State v. Maiden, 258 La. 417, 246 So.2d 810 (1971).

This assignment does not demonstrate reversible error.

ASSIGNMENT OF ERROR NO. 13

In this assignment, defendant complains that the trial judge committed reversible error in refusing to allow the jury to view, during their deliberations, a police radio log which had been admitted into evidence.

Louisiana Code of Criminal Procedure Article 793 provides:

“A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.”

In State v. Freetime, 303 So.2d 487 (La. 1974), this Court recently interpreted this article as prohibiting submission to the jury during deliberation of written confessions. In so holding we commented:

“The physical-examination-required exception to the prohibition against documentary evidence going to the jury came into the jurisprudence (see 31 Tul.L.Rev. 693) with dictum in State v. Colbert, 29 La.Ann. 715 (1877). That decision upheld the trial court’s refusal to let an affidavit properly introduced in evidence to go to the jury for its deliberations, but noted that such might be done in instances such as where ‘it was necessary for a jury to compare handwriting.’ 29 La.Ann. 717.
“The re-examining of a documentary exhibit for its verbal content has not been included as an allowable purpose of ‘physical examination.’ We found no Louisiana decision where, over objection, the jury was afforded access to a documentary, after the case was submitted to it, for such purpose. To the contrary, convictions have been reversed when, over objection, documentary exhibits were given to the jury for the purpose of permitting it access to the verbal contents thereof. State v. Arnaudville, 170 La. 151, 127 So. 395 (1930) (account book); State v. Harrison, 149 La. 83, 89, 88 So. 696 (1921) (bloodhound pedigrees).” 303 So.2d at 489.

It is apparent the jury wished to examine the police radio log for its verbal content and not for its physical characteristics. Therefore, the trial court ruling was correct. See also, State v. McCully, 310 So.2d 833 (La.1975).

We find no merit in this assignment of error.

ASSIGNMENTS OF ERROR NOS. 14, 16, 17 and 18

At the hearing on defendant’s motion for new trial, the trial judge rejected defendant’s motion for a continuance based on the absence of two material witnesses. The hearing on the motion for new trial had on previous occasions been continued. When the prior hearings were scheduled, subpoenas for the two witnesses had been requested and issued. Counsel, however, failed to request subpoenas for the subsequent hearing. Because he did not request them, he cannot complain that they were hot issued. La.C.Cr.P. art. 731.

The decision to grant or deny a continuance rests in the sound discretion of the trial judge; his ruling will not be disturbed absent arbitrariness or abuse. State v. Sosa, 328 So.2d 889 (La.1976); State v. Williams, 262 La. 317, 263 So.2d 306 (1972). For several reasons, we find no abuse of the trial court’s discretion. First, though we do not choose to base our decision solely on the absence of technical formalities because the written motion was filed by the defendant pro se, we note that the motion, though in writing, was not verified by his or counsel’s affidavit, as required by law. La.C.Cr.P. art. 707; State v. Weathers, 304 So.2d 662 (La.1974). Second, the sole ground for continuance urged in defendant’s written motion was specifically abandoned by the defense. (See footnote 4). Third, the responsibility for failure to subpoena the desired witnesses must be placed on the defendant, who failed to show due diligence in an effort to procure attendance of the witnesses. La.C.Cr.P. art. 709(3).

Defendant also complains that the trial judge improperly refused to allow the defendant to put on evidence in support of his motion for new trial. The record contains not only a motion for new trial, but a supplemental motion therefor, as well as a detailed memorandum in support of the motion. The facts and law relied on by defendant in support of his motion were thoroughly presented to the trial judge.

We have reviewed the factual allegations. The trial judge’s apparent conclusion that no purpose would have been served by conducting an evidentiary hearing on the motion for a new trial, does not appear to be an abuse of his discretion. As this Court stated in State v. Barfield, 292 So.2d 580 (La.1974):

“Bill of Exceptions No. 2. This bill was reserved when an evidentiary hearing was denied on the new trial motion. * * For the purpose of the hearing of the motion on the new trial, the judge accepted the facts as related in the affidavit as true, but nonetheless, found that the new evidence would not have changed the verdict. An evidentiary hearing was not necessary and would have merely been repetitious because of the affidavit. The judge did not abuse his discretion in denying this motion.” 292 So.2d at 582.

For the foregoing reasons we find no error in the trial judge’s rulings denying the requested continuance, declining to allow evidence to be taken, and rejecting defendant’s request for a new trial.

Assignments numbers 14, 16, 17 and 18 are without merit.

ASSIGNMENT OF ERROR NO. 15

Defendant herein complains that the trial court abused its discretion in requiring that the defendant be handcuffed during the hearing on the motion for new trial.

It is the responsibility of the trial court to see that criminal proceedings are conducted with dignity and in an orderly and expeditious manner, and to so control the proceedings that justice is done. La.C.Cr.P. art. 17. As a result, the trial judge is empowered in his discretion, to use appropriate measures including physical restraint of an accused to insure that dignity and order prevail, and this authority exists though the jury may be present. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); State v. Burnette, 337 So.2d 1096 (La.1976).

However, our review of the record leads us to the conclusion that the trial judge abused his discretion in this instance. The State suggests that the defendant had been convicted of a serious crime, and that as a consequence, the judge’s caution in keeping him handcuffed was justified. Nevertheless, as defense counsel correctly states, the defendant had been unfettered throughout the trial, and had created no outburst or commotion.

Conceding that the trial judge improperly required this defendant to remain handcuffed during the hearing,. we are nevertheless unable to agree that the error is reversible. The jury had already rendered its verdict of guilty and was not present. Counsel argues that Passman was inhibited in his ability to take notes or assist counsel. Review of the hearing record reveals that Passman actively participated in the hearing. The degree to which his efforts were handicapped by his restraints was minimal. The error does not warrant reversal. La.C. Cr.P. art. 921.

This assignment does not demonstrate reversible merit.

ASSIGNMENT OF ERROR NO. 19

Defendant assigns error to the trial court’s ruling denying his pro se “Writ of Habeas Corpus,” in which defendant sought a copy of the trial transcript. The request was denied by the trial judge with the notation: “ * * * it is premature. Transcript has not been filed as of this date by the reporter.” Defendant relies by analogy on the comments to La.C.Cr.P. art. 297, which indicate that transcripts of preliminary hearings are to be furnished “without delay.” Trial ended on March 30, 1976. Defendant’s self-styled writ was filed on June 30, 1976.

The present record consists of the entire trial transcript, including voir dire, opening statements, argument and jury instructions. Hearings on all pre-trial and post-trial motions are included, as well as all pleadings filed in this matter. The appeal was lodged in accordance with the rules set forth in La.C.Cr.P. arts. 914 — 23.

The issue raised by this assignment of error is moot.

ASSIGNMENT OF ERROR NO. 20

After trial, defendant filed, in proper person, an application for “Writ of Habeas Corpus” seeking “full latitude” to act as his own co-counsel and to interview other inmates in the parish prison where he was incarcerated. Defendant urges the latter request was essential, because a fellow inmate had testified against him at trial, and he needed to interview other inmates to prove that witness’ testimony was perjured.

In our view the court properly denied defendant’s request. Defendant had already been convicted, and his motion for new trial had been denied. Defendant was entitled to and ultimately did seek review of his case on appeal. His efforts could not affect the outcome of his appeal, as they would not be part of the record.

The habeas application was premature, and the right claimed was not one to which defendant was then entitled.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 21

Prior to trial, defendant filed a motion to suppress testimony of extra-judicial identifications of the accused made by Mr. O’Brien, his wife and daughter. One of the witnesses subpoenaed by the defendant was the State’s attorney in charge of prosecuting the case. Defense counsel moved to sequester all witnesses, including the prosecutor. Defendant assigns as error the refusal of the trial judge to sequester the State’s attorney.

Defendant relies on La.C.Cr.P. art. 764 which provides:

“Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice. (Emphasis supplied.)

The last sentence of the quoted article permits the trial judge to excuse the State’s attorney from the sequestration order if it is in the interest of justice. The trial judge is allowed wide latitude in making such a determination. State v. Griffin, 329 So.2d 693 (La.1976); State v. Sneed, 328 So.2d 126 (La.1976); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971), appeal dismissed, cert. den. 404 U.S. 805, 92 S.Ct. 101, 30 L.Ed.2d 38 (1972). We cannot say he improperly exercised his discretion on this occasion.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 22 and 30

Defendant assigns as error the refusal of the trial judge to order pre-trial discovery of certain police investigative reports and of a list of State’s anticipated trial witnesses.

Defendant sought, by motion to compel production of exculpatory evidence, police reports which indicated that no fingerprints or blood samples implicating the defendant in the robbery had been discovered by the police. The State willingly informed defendant that it had no fingerprints or blood samples connecting him to the robbery, but maintained that any investigative reports by police officers reflecting the absence of such evidence were not subject to discovery by the defense.

The trial judge correctly agreed with the State, ruling that the State’s answers were sufficient, and that defendant was not entitled to the police reports.

A similar issue was presented to this Court in State v. Owens, 338 So.2d 645 (La.1976). There the defendant sought evidence that the .22 caliber pistol allegedly used by the defendant had not been test fired, and that no shells were found at the scene of the crime. In sustaining the trial judge’s ruling refusing to grant a mistrial on the ground that such evidence was not produced by the State, this Court observed:

“Information on the test firing of the gun and the absence of shells is simply not ‘exculpatory evidence’ required to be disclosed under Brady v. Maryland, [373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)].” 338 So.2d at 652.

Additionally, we note that under Louisiana law police reports are considered confidential, ah'd generally the State may not be compelled to produce them for inspection. State v. Banks, 341 So.2d 394 (La.1976); State v. Square, 257 La. 743, 244 So.2d 200 (1971). It is therefore our opinion that defendant was not entitled to copies of the police reports he sought to discover.

Likewise, the trial judge correctly denied defendant’s request, made by prayer for oyer, for a list of the witnesses the State intended to call at trial. Defendant is not entitled under Louisiana law to this information. State v. Chase, 327 So.2d 391 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Browning, 290 So.2d 322 (La.1974); State v. Thomas, 290 So.2d 317 (La.1974).

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 23 and 25

In these assignments, defendant complains that the trial court improperly limited the scope of examination during the hearing on defendant’s motion to suppress Miss Cara O’Brien’s identification of the defendant as one of the perpetrators of the robbery. Defense counsel was questioning one of the officers who had transported Miss O’Brien from her home in St. Tammany Parish to the Hammond Police Station, where she identified Passman as one of the intruders. Counsel was permitted to examine this officer thoroughly with respect to the events leading up to and including Miss O’Brien’s identification of the accused. But when counsel attempted to discover what conversation took place after the identification, on the way back to the O’Brien home, the State objected on the ground that the testimony was not relevant to the issue before the court — i. e., the validity of the identification proper. The trial judge sustained the State’s objection, and it is this ruling that defendant assigns as error number twenty-three.

Likewise, after Miss Cara O’Brien testified that she could not remember having made a photographic identification of the accused, as defense counsel continued to question her regarding the circumstances under which she viewed a book of “mug shots,” the State objected on the ground of materiality. The objection was sustained by the trial judge, and his ruling now forms the basis of assignment of error number twenty-five.

With respect to Cara O’Brien’s identification of the accused, the motion to suppress being argued was addressed simply to an alleged improper “line-up” conducted at the Hammond Police Station, and defendant’s contention that a subsequent in-eourt identification would necessarily be tainted by that procedure. The motion neither referred to, nor sought suppression of a photographic identification of the accused by this witness.

In view of the fact that the line-up identification could not have been tainted by events occurring subsequent thereto, and because the witness testified that she could not remember making a photographic identification of the accused, we do not find the trial judge’s rulings improper.

Even during the course of trial, the trial judge is accorded broad discretion to end irrelevant and immaterial questions. State v. Robinson, 342 So.2d 183 (La.1977); State v. Ardoin, 340 So.2d 1362 (La.1976); State v. Corey, 339 So.2d 804 (La.1976). This same measure of discretion exists in rulings on relevancy made during the course of a hearing on a motion to suppress.

After careful examination of the transcript of the entire hearing on the motion, we are unable to conclude that the judge’s rulings in these instances constituted an abuse of discretion. Defense counsel was accorded wide latitude in questioning the witnesses called to testify at the hearing regarding the issues raised in the motion to suppress.

These assignments of error do not demonstrate reversible error.

ASSIGNMENT OF ERROR NO. 24

At the hearing on the motion to suppress, defense counsel propounded certain leading questions to Miss Cara O’Brien. The State objected, on the authority of La.R.S. 15:277, arguing that Miss O’Brien had been subpoenaed to testify by the defendant, who according to the language of La.C.Cr.P. art. 703 bore the responsibility of proving his motion, and that she could not be asked leading questions unless she was shown to be unwilling or hostile. Counsel then asked the trial judge declare her a hostile witness, and the judge refused, observing that she had not shown any hostility.

We have previously held that a defendant is not entitled as a matter of course to call witnesses at a motion to suppress hearing, and then to subject them to cross-examination. State v. Rogers, 324 So.2d 403 (La.1975). Of course, the trial judge is vested with discretion to allow leading questions where the witness demonstrates hostility or an unwillingness to cooperate with counsel’s examination. State v. Peters, 302 So.2d 888 (La.1974), cert. den. 423 U.S. 878, 96 S.Ct. 151, 46 L.Ed.2d 111 (1975); State v. Fallon, 290 So.2d 273 (La.1974); State v. Fulmer, 263 La. 971, 270 So.2d 116 (1972).

After review of Miss O’Brien’s testimony at the hearing on the motion to suppress, we are unable to conclude that the trial judge abused his discretion in ruling that she was not hostile or uncooperative, or in sustaining the State’s objection to the leading questions propounded to her.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 26 and 27

In these assignments of error defendant challenges the trial court’s refusal to grant his motion to suppress the in-court identifications of him by Mr. and Mrs. Pat O’Brien and their daughter Cara. It is defendant’s contention that earlier improper visual or photographic identifications tainted the subsequent in-court identifications, resulting in prejudicial error to the accused.

Within two or three hours of the robbery, Miss O’Brien was taken from her home to the Hammond Police Station to view a suspect who had been taken into custody. The suspect was Glenn Passman. No formal “line-up” was conducted at the police station because, as Miss O’Brien was being escorted to the door of the station from the parking lot, she passed by a large window and noticed the accused inside. Immediately she identified him as one of the intruders.

Ample evidence supports the finding of the trial judge that this inadvertent confrontation was not so inherently prejudicial as to be inadmissible, or to taint Miss O’Brien’s subsequent in-court identification of the accused; this finding is entitled to great weight. E.g., State v. Peters, 315 So.2d 678 (La.1975).

We acknowledge that there were slight inconsistencies between the testimony of Miss O’Brien and the officers regarding the sequence of events leading to the identification. Likewise, we note that there was some testimony which suggested that Miss O’Brien’s viewing of the defendant through the window, rather than at a formal lineup, was not altogether accidental. Nevertheless, we find that the bulk of the evidence supports the trial judge’s ruling, and, in any event, there is demonstrated in the record ample independent basis for Miss O’Brien’s in-court identification of the accused apart from the supposedly tainted identification. See, State v. Williams, 341 So.2d 370 (La.1976); State v. Anthony, 332 So.2d 214 (La.1976); State v. Judson, 329 So.2d 742 (La.1976); State v. Peevy, 321 So.2d 324 (La.1975).

Defendant likewise sought to exclude in-court identifications of the accused by Mr. O’Brien and his wife, on the ground that their testimony would be tainted by an earlier improper photographic identification. A series of twelve photographs had been shown to these witnesses. All were black and white photographs with the exception of one—the photograph of Glenn Passman. That photo was in color, and it is contended this fact rendered any photographic identification invalid, and operated to taint the subsequent in-court identification.

We are inclined to agree with defendant that the photographic show-up was tainted. It is not appropriate for police officers to assemble photographs for display to witnesses for purposes of identification wherein all prints are similar in character except that of the principal suspect. State v. Williams, supra. The fact that Pass-man’s picture alone of the twelve exhibited was a color print, drew attention to it in an impermissibly suggestive way.

Nevertheless, we do not find error in the trial judge’s refusal to exclude either Mr. or Mrs. O’Brien’s in-court identification. As previously noted, if the record demonstrates an independent basis for the in-court identification apart from the tainted identification, due process does not compel suppression of the in-court identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Williams, supra; State v. Anthony, supra; State v. Judson, supra; State v. Peevy, supra; State v. Bland, 310 So.2d 622 (La.1975). After reviewing the record we have no doubt that there existed a substantial independent and untainted basis for the witnesses’ in-court identification.

Passman and his confederate were in the O’Brien home some twenty to twenty-five minutes; neither wore a mask. Lighting in the house was said to be good. Facts adduced at trial demonstrated that each of the O’Brien’s had ample opportunity to view Passman at the time the offense was being committed.

For the foregoing reasons assignments of error numbers twenty-six and twenty-seven do not present reversible error.

ASSIGNMENT OF ERROR NO. 28

On June 10, 1975 defendant in proper person filed a motion seeking to recuse all judges of the Twenty-second Judicial District Court, alleging that the three judges harbored feelings of prejudice and bias against him. The motion was referred to Judge Burrell Carter of the Twenty-first Judicial District Court.

At the conclusion of the hearing on defendant’s motion, Judge Carter made the following ruling:

“The finding of this Court in the matter [is] to recuse Judge Wallace Edwards, and Judge Tanner is denied. There was no believable evidence to indicate any bias or prejudice on the part of either of these Judges. I heard the opinions and conclusions of both Mr. Passman and Mr. Burnette, but those opinions and conclusions do not constitute legal evidence. There is absolutely no legal evidence to justify a recusing of the two Judges remaining, that is Judge Tanner and Judge Crane, [sic]
“Now Mr. Passman, apparently you have had a very difficult time and your road ahead is not going to be a smooth one. The only thing that I can say to you is that it is my opinion that either of these Judges or there will be a new Judge in this district in my opinion will give you a fair day in Court.”

Defendant objected to, and now assigns as error the failure of the district judge to recuse Judges Tanner and Crain.

Based on the evidence adduced at the hearing on the motion to recuse, we find the ruling of the district judge correct.

There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 29

Defendant assigns as error the trial judge’s refusal to grant his motion for reduction of bail prior to trial.

As this Court recently said in State v. Jones, 332 So.2d 267 (La.1976):

“ * * * The defendant complains of the trial court’s failure to reduce his bond prior to the trial. On an appeal after conviction, the issue is moot. Timely invocation to this court’s supervisory jurisdiction at the time of denial of reduction is the appropriate avenue of review. La.C.Cr.P. art. 322: State v. Bradford, 298 So.2d 781 (La.1974); State v. Cosey, 261 La. 550, 260 So.2d 620 (1972).” 332 So.2d at 269.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 31

Defendant complains in this assignment that the trial court erred in allowing the State’s attorney to comment in rebuttal argument on the testimony of a State’s witness whose testimony had not been referred to by defense counsel in his closing argument. It is defendant’s position that the proper scope of rebuttal argument was exceeded by the State’s attorney. See, La.C.Cr.P. art. 774.

We need not consider whether the prosecutor’s comments exceeded the scope of proper rebuttal argument. When defense counsel objected to the reference, the State’s attorney replied:

“I am not restricted, may it please the Court. I will drop it .”

The prosecutor made no further reference to this witness or his testimony in the remainder of his argument.

It is defendant’s position that the trial court committed error in failing to admonish the jury that the prosecutor’s statements were indeed improper, and should have been disregarded. We note that neither an admonition lor a mistrial was requested by defense counsel. La.C.Cr.P. arts. 770, 841. Defendant is not now entitled to complain of the trial judge’s failure to admonish the jury.

This argument is without merit.

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

      . La.C.Cr.P. art. 797(4) provides:
      “The state or the defendant may challenge a juror for cause on the ground that: * * * (4) The juror will not accept the law as given to him by the court; * *

      . The ABA Standards Relating to the Prosecution Function, § 5.2:
      “(a) The prosecutor should support the authority of the court and the dignity of the trial courtroom by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses, defendants, jurors and others in the courtroom.
      “(b) When court is in session the prosecutor should address the court, not opposing counsel, on all matters relating to the case.
      “(c) It is unprofessional conduct for a prosecutor to engage in behavior or tactics purposefully calculated to irritate or annoy the court or opposing counsel.
      “(d) A prosecutor should comply promptly with all orders and directives of the court, but he has a duty to have the record reflect adverse rulings or judicial conduct which he considers prejudicial. He has a right to make respectful requests for reconsideration of adverse rulings.
      “(e) A prosecutor should be punctual in all court appearances.
      “(f) Prosecutors should take leadership in developing, with the cooperation of the courts and the bar, a code of decorum and professional etiquette for courtroom conduct.” (Emphasis supplied.)

      . The ABA Standards Relating to the Prosecution Function, § 5.7(a):
      “(a) The interrogation of all witnesses should be conducted fairly, objectively and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily. Proper cross-examination can be conducted without violating rules of decorum.” (Emphasis supplied.)

      . Defendant’s written motion for a continuance was based solely on the ground that a transcript of certain trial testimony alleged to be false, was not yet available to the defense. This ground was abandoned by counsel after the State’s attorney and the court reporter indicated that the transcript excerpts requested had been prepared several weeks before, and a copy furnished to counsel. Counsel stated,
      “If [the court reporter] did give me a copy [of the transcript requested], I assume it, because he says he did, and then I have misplaced the copy, and I retract that as a grounds for asking for my continuance.”

      . Of course, a defendant is entitled to a copy of a police report if it is established that there is an inconsistency between the officer’s testimony at trial and his report, or when the officer’s testimony at trial is given in reliance upon the report rather than from memory. State v. Banks, supra; State v. Bolton, 337 So.2d 446 (La.1976); State v. Monroe, 329 So.2d 193 (La.1976). However, this exception is inapplicable in the instant case.

      . The testimony of Miss O’Brien and the officers who accompanied her was that four or five other men were in the room with Passman, and that only one of them was in uniform. The others in the room, some of whom were undercover narcotics agents, were dressed in “street clothes.”

      . Judge Edwards was recused because he had been elected to the court of appeal and was preparing to assume that office.


source: Caselaw Access Project

author: DIXON, Justice. SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Willard CARLOCK, Sr.
    No. 59553.
    Supreme Court of Louisiana.
    May 3, 1977.
    Rehearing Denied May 25, 1977.
    Kenneth E. Badon, Lake Charles, for defendant-relator.

      William J. Guste, Jr., Atty. Gen., Patrick G. Quinlan, Barbara Rutledge, Asst. Attys. Gen., Michael S. Fawer, Special Prosecutor, New Orleans, for plaintiff-respondent.
   DIXON, Justice.

On March 31, 1977 this court granted the defendant’s application for writs, 343 So.2d 1074, to decide an issue which is res nova in Louisiana. The particular facts giving rise to this litigation are as follows. On January 15, 1976 various acts of vandalism and property damage occurred at a chemical plant in Lake Charles, Louisiana. Over one hundred men allegedly participated in this incident and, in addition to the property damage, one man was killed and several others injured. As a result of an investigation conducted by the Calcasieu Parish district attorney’s office and the office of the Attorney General, thirty-one indictments were handed down charging sixteen separate defendants with crimes ranging from criminal conspiracy to commit aggravated criminal damage to property to first degree murder. No two defendants were charged in the same indictment. The defendant, Willard Carlock, Sr., was charged in four indictments with criminal conspiracy to commit four counts of aggravated criminal damage to property, criminal conspiracy to commit theft of not less than $10,000, manslaughter, and three counts of aggravated criminal damage to property.

Prior to trial the defendant Carlock filed a motion for a change of venue which was granted by the trial judge in the Fourteenth Judicial District Court, Parish of Calcasieu. Two other defendants also succeeded in having the venue changed in their cases. All three of these cases were ordered transferred to the Twenty-fourth Judicial District Court in Gretna, Jefferson Parish, Louisiana. The Supreme Court assigned the Honorable Alvin V. Oser to preside at the trial of the transferred cases. On February 11, 1977, following the transfer, the district attorney of Calcasieu Parish was recused from prosecuting any or all of the remaining cases arising out of the incident at the chemical plant. The trial of defendant Carlock was set by Judge Oser to proceed on March 21, 1977. On February 28, 1977 the Attorney General appointed Michael S. Fawer as special assistant attorney general to act as district attorney ad hoc in all cases arising out of this incident. On March 2, 1977 Mr. Fawer informed Judge Oser that he intended to file a new bill of information in the Fourteenth Judicial District Court against all of the defendants with outstanding indictments, charging them collectively with conspiracy and aggravated criminal damage to property. Once this new information was filed in Cal-casieu Parish, Mr. Fawer intended to nolle prosequi the indictments pending against Carlock that had been transferred to Gret-na. On March 3, 1977 Mr. Oarlock’s attorney was advised of the State’s intention in this matter.

On March 7, 1977, prior to the filing of the new information, defendant Carlock filed a motion for speedy trial. Hearing on the motion was set for March 18, 1977. On March 14,1977 the new information (including charges against the defendant Carlock) was filed in the Fourteenth Judicial District Court, Calcasieu Parish. The charges in the new information arose out of the same incident and included two charges originally found in the four indictments against the defendant. On March 18, 1977 Mr. Fawer dismissed the four pending indictments against defendant Carlock in the Twenty-fourth Judicial District Court in Gretna by entering a nolle prosequi as to each indictment. That same day Judge Oser denied the defendant a hearing on his motion for a speedy trial on the ground that since the prosecution had been dismissed, he no longer had jurisdiction to. hold any hearing regarding this case. Arraignment on the new information was set for March 22, 1977 in the Fourteenth Judicial District Court in Calcasieu Parish. On March 21, 1977 the defendant filed with this court an application for writs of certiorari, prohibition, mandamus and for a stay order to stay the defendant’s arraignment on the new information. This court ordered a stay of the proceedings against Mr. Carlock in Calca-sieu Parish until further notice by this court. On March 31, 1977 the defendant’s application for writs was granted. 343 So.2d 1074.

The central issue in this case is whether the special assistant attorney general had the authority to dismiss the charges in the Twenty-fourth Judicial District Court, to which the cases had been transferred, recharge the defendant by information in the Fourteenth Judicial District Court, the transferring forum, and thereby circumvent or nullify the change of venue originally granted the defendant. On the facts presented here we find that the special assistant attorney general had no such authority.

Both the United States and Louisiana Constitutions guarantee a defendant in a criminal prosecution the right to be tried by an impartial jury. U.S.Const. Amend. VI; La.Const. art. 1 § 16. In order to guarantee this right, our legislature, early on, recognized the need for a procedure whereby the site of the trial could be changed when it is impossible to select an impartial jury. C.Cr.P. 621-27 provide the authority and mechanism for either the State or the defendant to obtain a change of venue if for any reason “. . .a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.” C.Cr.P. 622. C.Cr.P. 623 and 624 provide for the transfer of the case after the change of venue has been granted:

“When a change of venue is granted, the court shall transfer the case to another parish.” C.Cr.P. 623.
“When a change of venue is granted, the clerk of the court in which the case is pending shall make and retain copies of all documents relating to the case. He shall deliver the original documents together with certified copies of all minute entries of the case to the clerk of the court to which the case is transferred, who shall enter the case upon the docket of the court, and the case shall be proceeded with in the same manner as if the proceedings had originally been instituted therein.” C.Cr.P. 624. Emphasis added.

In this case, due to the publicity surrounding the incident at the chemical plant, defendant Carlock had moved for a change of venue for the stated reason that he could not obtain a fair and impartial trial in Calcasieu Parish. The trial judge in the Fourteenth Judicial District Court granted the motion and ordered the case transferred to the Twenty-fourth Judicial District Court in Gretna, Jefferson Parish.

In brief and on oral argument, the special assistant attorney general sought to demonstrate that his actions were taken in good faith in an attempt to consolidate all of the cases in the interest of judicial economy and not to circumvent the change of venue previously ordered. We note that we do not question the prosecutor’s motives in this case, but only the result of his actions. Whatever his motives for seeking a consolidation of the cases in Calcasieu Parish, the practical effect is to deprive the defendant of his right to trial in the changed venue and return his trial to the jurisdiction in which he obtained the change of venue. In this situation, when an apparent conflict exists between the defendant’s right to trial before an impartial jury, La.Const. art. 1 § 16, and the State’s right to control the prosecution, C.Cr.P. 61, 691, 693, the defendant’s right must predominate.

The State further argued that its nolle prosequi and recharging of the defendant in Calcasieu Parish should be upheld because the defendant has not been deprived of any of his rights; i. e., the defendant still has a right to obtain a change of venue from Calcasieu Parish to another forum if he can establish that he still cannot obtain a fair trial in Calcasieu Parish. The fault in this reasoning is that the defendant has already gone through the procedure to obtain a change of venue, and there is no reason to force the defendant to repeat what he has already accomplished.

Our holding that the State cannot unilaterally frustrate the change of venue obtained by the defendant is reinforced by the fact that the State had available other alternatives if it was dissatisfied with the change of venue obtained by the defendant. At the time that the change was ordered, the State could have sought review of the ruling by applying to this court for a writ of review under our supervisory jurisdiction. La.Const. art. 5 § 5(A). The State did not seek review of the order granting the change of venue. In addition, the right to seek a change of venue is a remedy available to both the State and the defendant. C.Cr.P. 621 provides:

“An application for a change of venue may be made by either the state or the defendant. It must be made at least five days prior to the date then fixed for commencement of trial; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial on the merits. The application shall be in writing, sworn to by the applicant or his counsel, and shall contain:
“(1) Allegations of fact upon which the application is based; and
“(2) A statement that the application is not made for the purpose of delay, but to obtain a fair and impartial trial.
“A contradictory hearing shall be held upon the application.” (Emphasis added).

The State has not sought a change of venue from the Gretna forum but rather attempted to change the venue (de facto) through its dismissal and rebilling, without so much as a hearing on the matter.

For the reason that the effect of the dismissals was to thwart the prior ruling changing venue, the nolle prosequi entered by the special assistant attorney general in the Twenty-fourth Judicial District Court as to each indictment is declared to be ineffective. Therefore the judge assigned to hear these cases in the Twenty-fourth Judicial District Court did have jurisdiction to hear the defendant’s motion for a speedy trial. The case is remanded to the Twenty-fourth Judicial District Court for proceedings not inconsistent with the views expressed herein.

SANDERS, C. J., and MARCUS, J., concur in the result.

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

SUMMERS, Justice

(concurring in part and dissenting in part).

While I agree with the rationale of the majority opinion, I would, decree that the rebilling in the Fourteenth Judicial District Court; Calcasieu Parish, is ineffective. I would not decree the nolle prosequi in the Twenty-fourth Judicial District Court, Jefferson Parish, to be ineffective.

      . The Sixth Amendment to the United States Constitution provides:
      “Jury trial for crimes, and procedural rights

        “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (Emphasis added).
      Article 1 § 16 of the Louisiana Constitution provides:

        “Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. No person shall be compelled to give evidence against himself. An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.” (Emphasis added).

      . The State apparently has no right to appeal from an adverse judgment on a motion to change venue under the new Constitution. La.Const. art. 5 § 5(D)-(E); State v. James, 329 So.2d 713 (La.1976). See also State v. Nichols, 337 So.2d 1074 (La.1976). Nevertheless, the supervisory jurisdiction of this court is available for the correction of abuses.

      . We note that at least two other states that have faced the issue of whether, after the defendant has obtained a change of venue, the state may prosecute the defendant in the original venue (without obtaining a change of venue itself) have decided that the state may not be permitted to proceed with the prosecution in the original forum. Ex parte Lancaster, 206 Ala. 60, 89 So. 721 (Ala.1921); Johnston v. State, 118 Ga. 310, 45 S.E. 381 (Ga.1903). However, as the following quotation points out, this precise issue has not been decided in a number of jurisdictions.
      “There are exceedingly few cases wherein the courts have determined whether an order granting a change of venue in a criminal prosecution which is subsequently dismissed or otherwise terminated other than on the merits is conclusive as to the venue of a second prosecution against the accused for the same offense. Because of differences in statutory provisions those cases reflect a conflict in principle as well as in result. In some jurisdictions the view has been taken that such an order is conclusive as to the venue of the second prosecution, to the extent that the second prosecution may not be had in the court from which the first prosecution was transferred. At this point, however, a divergence occurs. In at least one jurisdiction it has been held that the second prosecution must be tried in, and only in, the court to which the first prosecution was transferred, while in another jurisdiction it has been held that the venue of the second prosecution is in the county to which the first prosecution was transferred unless and until there is another change of venue to a third county. On the other hand, in other jurisdictions the view has been taken that the order of transfer does not have the effect of fixing the venue of the second prosecution.” Annot., 85 A.L.R.2d 994, 997 (1962).

      . Nothing in this opinion should be construed to deprive the special assistant attorney general of his right to simply nol. pros, any indictment, information or count thereof. C.Cr.P. 691, 693. We do hold, however, that any attempt to nol. pros, the indictment in Gretna that has the effect of changing venue back to Calcasieu Parish is ineffective. In State v. Alexander, 252 La. 564, 211 So.2d 650 (1968), this court, in an opinion authored by Justice (now Chief Justice) Sanders, held that where a case is.transferred from one forum to another pursuant to a motion for a change of venue and the original indictment is subsequently quashed, the grand jury of the changed venue has authority to reindict the defendant on charges arising out of the same incident, although that incident occurred in the jurisdiction where the prosecution was originally instituted.


author: SANDERS, C. J., and SUMMERS, J.,

text:
    STATE of Louisiana v. Earl HARDOUIN.
    No. 59866.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Earl Hardouin, applying for remedial writ and stay order.

Writ granted in part. The accused is entitled to a hearing upon his motion for a change of venue. See La.Code of Criminal Procedure, art. 622. In other respects the application is denied, there being an adequate remedy by review in the event of conviction.

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

dissent from granting of the writ, being of the opinion that the motion for change of venue is inadequate. See La.Code of Criminal Procedure, art. 621(2).


text:
    GREATER BATON ROUGE AIRPORT DISTRICT et al., v. Mrs. Florence Hobgood HAYS et al.
    No. 58994.
    Supreme Court of Louisiana.
    January 19, 1977.
   In re: Greater Baton Rouge Airport Dist. of East Baton Rouge Parish, La. applying for certiorari, or writ of review, to the Court of Appeal, first circuit, Parish of East Baton Rouge. 345 So.2d 66.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. Larry Paul TUCKER.
    No. 59917.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Larry Paul Tucker applying for writs of certiorari, prohibition and mandamus.

Application for writ is denied. Appropriate remedy is by appeal. State v. McCarroll, 337 So.2d 475 (La.1976) assuming that this application for writs was within the delay allowed for moving for an appeal, the application will be treated as an appeal when the record is perfected and filed in this court.


text:
    STATE of Louisiana ex rel. Walter BOOTH, II v. Hon. Rudolph F. BECKER, III, Judge, Criminal District Court, Parish of Orleans.
    No. 59879.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Walter Booth, II applying for writ of mandamus.

Writ granted. The district judge is ordered to act on the application for writ of habeas corpus. An appeal suspends the execution of sentence. C.Cr.P. 913. There is no right to transfer a prisoner to the Department of Corrections while the prisoner’s appeal is pending, State ex rel. Matthews v. Henderson, La., 292 So.2d 496 (1974), in the absence of a finding that the particular prisoner involved is a security risk. State ex rel. Matthews v. Henderson, La., 292 So.2d 496 (1974).


text:
    STATE ex. rel. Thomas HURST v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 59344.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Thomas Hurst, applying for writs of habeas corpus and certiorari.

Writ denied: Based on the record of the trials (found in this court under dockets Nos. 50,561, and 50,630, see also State v. Baudoin, 257 La. 583, 243 So.2d 265 and State v. Hurst, 257 La. 595, 243 So.2d 269 (1971)) we find no merit to the petitioner’s allegations.


text:
    ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE AREA, INC., et al.
    No. 59870.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Economy Carpets Manufacturers and Distributors, Inc. applying for remedial writs.

Writ denied. Relator not entitled to relief sought.


text:
    ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE AREA, INC., et al.
    No. 59725.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Economy Carpets Mfg. and Distributors, Inc. applying for certiorari, or writ of review, to the Court of Appeal first circuit Parish of East Baton Rouge.

Writ denied. There is no error of law in the judgment of the Court of Appeal.


text:
    STATE of Louisiana ex rel. Major Field LOCKHART v. T. N. ARMISTEAD, Superintendent East Louisiana State Hospital.
    No. 59665.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Major Field Lockhart applying for writs of certiorari, mandamus, prohibition and habeas corpus.

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 Cecil C. Lowe, Judge of the Twenty-Sixth Judicial District, Court for the Parish of Webster, to transmit to the Supreme Court of Louisiana, on or before the 15th day of June, 1977, 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 day to be fixed by this court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana, ex rel. Evans BROWN v. Bernard J. BAGERT, Judge, Criminal District Court, Parish of Orleans.
    No. 59910.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Evans Brown, applying for writ of mandamus.

Writ refused. Since the trial judge ruled on the motion on March 23, 1977, this petition for mandamus is moot.


text:
    STATE of Louisiana v. Ulyssess Charles FOBBS.
    No. 59878.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Ulyssess Charles Fobbs, applying for remedial writs.

Writ denied. This Court on May 6, 1977 in 345 So.2d 49 denied a similar application by relator. For reasons assigned therein, we find no merit in this application.


text:
    STATE of Louisiana v. Willard D. YOCHIM.
    No. 59876.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Willard D. Yochim, applying for writs of certiorari, prohibition, mandamus and for a stay order.

Application denied: No error shown in the ruling of the trial judge.


text:
    STATE of Louisiana ex rel. Wilbert Michael DORSEY v. Ross MAGGIO, Jr., Warden.
    No. 59853.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Wilbert Michael Dorsey applying for writ of mandamus.

Writ refused. Since the trial judge ruled on relator’s petition on May 13, 1977, this petition for mandamus is now moot.


text:
    STATE ex rel. Lendon Rae COLE v. STATE of Louisiana.
    No. 59841.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Lendon Rae Cole applying for writ of mandamus.

Writ' denied. The clerk of the Ruston City Court has informed this court there are no charges pending against applicant in the city court.


text:
    LOUISIANA ARCHITECTS ASSOCIATION v. Edwin W. EDWARDS, Governor of the State of Louisiana, et al.
    No. 59808.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Louisiana Architects Association applying for remedial and supervisory writs.

Writ refused. Adequate remedy by appeal.


text:
    STATE of Louisiana v. Enoch F. McQUEEN, Jr.
    No. 59797.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Enoch F. McQueen, Jr., applying for writ of mandamus.

Writ denied. Based on the trial court’s return of May 11, 1977, the application is moot.


text:
    Frank G. SULLIVAN, Jr., et al. v. HARRIS MORTGAGE CORP. et al.
    No. 59735.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Frank G. Sullivan, Jr., et al, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 343 So.2d 236.

Writ denied. Judgment of the Court of Appeal is correct.


text:
    Francis B. SNEED v. DEPARTMENT OF PUBLIC SAFETY, State of Louisiana.
    No. 59732.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Francis B. Sneed, applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 343 So.2d 336.

Writ denied. There is no error of law in the judgment of the Court of Appeal.


text:
    STATE of Louisiana ex rel. Roland WILLIAMS v. STATE of La. Through Frank J. Shea, Judge, Criminal District Court, Parish of Orleans.
    No. 59670.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Roland Williams, applying for mandamus.

Writ granted. The trial judge is ordered to act upon the application for writ of habe-as corpus within (10) days hereof.


text:
    STATE of Louisiana v. John OLINDE.
    No. 59923.
    Supreme Court of Louisiana.
    May 26, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Writ denied. We are unable to say under the facts of this case that the trial judge abused his discretion.


text:
    Hoyle T. McWHINEY, Individually and as Administrator of the Estates of his Minor Children; and as Curator, et al. v. TRAVELERS INSURANCE CO. et al.
    No. 59752.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Braswell Industries, Inc., Larry Dandridge, Morris J. Gulledge, John B. Howell, Byron Braswell, Jr., Mary Leahy and the Travelers Ins. Co. applying for certiora-ri, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 343 So.2d 736.

Writ denied. Judgment not final. Cf. La.C.Civ.P. art. 968.


text:
    STATE of Louisiana v. Daniel JOHNSON.
    No. 59798.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Daniel Johnson applying for remedial writs.

Not considered. The applicant has not first sought relief from the trial court.


text:
    REALTY MART, INC., et al. v. GREENWELL COMMERCIAL PROPERTIES, INC., et al.
    No. 59746.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Realty Mart, Inc. et al., applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 459.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana v. AMERICAN BANK & TRUST CO.
    No. 59747.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: American Bank & Trust Co., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 253.

Writ denied. Not final.


text:
    Henry FIELDS, Administrator of the Estate of William S. Fields and Anita Fields, tutrix of the minor, William Kyle Fields v. SPERRY RAND CORPORATION and the Travelers Insurance Company.
    No. 59748.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Henry Fields, Administrator of the Estate of William S. Fields and Anita Fields, Tutrix of the Minor, William Kyle Fields, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster. 343 So.2d 339.

Writ denied. The result is correct.


text:
    In re Eddie Gene HANSON, applying to adopt Rachel Deann Coile.
    No. 59750.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: James Gary Coile, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster. 343 So.2d 325.

Writ refused. On the facts found, there is no error of law in the judgment.


text:
    Henry FIELDS, Administrator of the Estate of William S. Fields and Anita Fields, tutrix of the minor, William Kyle Fields v. SPERRY RAND CORPORATION and the Travelers Insurance Company.
    No. 59753.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Sperry Rand Corp. and the Travelers Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster. 343 So.2d 339.

Writ denied. The result is correct.


text:
    Robert J. BLOUIN v. Bonnie Ann Alison BLOUIN.
    No. 59755.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Robert J. Blouin applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 276.

Writ denied. No error of law.


text:
    Albah JEANISE et al. v. DEPT. OF PUBLIC SAFETY, DIVISION OF STATE POLICE, State of Louisiana.
    No. 59758.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Albah Jeanise, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 265.

Writ denied. On the facts found, the result is correct.


text:
    RE-STEEL, INC. v. HAAS AND HAYNIE-TUDOR CONSTRUCTION COMPANY et al.
    No. 59761.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Re-Steel, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 344 So.2d 696.

Not considered. The applicant did not apply for rehearing in the court of appeal, a prerequisite for review by this court. See La.R.S. 13:4450 (1950); La. Supreme Court Rules, Rule 10, Section 4 (1973).


text:
    STATE of Louisiana v. Lee UNDERWOOD.
    No. 59778.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Lee Underwood applying for motion for limited remand.

Motion for a limited remand granted for consideration by trial judge of relator’s request for presentence report data in light of L.C.Cr.P. art. 877 and R.S. 15:574.12.


text:
    James D. ADAMS v. The TRAVELERS INSURANCE COMPANY et al.
    No. 59759.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: James D. Adams applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Sabine. 343 So.2d 1174.

Writ refused. On the facts found, there is no error of law.


text:
    Jay H. PIPES v. W. H. PIPES.
    No. 59767.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Mary W. Pipes, Mary Sue Peace and Jeanine P. Jones applying for certiora-ri, or writ of review, to the Court of Appeal, Second Circuit, Parish of Lincoln. 343 So.2d 329.

Writ denied. On the facts found by the Court of Appeal there is no error in the judgment below.


text:
    LOUISIANA INTRASTATE GAS CORPORATION v. Roger C. EDWARDS et al.
    No. 59775.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Roger C. Edwards, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vermilion. 343 So.2d 1166.

Writ denied. The judgment of Court of Appeal is correct.


text:
    STATE of Louisiana v. Robert E. BULLARD.
    No. 59791.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Robert E. Bullard applying for writ of review.

Writ denied. As to the motion to suppress, applicant has an adequate remedy by appeal. As to all other issues, the application is without merit.


text:
    Lois Lancaster HALCOMB v. Roy Seale HALCOMB.
    No. 59844.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Lois Lancaster Halcomb, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Concordia. 343 So.2d 1183.

Writ denied. This application is without merit.


text:
    STATE of Louisiana v. Frazier PARKER.
    No. 59858.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: State of Louisiana through the District Attorney, Harry F. Connick applying for writs of certiorari, prohibition and mandamus.

Writ denied. No abuse of discretion shown.


text:
    STATE of Louisiana v. George L. ROTH.
    No. 59883.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: George L. Roth applying for writ of mandamus.

Application denied; the petition for mandamus has been denied by the trial court on May 10, 1977.


text:
    James L. FIRMIN v. Kenneth R. GARBER.
    No. 59736.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: James L. Firmin apply for certio-rari or writ of review to the Court of Appeal, First Circuit, Parish of St. Mary. 343 So.2d 245.

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:
    COMMERCIAL UNION INSURANCE CO. v. ADVANCE COATING CO. et al.
    No. 59749.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Reliance Insurance Co. apply for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 299.

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. Joseph G. MADERE. Joseph G. MADERE v. STATE of Louisiana et al.
    No. 59765.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: State of Louisiana, Through Dept, of Public Safety apply for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John Baptist. 344 So.2d 29.

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:
    Edwin E. FOSTER, Jr. v. Joseph M. HAMPTON et al.
    No. 59768.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Edwin E. Foster, Jr., applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 219.

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:
    Lois Lancaster HALCOMB v. Roy Seale HALCOMB.
    No. 59779.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Roy Seale Halcomb applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Concordia. 343 So.2d 1183.

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. Gerri NORWOOD.
    No. 59770.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: State of Louisiana through Harry F. Connick, District Attorney applying for writ of certiorari.

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 Rudolph F. Becker, III, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 17th day of June, 1977, the record -in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


author: LOTTINGER, Judge. BLANCHE, Judge

text:
    F. G. SULLIVAN, Jr., d/b/a F. G. Sullivan, Jr., Contractor, v. The CITY OF BATON ROUGE et al.
    No. 10767.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Writ Refused May 11, 1977.

      Victor A. Sachse (Breazeale, Sachse & Wilson), Baton Rouge, for intervenor-ap-pellant.
    Bobby L. Forrest, Baton Rouge, for plaintiff-appellee.
    Joseph F. Keogh, City-Parish Atty., R. Gordon Kean, Jr., Baton Rouge, for defendant-appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ON MOTION TO DISMISS

LOTTINGER, Judge.

Plaintiff-appellee, F. G. Sullivan, Jr., doing business as F. G. Sullivan, Jr., Contractor, has requested that this appeal, by intervener, Barber Brothers Contracting Company, Inc., be dismissed.

In the furtherance of a public highway project in the Parish of East Baton Rouge, the East Baton Rouge City-Parish Council advertised for bids. The funds for this project are to be derived from the adjoining property owners and from federal funds under the Federal Aid Project Program administered by the Louisiana Department of Highways. The Louisiana Department of Highways and the Federal Highway Administration must concur with the parish as to its recommendation of the acceptance of bids received prior to a contract being entered into with the lowest responsible bidder.

Plaintiff-appellee submitted the lowest bid, however, some question must have arisen as to the validity of his bid bond, in that his bid bond was written in terms of a written percentage of the bid amount instead of a bid bond in dollars and cents. Prior to a recommendation from the appropriate City-Parish department to the Council as to which bid should be accepted plaintiff filed a petition, in the Trial Court for a writ of mandamus seeking to have the City-Parish Council award to him the contract. Barber Brothers Contracting Company, Inc., the next lowest bidder, intervened averring that plaintiff’s bid was properly rejected due to irregularities contained therein. After a hearing, the Trial Judge issued the writ of mandamus directing the defendants to accept the bid bond of plaintiff as a legal statutory bid bond.

The City-Parish Council, pursuant to the judgment of the Trial Court, awarded the contract to the plaintiff-appellee, permitting him the opportunity to revise and amend his bid bond so as to put in the dollars and cents in lieu of the percentage figure, all contingent upon approval of the Louisiana Department of Highways and the Federal Bureau of Roads. It is apparent that the City-Parish has acquiesced in the judgment of the Trial Court, however, the intervener, Barber Brothers Contracting Company, Inc., has appealed from that judgment.

Plaintiff-appellee, in asking this Court to dismiss the appeal of Barber Brothers Contracting Company, Inc., contends that the question or questions presented to this Court are moot; that no appeal lies inasmuch as the defendant, City-Parish, has acquiesced in the judgment of the Trial Court, and therefore intervener cannot appeal from a judgment that has been acquiesced in; and the appellant-intervener has no standing to object to the Court’s judgment granting a more restricted or lesser relief than that prayed for by the plaintiff.

It is not the function of appellate courts to render judgments which cannot be made effective, nor to give opinions on moot questions. Brown v. Town of Lake Providence, 200 So.2d 764 (La.App. 2nd Cir. 1967). We must however determine whether this question is moot. Quite differently than this Court had before it in Cox v. Watts, 329 So.2d 917 (La.App. 1st Cir. 1976), No. 10646 on the Docket of this Court, there is no contention that the contract in question has been entered into, nor if it has been entered into, whether work has commenced, and if commenced, completed.

Plaintiff-appellee argues that subsequent to his being awarded the contract, and prior to its submission to the Department of Highways for approval, he amended his bid bond to reflect an amount in dollars and cents rather than a percentage figure, and thus, the issue as to the sufficiency of the bid bond is moot. We do not agree. The sufficiency of the bid bond is the question before this Court on appeal.

It is further argued that even if this Court should reverse the Trial Court and disallow the writ of mandamus, that judgment could be of no moment because the Council could still award the contract to appellee. It may be true and arguable that the Council could still award the contract to plaintiff-appellee, but it is obvious to us from the record that it is highly questionable whether the Department of Highways would approve of the award. In brief, plaintiff-appellee concedes that even though this is a devolutive appeal, the Highway Board has withheld action pending this appeal. Therefore, we fail to see how there can be any mootness in this appeal.

Secondly, we cannot agree that because the City-Parish acquiesced in the judgment, the intervener has no right to appeal. After citing LSA-C.C.P. art. 2085 , plaintiff-appellee contends that appellant intervened pursuant to LSA-C.C.P. art. 1091 , joined with the defendant in resisting plaintiffs demand, but did not seek any different relief. Therefore, plaintiff-ap-pellee argues that under LSA-C.C.P. art. 1094, the intervener-appellant cannot now be heard to complain.

In Thomas v. Louisiana State Board of Health, 271 So.2d 81 (La.App. 4th Cir. 1972), a situation wherein the Louisiana State Board of Health and the City of New Orleans, Health Department, Bureau of Vital Records, were named as defendants, and after judgment, the City of New Orleans acquiescing, the State Board of Health appealing, in disposing of a motion to dismiss, Judge Samuel said:

“We note the quoted article [LSA-C.C. P. art. 2085] only prohibits an appeal being taken by the party who has confessed judgment or who has voluntarily and unconditionally acquiesced in the judgment. The article therefore has no application to the appellant in this case [Louisiana State Board of Health, a co-defendant], for it has neither confessed judgment nor acquiesced in the judgment from which it appeals.
“Under LSA-C.C.P. Art. 2082 an appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court, and the rule that appeals are favored is too well established to require citation of authorities. * * * ” (Emphasis by the Court).

We see no distinction between a co-defendant who has not acquiesced, and an intervener in the Trial Court who has not acquiesced, and therefore hold that the acquiescence by City-Parish does not act as a bar to an appeal by plaintiff-appellee.

As to the plaintiff-appellee’s argument that LSA-C.C.P. art. 1094 prohibits an appeal, we cannot agree. In City of Natchitoches v. State, 221 So.2d 534 (La.App. 3rd Cir. 1969), reh. den. (1969), writ den., 254 La. 463, 223 So.2d 870 (1969), the Court found that the main function of LSA-C.C.P. art. 1094 was to require the intervener to take the case as he found it, and to prevent him from delaying its determination by raising technicalities or infor-malities personal to the original parties, by making defenses individual to the original parties which do not go to the merits of his own claim, or by objecting to the form of action or mode of procedure when the original parties have not done so. We do not find that LSA-C.C.P. art. 1094 is controlling in this case, nor intended to apply in such a situation.

Lastly, as to appellee’s argument that the appellant has no standing to object to the Court’s judgment granting a more restricted or lesser relief than prayed for by the plaintiff, we can find no justification. Even though the plaintiff had asked the Trial Court to order the City-Parish Council to award him the contract, he in essence was really asking that the Trial Court uphold the validity of his bid bond. The appellant argued the invalidity of the bid bond in the Trial Court, and this is the reason he has appealed.

Therefore, for the above and foregoing reasons, the motion to dismiss is denied at mover’s cost.

MOTION DENIED.

BLANCHE, J., dissents and will assign reasons.

BLANCHE, Judge

(dissenting).

One of the purposes of plaintiff’s suit was to obtain a judicial determination of the legality and sufficiency of his bid proposal. The defendant’s sole interest was to obtain a legal bid at the lowest possible bid price from the lowest responsible bidder. The interest of the intervener was to hope that plaintiff lost and defendant won, for in that event defendant, even though not required to, could if it so desired, award the bid to plaintiff, who was the second lowest responsible bidder, or could at least be given another chance to bid with the hope of submitting the lowest bid on the next letting of the contract. The interve-nor actually prayed for the same relief as defendant and sought no other independent relief, and, indeed, it could not since it-had no separate interests to protect. In effect, the intervention only said “Amen.”

The trial judge found the bid proposal of the plaintiff legally sufficient, and the defendant acquiesced in this judgment by awarding the contract to plaintiff. The sole appeal is by one who has no legal right to enforce. The error of the majority lies in their failure to recognize this obvious impotency.

LSA-C.C.P. Art. 1091, in pertinent part, provides:

“A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto * ' * (Emphasis supplied)

The only interest which intervenor has in the matter is the interest in the success of the defendant, for, as pointed out above, if plaintiff loses, intervenor will get another chance to bid or its bid may be accepted. I would define this type of interest as no more than a concern that if plaintiff lost, intervenor might gain.

Under the official revision comments of the article, it is stated that “ ‘interest’ as used in this article includes but goes beyond the ‘real and actual interest’ required under Art. 15, Code of Practice of 1870 to enable a party to institute the action.” The comment also notes that the answer to this question has not been provided by the jurisprudence. I would add to the jurisprudence by holding that at the very least it means more than a mere concern aroused by the hope of gain in the event of another’s loss.

This writer believes that the statute as now revised provides its own answer as to what type of interest is required and that is “to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto.”

The wisdom of thus limiting the interest of one to so intervene is to keep busybodies and meddlers out of other people’s lawsuits, thereby preventing them from interfering with the administration of justice between parties where a justiciable issue exists. The mischief which could result from permitting an intervention by a party in a proceeding where he has no right to enforce is limitless.

While I do not accuse intervenor here of any such motive, nevertheless, if one without any right to enforce is permitted to intervene in a proceeding such as this, he could conceivably delay the proceeding until the prices on which the plaintiff’s bid was based were no longer valid and the contract would have to be relet, regardless of the outcome of the suit.

The further result of requiring enforcement of a justiciable right in an intervention is to serve the administration of justice by avoiding a multiplicity of litigation and all the evils attendant thereto. No such purpose is here afforded by appellant’s intervention for the reasons stated hereinabove.

LSA-C.C.P. Art. 2086 provides for the appeal of a person who could have intervened in the trial court. It follows that intervenor, having no right to intervene, could have no right to appeal. LSA-C.C. P. Art. 927 gives this Court the right, on its own motion, to recognize intervenor’s want of interest to prosecute this appeal.

      . LSA-C.C.P. art. 2085 provides:
      “An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

      . LSA-C.C.P. art. 1091 provides:
      “A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
      (1) Joining with plaintiff in demanding the same or similar relief against the defendant;
      (2) Uniting with defendant in resisting the plaintiff’s demand; or
      (3) Opposing both plaintiff and defendant.”

      . LSA-C.C.P. art. 1094 provides:
      “An intervener cannot object to the form of the action, to the venue, or to any defects and informalities personal to the original parties.”