author: MARCUS, Justice.

text:
    STATE of Louisiana v. Alex JOHNSON.
    No. 56703.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Stephen J. Katz, Kidd, Katz & Strickler, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Alex Johnson was indicted by the .Ouachita Parish Grand Jury for second degree murder in violation of La.R.S. 14:30.-1. After trial by jury, he was found guilty as charged. He was subsequently sentenced to life imprisonment at hard labor. On appeal, he relies upon five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant first alleges error in the trial judge’s denial of his motion to produce evidence favorable to defendant.

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) held that the prosecution may not suppress evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or punishment. At the hearing on defendant’s motion for production of favorable evidence, the prosecutor affirmatively stated that the state did not possess any evidence that was favorable to defendant. In the motion, defendant did not contend that the state was in possession of any specific evidence that would assist his case, nor does he now present any indication of what type of exculpatory evidence the prosecution might have had.

There is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). As we stated in State v. Williams, 310 So.2d 528 (La.1975), the state is not required to open its files to the accused and allow him to search them and decide what is exculpatory. Accordingly, there is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defendant filed a motion for a bill of particulars that asked, inter alia, whether or not any dangerous weapon was found on the victim’s person or near his body at the scene of the crime. The state declined to answer this request on the ground that it was not required to reveal its evidence. Defendant assigns as error the trial judge’s refusal to order the state to answer this request.

As a general rule, pretrial discovery is not available to a defendant in a criminal case. State v. Kado, 300 So.2d 461 (La.1974); State v. Rose, 271 So.2d 863 (La.1973); State v. Hunter, 250 La. 295, 195 So.2d 273 (1967). Brady v. McCryland, supra, requires the prosecution to disclose evidence that is favorable to the accused. In State v. Woodruff, 281 So.2d 95 (La.1973), the accused, claiming self-defense as justification for his admitted homicide, moved for particulars as to whether a dangerous weapon or instrument was found on the victim’s person or in close proximity to the scene of the killing. The trial judge refused to order the state to respond to this request. During the trial, the state disclosed the existence of a gun near the victim’s body, which was admitted in evidence at trial. We held that the refusal of the state to disclose ■ its knowledge of the weapon prior to trial denied the accused due process of law under Brady, supra, in that he was deprived of the opportunity to fortify his defense of self-defense, and thus constituted reversible error.

Although defendant relies on Woodruff in support of this assignment of error, the facts in Woodruff are distinguishable from those in the instant case. Unlike the accused in Woodruff, defendant did not rely on a claim of self-defense at trial. Rather, he asserted that a third party shot the victim and that he was the object of a “frame-up” by the state’s witnesses. In addition, this case is further distinguishable from Woodruff in that no weapon was in fact found at the scene of the homicide. See State v. Thomas, 306 So.2d 696 (La.1975). Defendant argues, however, that he needed to know before trial of the existence vel non of a dangerous weapon near the deceased’s body so that he could plan his defense by deciding whether he would take the witness stand. This contention has no substance. The state alleges in its brief, and defendant makes no showing to the contrary, that testimony given during the presentation of the state’s case revealed that no weapon was located in the victim’s vicinity. Defendant had ample time to make, an informed decision as to whether he should take the stand. Therefore, the prosecution's failure to furnish the particular requested was not prejudicial. Accordingly, Woodruff is not applicable in this case; this assignment of error therefore lacks merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant next alleges that the trial judge committed error when he denied his challenges for cause of two prospective jurors. Defendant exercised peremptory challenges against both, and exhausted his peremptory challenges prior to completion of the panel. La.Code Crim.P. art. 800 (1966).

Article 797 of the Code of Criminal Procedure pertinently provides:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(4) The juror will not accept the law as given to him by the court;

The determination of the qualifications of a juror is within the sound discretion of the trial judge. State v. Frazier, 283 So.2d 261 (La.1973). We have repeatedly held that only when his exercise of such discretion is arbitrary or unreasonable, to the prejudicial injury of the defendant in obtaining a fair and impartial trial, will this court be warranted in setting aside a verdict. State v. Johnson, 263 La. 462, 268 So.2d 620 (1972).

Mrs. George Fink, the first prospective juror, was challenged for cause because she replied, in response to questions by defense counsel, that it would be difficult for her to vote for defendant’s acquittal unless he presented some evidence in his behalf. Defendant contends that the juror was incapable of recognizing the defendant’s presumption of innocence since she testified that she would have to hear “his side” of the case. Defense counsel, however, may have confused the prospective juror when he told her, at the outset of the examination, that “there will be witnesses called by both the state and by the defense on behalf of Alex Johnson.” Thus, it is reasonable to assume that Mrs. Fink, when she stated that she would require “a word from [defendant] or his witnesses” before making a judgment, was under the impression that it was incumbent upon defendant to present evidence in his favor..

After the trial judge explained to Mrs. Fink, however, that the accused was not required to present evidence and that it was the duty of the state to prove his guilt beyond a reasonable doubt, she unequivocally said that she could give defendant the presumption of innocence throughout the trial. Furthermore, in response to a question propounded by the prosecutor, she stated that she would return a verdict of not guilty if not satisfied that the state had proved defendant guilty beyond a reasonable doubt, even if defendant presented no evidence. Viewing the totality of Mrs. Fink’s testimony, we conclude that she was impartial and that she could accept the law as given her by the court.

The second prospective juror, James G. Shephard, was challenged for cause because he initially responded that he might give slightly more credence to the testimony of a deputy sheriff than to that of other witnesses. Defendant, relying on State v. Jones, 282 So.2d 422 (La.1973), contends that the witness was not impartial and that the challenge for cause should have been sustained.

State v. Jones is distinguishable from the instant case. In Jones, it appeared that there would be a direct conflict in the testimony of the accused and of a police officer. The prospective juror in Jones stated that in any event he would “go along with the policeman’s testimony.” Defendant does not allege that there was any direct conflict in the testimony of a defense witness and a deputy sheriff in the case sub judice. Moreover, although Mr. Shephard stated that he had a tendency to believe a deputy’s testimony, he also testified that he understood law enforcement officers were capable of committing errors and telling falsehoods and that he would, to the best of his ability, weigh the testimony of each witness according to the rules to be given by the court.

Upon consideration of the total testimony of Mr. Shephard, we cannot say that the trial judge, in denying the challenge for cause, abused the wide discretion accorded to him in determining the competency of jurors.' This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. S

Defendant, contending that there was no testimony or evidence at trial suggesting that he had a motive for killing the victim, alleges that the trial judge erred in denying his request for the following special jury charge:

In a criminal prosecution the absence of proof of motive by the State is a circumstance favorable to the accused. ‘Motive’ is the cause or reason that moves the will and induces action.

Article 807 of the Code of Criminal Procedure provides:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

Defendant points out that in State v. Johnson, 139 La. 829, 72 So. 370 (1916), and State v. Iles, 201 La. 398, 9 So.2d 601 (1942), this court stated that it would be proper to give the special charge requested by defendant if the prosecution presented no evidence of motive and if the accused had produced evidence from which the absence of motive might be inferred. In those cases, as in this one, defendant failed to show evidence from which an absence of motive might be inferred. Consequently, in both cases the rejection of the charge was held to be proper. In any event, because these cases arose prior to the adoption of the Criminal Code in 1942, their approval of this special charge must be regarded as superseded by the subsequent statutory definition of criminal offenses. “Motive” is not an element of second degree murder as defined in La.R.S. 14:30.1(1). The state is not obligated to prove that the accused had a cause or reason to commit the crime of second degree murder; it is required to prove that the accused had the “specific intent” to commit the crime. Hence, the requested special charge was not wholly correct and should not have been given. La.Code Crim.P. art. 807 (1966).

Furthermore, the trial judge’s general charge to the jury concerning the definition of specific intent adequately explained the necessity to prove that defendant actively desired the prescribed criminal consequences to follow his act or failure to act. Since the trial judge instructed the jury in the general charge as to the need to prove the defendant’s state of mind, the substance of the requested special charge was included in the general charge. Therefore, the special charge need not be given. La.Code Crim.P. art. 807 (1966). This assignment of error has no merit.

DECREE

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

DIXON, J., concurs, disagreeing with the treatment of bill #5.

      . Defendant perfected two other assignments of error; however, neither was briefed nor argued before this court and both are therefore considered abandoned. State v. Carlisle, 315 So.2d 675 (La.1975).

      . The entire transcript of the proceedings below is not before us. We have for our review only those portions of the transcript that defendant designated in support of his assignments of error.

      . Specific criminal intent is defined in La.R.S. 14:10(1) as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure .to act.”


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    Claude R. SLEDGE v. Andrew D. McGLATHERY, Jr.
    No. 57021.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Robert G. Pugh, Pugh & Nelson, Shreveport, for defendant-relator.
    Jack R. Gamble, Jr., Gamble & Sledge, Mansfield, for plaintiff-respondent.
   CALOGERO, Justice.

In this case we must determine whether the presiding judge of a Mayor’s court in Louisiana has the power and authority to appoint an attorney at law as counsel to represent an indigent defendant who has been charged with an offense punishable by imprisonment under the Municipal Criminal Code of the jurisdiction.

The trial court in this matter ruled that he does not have such power and authority, and therefore granted a preliminary injunction enjoining Andrew Duke Mc-Glathery, Jr., Mayor of the Town of Lo-gansport, from “refraining to withdraw his appointment of Claude R. Sledge to represent Archie Peterson as an indigent in proceedings against him [Archie Peterson] in the Mayor’s court, Logansport, DeSoto Parish, Louisiana.”

We granted writs upon application of the Mayor to review the judgment of the district court under our general supervisory jurisdiction.

The Town of Logansport is a political subdivision of the State of Louisiana, located in DeSoto Parish, Louisiana, and has as its current and duly elected Mayor, Andrew Duke McGlathery, Jr. As Mayor he serves in the capacity of judge of the Mayor’s court.

While the Mayor’s court was in session on the 22nd day of September and the 6th day of.October of this year, there appeared for arraignment one Archie Peterson, who had been charged with violation of certain offenses as defined by a Municipal Ordinance of the Town of Logansport.

Archie Peterson was not represented by counsel at the time of his apparance on September 22, 1975. It was judicially determined that he was indigent and, upon his request that an attorney be appointed to represent him, Claude R. Sledge, respondent herein, was so appointed. Mr. Sledge, an attorney admitted to practice in the courts of this state, refused the appointment then and ’on two other occasions, including October 6, 1975. Finally, under threat of contempt, Mr. Sledge accepted the appointment, but did nothing in connection therewith, and filed the instant litigation.

It is uncontested that respondent is a practicing attorney, regularly appears to represent defendants in the Mayor’s court in Logansport, is satisfied that Archie Peterson is indigent, is aware that defendant had requested that counsel be appointed for him, was appointed by the Mayor to represent Peterson, and refused this appointment. Mr. Sledge has expressed no complaint with respect to adequate compensation for the appointment. However, Mr. Sledge has made no attempt to consult with Archie Peterson or to represent him, and avers that he has no intention of complying with the appointment.

La.R.S. 33:441 sets out the jurisdiction of the Mayor’s court:

“Except as provided in Chapter 7 of Title 13, there shall be a mayor’s court in the municipality, with jurisdiction over all violations of municipal ordinances. The mayor may try all breaches of the ordinances and impose fines or imprisonment, or both, provided for the infraction thereof.”

These courts remain in existence today pursuant to Article V, Section 20 of the Louisiana Constitution of 1974 which provides in pertinent part that “Mayors’ courts . . . existing on the effective date of this constitution are continued, subj ect to change by law.”

Article V, Section 2 of the Louisiana Constitution of 1974, in pertinent part, guarantees that “[a] judge may issue all needful orders ... in aid of the jurisdiction of his court.” One such order would necessarily be appointment of counsel for indigents because Article I, Section 13 of the Constitution, provides:

“. . . At each stage of the proceedings, every person is entitled to assistance of counsel . . . appointed by the court if he is indigent and charged with an offense punishable by imprisonment. . . .”

There is therefore little dispute that Mayor’s courts are courts which have jurisdiction to conduct trials, determine guilt, and impose sentences including fines and imprisonment for breach of municipal ordinances. Judges of such courts may therefore issue needful writs in aid of their jurisdiction, including the appointment of counsel for an indigent charged with an infraction of an ordinance if that infraction may be punished with imprisonment.

The need to have indigent defendants who are confronted with the possibility of imprisonment represented by counsel was made constitutionally imperative by the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In that case the Supreme Court held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407 U.S. at 37, 92 S.Ct. at 2012. Mayor McGlathery was keenly aware of this constitutional imperative because on an earlier occasion he had accepted a plea of guilty from one Leon Wilson, Jr. without having notified Wilson of his right to counsel. Wilson’s conviction on the guilty plea was subsequently reversed by the district court for the 11th Judicial District, Parish of DeSoto. This Court denied writs in that matter. State ex rel. Wilson v. Webb, 278 So.2d 509 (La.1973).

Mayor McGlathery’s appointment of respondent Claude R. Sledge was therefore not only within his power and authority, but legally and constitutionally required, unless one or more of the arguments posed by respondent are found to have merit.

Respondent’s contentions are basically the following:

Respondent’s principal contention is that there was no evidence presented in the district court indicating the specific ordinance Mr. Peterson was charged under, nor what the possible penalty for the charged violation could be, if any. He points out that the ordinance was not introduced into evidence, nor was a certified copy filed of record with the Clerk of Court under the provisions of R.S. 13:3712; nor may this Court take judicial cognizance of a municipal ordinance. However, it was respondent Sledge who brought this action for injunctive (equitable) relief. It was his obligation, therefore, to carry the burden of proving that such relief should be granted by establishing that the Mayor of Logansport lacked authority to imprison people convicted for offenses committed against the town of Logansport. This he has not done and has not seriously contended that he could do. In light of the fact that everyone involved with this litigation knows as a matter of fact that Archie Peterson is subject to imprisonment if convicted of these offenses, we must conclude that defendant Peterson has been charged with a crime punishable by imprisonment under the Logansport municipal ordinance, and is due appointed counsel under Argersinger v. Hamlin, supra. Respondent’s argument lacks merit.

Secondly, respondent Sledge asserts that the resolution of the problem of appointed counsel in accordance with the Ar-gersinger mandate is exclusively a problem for the Louisiana legislature. Independent of the presence of specific laws on the subject, we believe that courts and judges have the inherent power, as well as the constitutional authority, to issue all meanful writs in aid of the jurisdiction of their courts. La.Const. art. 5, § 2. Such power and authority is essential to the existence of courts.

Relator complains additionally that because Mayor’s courts are not governed by the Code of Criminal Procedure, Article 17 of the Code, which describes the inherent power of courts, is therefore inapplicable. And akin to this he complains that lawyers are ill-equipped to practice in Mayors’ courts because lawyers do not have available the tools, included in the Code of Criminal Procedure, with which to work. We find no merit in this contention.

The inherent power of courts, fortified in this instance by a provision of the 1974 Louisiana Constitution alluding to Mayors’ courts as "courts,” and for the reasons expressed hereinabove, have the inherent power of courts, irrespective of the applicability of the Code of Criminal Procedure. While a Mayors’ court may not be a court of record, it is a court established by our Constitution and has, at the very least, the power of a sovereign to imprison.

Respondent’s final argument is that since La.R.S. 37:212 in its definition of “practice of law” outlines the performance of certain enumerated acts “before • any court of record in this state,” and since Mayors’ courts are not courts of record, no obligation to serve in a “court” of this type can possibly attach to the practicing of law as a profession. That statute, however, includes in its definition of “the practice of law” other matters or functions beyond simply appearing as an advocate or in a representative capacity before a court of record in this state. At any rate, R.S. 37:212 and 37:213, which make it a crime and prescribe a penalty for a non-attorney to engage in the practice of law, can hardly be authority for the proposition that qualified attorneys representing litigants in Mayors’ courts, who are exposed to incarceration upon conviction, are not themselves responding to a legally and constitutionally-sanctioned directive. There is no merit in any of the contentions of respondent.

For. the foregoing reasons, the judgment of the district court is reversed, the preliminary injunction heretofore issued by the trial court set aside, and the case remanded to the district court for such further proceedings consistent herewith as may be appropriate.

      . On April 15, 1974, the Town of Logansport enacted Ordinance No. 271 adopting the Model Municipal Criminal Code prepared through the combined efforts of the Louisiana City Attorneys Association, the Louisiana Municipal Association, and the Junior Bar Section of the Louisiana Bar Association as the Town of Logansport Criminal Code.

      . In fact, Mr. Sledge acknowledges that the judge advised him that lie would be adequately compensated for the appointment.

      . Mr. Sledge, of course, has assumed this posture for the purpose of this litigation, but he has testified that he would represent indigents in the Mayor’s court including Archie Peterson, if this Court should rule that the Mayor has the power to appoint counsel to represent indigents.

      . At this date, the legislature has not curtailed the jurisdiction of the Mayors’ court of the state.

      . La.R.S. 13:3711 ff allows the admission into evidence of certified copies of documents of municipalities of the state. R.S. 13 :3712 (B) provides in pertinent part that “[aRl courts of record in the state shall take judicial cognizance of the municipal ordinances . which may be enacted by governing authority of any town, city, municipality, or parish within their respective jurisdictions •whenever certified copies of such ordinances have been filed with the clerk of said court.” (Emphasis provided) See Bradford v. City of Shreveport, 266 So.2d 254 (La.App.2nd Cir. 1972), writs refused 263 La. 364, 268 So.2d 256 and Moore v. Concrete Pipe Products, Inc., 263 So.2d 481 (La.App.3rd Cir. 1972).

      . La.R.S. 15:422 lists those matters of which courts may take judicial notice; municipal ordinances are specifically excluded.

      . In the district court evidence was taken that the defendant Peterson had been charged with disturbing the peace by appearing in an intoxicated condition, in violation of Section 65 of Ordinance No. 271 and resisting arrest, in violation of Section 70. Both of these convictions carry a possible sentence of imprisonment. Furthermore, Mayor McGlath-ery, the Judge of the Eleventh Judicial District, and the Justices of this Court were all involved in the case of State ex rel. "Wilson v. Webb, supra, where defendant Wilson was serving a sentence imposed by the Mayor under the Logansport Criminal Code.

      . Article 931 of the Code of Criminal Procedure states that “[ejxcept where the context clearly indicates otherwise, as used in this Code: (1) ‘Court’ means a court with criminal jurisdiction or its judge. It does not include a mayor’s court or a justice of the peace. * * * ”


text:
    STATE of Louisiana v. Clyde N. ROGERS.
    No. 56631.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Manuel A. Fernandez, Perez, Fernandez, Seemann & Egan, Chalmette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. An-dry, III, Asst. Dist. Atty., for plaintiff-ap-pellee.
   CALOGERO, Justice.

Defendant appeals from his conviction for negligent homicide.

On June 19, 1974, at approximately 10:00 o’clock p. m., defendant was traveling on La. Highway 46, a two lane road, through an area commonly known as Pecan Grove. Along this stretch of the highway, oak trees growing at the side of the road form an arch over the highway. Street lights are set back behind the oak trees and provide essentially no illumination. Moonlight does not penetrate the trees. The road is very dark at night, and similar to a tunnel, according to one witness. Despite these conditions at the time of the accident and prior thereto, passing was permitted. The speed limit was 45 miles per hour.

As defendant, traveling east, was attempting to pass a vehicle, he struck and killed a 14 year-old boy who was riding his bicycle in the center of the west bound lane. A companion of the deceased, who was riding his bicycle near the shoulder of the highway, was uninjured. There was evidence that the bicycles were not equipped with lights or reflectors to make them visible in the darkness; further, there was evidence that the boys were wearing dark or non-white clothing. The driver of the vehicle which defendant was attempting to pass at the time of the accident, a Mrs. Nunez, testified that she saw the two boys only when they were illuminated by the headlights of the car approximately two car lengths in front of her.

Mrs. Nunez testified that she was driving about 40 miles per hour, that defendant pulled out to pass and hit the boy when approximately in line with her rear fender, and that his automobile then struck her car on the left front fender. According to Mr. Nunez, who was riding with his wife, defendant’s automobile locked front ends with the Nunez vehicle so that defendant had to speed up to free his automobile. Mrs. Nunez testified that she was not aware of any such “mating” of their automobiles, although she did recall that the vehicles made contact. ■ Damage to the Nunez vehicle was minor.

Defendant relies upon five assignments of error in urging reversal of his conviction and sentence. We shall discuss only two of those assignments, one of them just briefly.

At the close of the state’s case, defendant moved for a directed verdict of acquittal. He denotes the court’s denial of this motion as assignment of error no. 4. The thrust of his motion was that the state’s evidence did not prove criminal negligence, or “such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances,” the definition of criminal negligence contained in La.R.S. 14:12.

As we view the case, the directed verdict issue is a close one, but considering the evidence produced, we cannot say that the state presented no evidence whatsoever to prove criminal negligence. The motion for directed verdict was therefore properly denied. State v. Douglas, 278 So.2d 485 (La.1973).

We do, however, find merit in defendant’s second assignment of error. The trial judge, over a defense objection, qualified a St. Bernard Parish Deputy Sheriff as an expert in “the field of determining speed by skid marks.” After being qualified, the Deputy testified, again over objection, that in his opinion defendant’s speed at the time of the accident (one which he had not observed) was not less than 75 miles per hour. It is this trial court ruling, allowing the Deputy to testify as an expert and to give opinion testimony as to speed, which we find erroneous.

While R.S. 15:463 generally prohibits opinion testimony, R.S. 15:464 operates as an exception thereto and provides that “[o]n questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.” R.S. IS :465, a third statute, provides simply that an expert witness “must state the facts upon which his opinion is based.” Qualification of a witness as an expert is authorized by R.S. 15:466 which provides: “The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”

Determination of the competency of an expert witness is a question of fact and the trial court’s ruling should not be disturbed in the absence of manifest error. State v. Vassel, 285 So.2d 221 (La.1973); State v. Washington, 256 La. 233, 236 So.2d 23 (1970); State v. Nicolosi, 228 La. 65, 81 So.2d 771 (1955). These cases note, as does the statute, that the test of the competency of an expert is his knowledge of the subject. R.S. 15:466.

We must determine in this case whether the trial court erred as a matter of law in accepting this Deputy Sheriff as an expert in the determination of vehicle speed from skid marks.

On direct examination the following facts were elicited: the Deputy had been employed by the St. Bernard Sheriff’s department for three years; he had been assigned to accident investigation since May 6, 1974 (the accident occurred on June 19, 1974, trial was held on May 6, 1975); his duties in accident investigation include measuring skid marks and estimating speed; he was trained in making such estimates at the Accident Investigation School conducted at L.S.U.; the method he was taught originated from Northwestern University’s Traffic Institute and is generally used throughout the United States; he successfully completed the course conducted at L.S.U.; and he had never before qualified as an expert in a court of law.

On cross-examination, the Deputy Sheriff stated that the Traffic School was held May 6, 1974 through May 17, 1974; that classes were conducted eight hours a day Monday through Friday; that only part of the course concerned speed estimation; that the Traffic School was the only training he had; that the course consisted of lecture and training on the use of a template, plus some practical experience actually measuring and calibrating skid marks; and that he knew of no one who had completed the course who had qualified as an expert.

Upon questioning by the trial judge, the witness explained that in investigating an accident, he measures skid marks, determines the type of surface, and then by use of the template prepared by the Northwestern Traffic Institute, determines the speed of the vehicle. During further questioning by defense counsel, he testified that the “drag factor,” one of the variables on the template and one of the two items used to determine speed, contains a margin of error to allow for differences in vehicle weight, condition of tires, and other factors. He admitted that he did not understand the theory behind use of the template, and did not understand how the allegedly built-in margin of error accounted for the differences in vehicle weight (He stated “I don’t know how the thing works”). He further admitted that he could not work the mathematical formulas upon which the chart was based because he “didn’t go to school for trigonometry,” but that he did have a working knowledge of the template.

There is no reported Louisiana criminal decision in which, over objection, an expert has been qualified in speed determination or accident reconstruction. In two cases the issue was noted, but resolution of the issue on the merits was made unnecessary procedurally. In State v. Austin, 282 So.2d 711 (La.1973), a negligent homicide prosecution, an employee of the Shreveport crime lab was qualified, without defense objection, as an expert in “accident reconstruction.” This “expert” was allowed to give his opinion as to how the traffic accident occurred. On appeal, this Court stated in a footnote that because of the lack of a defense objection to the expert status afforded the witness, the correctness of that ruling was not before the Court. But we further stated that the opinion was not to be construed as approving of the use of experts to reconstruct accidents and we specifically noted that some jurisdictions refuse to allow such “experts.”

In an earlier negligent homicide appeal, State v. Robinson, 223 La. 595, 66 So.2d 515 (1953), this Court on original hearing approved expert testimony by a state trooper with twelve years experience as to his opinion of the speed of the accused’s truck. There were no skid marks in that case; the trooper’s opinion was based upon the force of the impact and the distance covered by the vehicles after the collision. On rehearing, we found that the trooper had not been offered as or qualified as an expert, and consequently we held that reversible error was committed when the trooper was allowed to give his opinion as to the speed of defendant’s truck at the time of the fatal collision.

The fact that there is no reported decision in Louisiana in which, with judicial approval, an expert in determining vehicle speed has been qualified does not militate against the qualification of such an expert. Determination of vehicle speed from skid marks, along with other relevant physical facts and the circumstances of an accident, is apparently a scientifically feasible endeavor which employs principles of physics and mathematics and takes into account mechanical functioning of motor vehicles. An opinion as to vehicle speed can be formulated sufficiently accurately by persons with knowledge obtained by special training or experience to be of assistance at trial. Such persons, adequately versed and furnished necessary relevant data, may after being qualified as experts, express opinions as to the speed of an automobile at the time of a collision even though they have not witnessed the accident. Such persons include law enforcement officers as well as engineers, physicists or other duly qualified witnesses. Annotation, 29 A.L.R.3d 248 (1970).

The only question in this case is whether the Deputy Sheriff was shown to have sufficient knowledge of the area so as to permit him to be qualified as an expert and to state his opinion of the speed of defendant’s car at the moment of impact. We believe that he was not shown to be sufficiently knowledgeable by virtue of special training or experience so as to be termed an expert in this area, i. e., speed from skid marks and other relevant data, and that the judge’s determination that he was an expert was manifestly erroneous, falling outside of that wide discretion normally permitted in the qualification of experts.

In addition to the very limited training (two weeks of schooling in accident investigation, only a small part of which directed itself to speed calculation and skid marks) and limited experience in measuring skid marks and estimating speed (his two week course of study was just five weeks prior to the accident and approximately one year before he testified), the Deputy involved admitted that he did not understand the theory behind the use of the template and had no comprehension of how the template works, that in effect he simply had been taught how to use the template, which given the necessary input and correct application, purports to express vehicle velocity prior to brake application by tire marks.

The template, presumably containing accurate and reliable scientific correlations, would normally constitute inadmissible hearsay, being extra-judicial, unsworn statements by persons not available for cross-examination. Picard v. Joffrion, 202 So.2d 372 (La.App. 1st Cir. 1967); Gray v. Turner, 245 Miss. 65, 145 So.2d 470 (1962); Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361 (1965). Reference to the template and its incorporated mathematical and scientific factors might well be permitted, however, by a duly qualified and actual expert witness who had employed these and other relevant factors in arriving at his opinion as to the speed of the motor vehicle. See 29 A.L.R.3d 253, § 2b. It is entirely another thing, however, for a person without the requisite special knowledge and training to give an “opinion” as to speed when his “opinion” is simply the reading of a template, or chart, “result.” The Deputy Sheriff by his own admission was only an “expert” in the use of the chart. The “opinion” which he expressed could hardly be said to be his own.

We conclude therefore that the Deputy Sheriff was not an expert in the field of determining vehicle speed by skid marks, and that the trial court’s ruling that he was and his attendant ruling permitting the witness to express his opinion as to defendant’s speed just prior to the accident were manifestly erroneous.

We find that the erroneous ruling was not only substantially prejudicial but that, in light of the marginal case otherwise presented by the state, it probably resulted in a miscarriage of justice. C.Cr.P. art. 921.

For the foregoing reasons the defendant’s conviction and sentence are reversed and the case remanded.

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

      . He was sentenced to five years at hard labor, suspended, and placed .on five years active probation. Conditions of the probation are that defendant not operate a motor vehicle during the five year term and that he serve the first weekend of each month in the parish jail during the first year of his sentence.

      .Although the earlier recitation of facts in this ojnnion accurately depicts the facts surrounding occurrence of the accident, the evidence before the trial court most helpful to the state’s case included the testimony of a St. Bernard Parish Deputy Sheriff who, after being qualified as an expert, opined that defendant was driving at a minimum speed of 75 miles per hour (this testimony is discussed more fully hereinafter), and the testimony of a witness that some 3 minutes before and 2% miles from the scene of the accident, he observed a white and red Challenger automobile being driven in a reckless manner, passing on a curve and thereby almost causing a head-on collision, and continuing to wind in and out, passing other vehicles. Defendant’s automobile was a black and red Challenger, but the witness testified that the automobile he saw weaving in traffic was the same vehicle he later saw on the side of the road at the accident scene in Pecan Grove.

      . This area of expertise is referred to as “Determination of vehicle velocity prior to brake application by tire marks.” White, Tire Dynamics (Motor Vehicle Research, Inc. 1956).

      . The Deputy arrived at the scene of the accident within minutes after it occurred. His expert opinion is based upon skid marks, totaling 160 feet prior to the ostensible point of impact and 272 feet thereafter, which he measured that night. He also looked at the tires on defendant’s automobile and noted that tlie highway was free from obvious debris such as gravel or shells.

      . The template, actually a traffic template and calculator, is a plastic, rule-type overlay, somewhat like a protractor, with various calibrations, including braking distance in feet, speed in miles per liour/feet per second, and drag factor expressed as a co-efficient of friction corresponding to various types of road surfaces. It apparently can be used to prepare scale maps of accident situations, to show positions of vehicles, to calculate speed through skidding distances, to estimate stopping and acceleration distances, to convert miles per hour to feet per second and vice versa, to get squares and square roots of numbers, and to measure angles and grades.

      . The expert witness interpretating skid marks is concerned with: (1) the Laws of Motion; (2) The Law of Conservation of Energy; and (3) Coulomb’s Law of Friction or the Coefficient of Friction. Cook, Spefed Calculations and the Expert Witness, 42 Neb.L.Rev. 100, 106. These laws apparently make possible the correlation of skid marks and approximate speed. These scientific principles are taken into account and presumably underlie the template’s calibrated scales.

      . The Deputy testified that the following factors would have no effect upon his determination of velocity: the weight of the vehicle; the fact that there was a second collision with another vehicle after the bicycle was struck; the fact that defendant’s car may have mated with the Nunez car; the width, temperature, tread design and inflation of the tires; the mechanical condition of the auto-bile,
      Ile stated that the condition of the tires would affect stopping distance but that this variable is taken into account in the margin of error built into the charts on the template.
      He had not read any scholarly works or treatises on speed estimation. He was not familiar with the term co-efficient of friction, but imagined (properly) that it was the drag factor.


author: CALOGERO, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Bruce McKAY.
    No. 56374.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Richard V. Burnes, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Bruce McKay was charged, along with Kenneth Juneau and Joseph Martinez, with the armed robbery of Willie Daigrepont. At his arraignment, while represented by court-appointed counsel, he entered a plea of not guilty. On the morning set for trial, December 9, 1974, after one of his co-defendants, Kenneth Juneau (who was represented by the same court-appointed attorney), had entered a plea of guilty, McKay changed his plea and similarly entered a plea of guilty in accordance with a plea bargain.

Before defendant was sentenced, McKay’s family retained counsel who filed a motion to appoint a sanity commission and a motion to withdraw defendant’s guilty plea. Sentencing was postponed and these motions were heard and denied on April 3, 1975. Defendant was then sentenced to five years in the custody of the Louisiana Department of Corrections. From this judgment he appeals, relying on three assignments of error.

Defendant McKay’s assignments of error attack the trial court’s ruling that he had the present capacity to proceed (present

sanity) ; the trial court’s ruling that the Boykin examination at the time of entry of the guilty plea was adequate, making his plea sufficiently free, voluntary, and intelligent so as to support the trial court’s decision not to permit its withdrawal; and the trial court’s more general ruling refusing to permit defendant to withdraw his guilty plea. We do not find merit in any of defendant’s assignments of error.

Defendant complains that the trial coutt erred when it ruled that he had the present capacity to proceed. Without reciting more than a few details concerning the evidence adduced on the plea, we note that the record shows that the defendant understood the proceedings against him and was able to assist in his defense C. Cr.P. art. 641. There was no indication that he could not remember the circumstances of the occasion which gave rise to the criminal charges against him. Defendant himself testified at the hearing on the motions. The transcript of his testimony demonstrates no confusion, and does not illustrate an inability to assist his attorney in his defense.

There was no error in the ruling of the court on the plea of present insanity.

With respect to the second specification of error concerning the examination pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), it is evident that this defendant, represented by court-appointed counsel, was adequately advised in open court of his constitutional rights, and it is evident that his guilty plea was freely, voluntarily, and understandingly made. In particular, we find from a review of the transcript that the trial judge advised the defendant of his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. Furthermore, the judge did ascertain that the plea was not coerced.

This assignment of error lacks merit.

Defendant’s third specification of error is his general assertion that the trial court erred in refusing to permit him to withdraw his guilty plea. Defendant relies upon several assertions: that his court-appointed counsel had a conflict of interest because he also represented co-defendants in the case; that his attorney purportedly persuaded him to plead guilty and that he was unable to withstand that persuasion; and his somewhat belated contention that he was not in fact guilty of armed robbery.

At the outset we note that determination to allow defendant to withdraw a guilty plea is within the discretion of the trial court and it will not be disturbed in the absence of manifest error.

Article 559 of the Code of Criminal Procedure provides in part that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” This statutory rule generally prevails in the United States. Y. Kamisar, W. LaFave, J. Israel, Modern Criminal Procedure (4th ed. 1974) p. 1186.

With respect to defendant’s three-pronged effort to have this court find an abuse of discretion on the part of the trial judge in refusing to permit withdrawal of the guilty plea, we find insufficient merit to warrant a finding of error in the trial court’s ruling. There was no conflict in the court-appointed attorney’s representing both defendant McKay and co-defendant Juneau. The record does not indicate that counsel unduly persuaded defendant to enter a plea of guilty. And his simple contention that he was not a co-conspirator with the other perpetrators of the crime (he claims that he “just went along for the ride”) was not sufficiently plausible, in light of his earlier explicit confession, to compel the trial judge to allow defendant to withdraw his guilty plea.

The only argument even approaching a meritorious one is that defendant was purportedly generally unable to withstand persuasion, that he vacillated between changing and not changing his not guilty plea, and that he ultimately decided to change his plea only at the last moment prior to trial. While his intelligence may have been borderline, he was not clearly retarded; and while he may have been a person easily led, the decision that was ultimately made was his own.

Although a decision by the trial court to allow the withdrawal of the guilty plea in this instance may well have been supported by the record and a concomitant respect for the exercise of constitutional privileges, we cannot, consistent with law, conclude that the trial judge, who gave this matter his most serious attention and who observed and heard the witnesses, abused the discretion vested in him by C. Cr.P. art. 559 when he refused to permit the withdrawal of the guilty plea. There is no error in the ruling of the trial court warranting reversal of this conviction.

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

DIXON, J., dissents with reasons.

BARHAM, J., dissents, being of the opinion the guilty plea should be set aside and that on remand there should be a new determination of defendants’ competency to proceed to trial.

DIXON, Justice

(dissenting).

I respectfully dissent.

As the majority opinion notes, C.Cr.P. 559 provides that the trial court may permit a plea of guilty to be withdrawn at any time before sentence is imposed. The trial court abused his discretion by not granting Bruce McKay’s motion to withdraw his plea of guilty.

Dr. Michel, a member of the sanity commission, reported that defendant could not assist his attorney in his defense in a meaningful manner. He testified that defendant had a mental age of “around nine, ten years of age . . . and this is as high as he will go as far as learning.”

Dr. Abramson, the other member of the sanity commission, reported that defendant could be “lead (sic) very easily.” Furthermore, he testified that defendant could be very easily led, even to the extent of affecting his plea of guilty.

The Division of Mental Health of the Louisiana Health and Human Resources Administration reported that defendant was functioning within “at least the borderline mentally retarded range of intelligence.” It diagnosed his condition as “schizophrenia.”

Dr. Saint, under whose direction the Division of Mental Health examined defendant, testified that defendant loses his differentiation between right and wrong under stress, that under pressure defendant becomes vulnerable, and that under stress defendant would lose the inhibition he would normally use in situations to judge what is wrong and right.

Defendant’s court appointed counsel informed McKay and Juneau that the decision whether to accept the plea agreement offered by the State was theirs alone. Counsel testified that his clients were indecisive about accepting the plea agreement. At a conference with counsel of Friday before the Monday trial, Juneau and McKay indicated that they would be willing to enter a plea of guilty. Yet on Monday morning they informed counsel that they wanted to go to trial. They asked counsel “what do you think” and he reiterated that it was not his decision to make. After court was convened, defendant had again changed his mind and, to the surprise of defendant’s parents, entered a plea of guilty.

Defendant’s mother and father testified they had endeavored to retain counsel to represent defendant but were unable to accumulate the necessary funds until after the plea of guilty had been entered. His mother further testified that defendant had told her he did not intend to plead guilty. On the Saturday before the trial date on Monday, having raised the money to employ other counsel (whose office was in Alexandria), Mrs. McKay failed to complete the arrangement only because of car trouble.

The civil law protects incompetents by providing safeguards for those who lack capacity to bind themselves in contract (see C.C. 1785 describing the incapacity attendant to minority; C.C. 1784 on the incapacity attendant to interdiction). Though there is no such provision in the criminal law, justice requires similar protection for the too compliant plea bargainer. It cannot be said that the rules of capacity to contract govern the plea arrangement, but this does not mean that incompetents are to be left helpless by the criminal law unless their mental infirmity is so great that they can meet the tests for insanity.

The evidence adduced showed that defendant was prone to making irrational decisions in times of stress and that he was very easily led. Defendant’s final decision to plead guilty was made at the last moment while he and co-defendant Juneau were vacillating in their decision whether to go to trial or accept the plea agreement. They decided to plead not guilty, they changed their minds, then changed their minds again, and finally decided to plead guilty. During the time defendant was trying to reach a decision, his parents were trying to procure the services of counsel to present his defense.

Defendant’s plea of guilty cannot be said to be intelligent in light of his mental age (between nine and twelve) and his vulnerable disposition. He was under stress, and he was prone to making irrational decisions in times of stress; he followed the lead of a co-defendant in making the decision finally to change his plea from not guilty to guilty. His motion to withdraw his guilty plea, filed prior to sentencing, should have been granted.

      . The motion on present capacity was the first matter taken up because Article 642 of the Code of Criminal Procedure requires that “[wlhen the question of the defendant’s mental incapacity to proceed is raised, there .shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.”

      . The issue is not entirely free from doubt because I)r. Richard R. Michel, a surgeon and general practitioner appointed by the court as one of the two members of the sanity commission, testified that defendant was able to assist ‘‘somewhat in this defense, not in a meaningful and effective manner” and that McKay “does not have the mental capacity to proceed.” (At the time he was examined, defendant was seventeen years old and had an I.Q. of 79; school records reveal lie scored an 84 on an earlier I.Q. test.) While Dr. Michel’s statements seem at first glance to indicate that defendant did not have the capacity to proceed, that indication was overcome by the evidence adduced at the hearing at which a number of witnesses were called, among them, in addition to the two members of the sanity commission, were Dr. Charles Saint, a psychiatrist, and several of defendant’s school teachers. On the basis of the evidence received, the trial judge ruled that defendant had the present capacity to proceed. The judge stated the reasons for his determination, as follows:
      “I have listened to the evidence very carefully and I feel that he is able to proceed in the trial of this case. I think the doctors who testified generally agree to that. Now, they did say there was some, may be a little bit hard to communicate, but they all agreed that he could communicate on the level that he has. And, the IQ’s that he has registered and the grades that he has achieved, ability to get along with classmates in school and so on, convince the Court beyond a reasonable doubt that he is able to proceed and to assist counsel in his defense. That will be my ruling

      . The court-appointed counsel had negotiated a plea bargain which called for defendant to plead guilty to armed robbery in exchange for receiving a sentence of five years, the minimum sentence for armed robbery.

      . The defendant stated that he was seventeen years old and had completed the ninth grade. He stated that he had been conferring with his attorney and wished to change his plea to guilty. The trial judge and the defendant then engaged in the following colloquy:
      “BY THE COURT:
      Before the Court can accept your plea I must first be sure you understand what you’re doing. You’re charged with armed robbery. This is a serious offense. And it means you will have to serve time with the the Department of Corrections. Not only that, it means that you will lose certain rights of citizenship until you get a pardon. Do you understand that?
      “BY THE DEPENDANT:
      Yes sir.
      “BY THE COURT:

        Is anyone making you plead guilty?

      “BY THE DEPENDANT:

        No sir.

      “BY THE COURT:

        Are you doing this of your own free will? “BY THE DEPENDANT:

        Yes sir.

      “BY THE COURT:
      All right. You have talked to your lawyer about this repeatedly, many times, I’m sure. “BY THE DEPENDANT:
      Yes sir.
      “BY THE COURT:
      All right. Now, you know you have an absolute right to a jury trial. You don’t have to plead guilty, you understand that? “BY THE DEPENDANT:

        Yes sir.

      “BY THE COURT:
      And, you understand that it’s, the burden is on the state to prove you’re guilty beyond a reasonable doubt?
      “BY THE DEPENDANT:
      Yes sir.
      “BY THE COURT:
      To the jury? Now, if I accept your jilea of guilty it means that you’re giving up yoUr jury trial. You’re, also giving up the District Attorney’s calling witnesses to prove the case against you. You understand? “BY THE DEPENDANT:

        Yes sir.

      “BY THE COURT:
      .There will be no witnesses called. And, it also means that you’re making the confession yourself. You’re saying I’m guilty of this crime. I want to plead guilty, which you are not required to do. You understand that?
      “BY THEI DEPENDANT:
      Yes sir.
      “BY THE COURT:
      And, you tell the Court that you’re willing to do this this morning with your lawyer standing beside you?
      “BY THE DEPENDANT:
      Yes sir.
      “BY THE COURT:
      All right. Has your lawyer informed you or are you aware of the fact that there’s been some talk between your lawyer and the District Attorney about what you might expect if you pelad (sic) guilty?
      “BY THE DEPENDANT:
      Five years.
      “BY THE COURT:
      Five years where?
      “BY THE DEFENDANT:
      ANGOLA.
      “BY THE COURT:
      At Angola. All right. So, rather than take a chance on a' trial and maybe get more,, you’re willing to enter this plea and take this sentence;
      “BY THEI DEPENDANT:
      Yes sir.
      “BY THE COURT:
      And, that’s _ you’re aware of what you are supposed to get?
      “BY THE DEPENDANT:
      Yes sir.
      “BY THE COURT:
      All right. The Court has interviewed the young man and his lawyer. Mr. Michael Kelly is right beside him and I think he understands what he’s doing. His right, his constitutional rights have been explained to him and the Court will accept his plea of guilty and remand him for sentence January ninth. So, you will have to come back without further notice on that day. ...” (Emphasis provided)

      . Although this rule has not been found constitutionally infirm, see Justice Marshall’s dissenting opinion in Dukes v. Warden, Connecticut State Prison, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972).

      . This same attorney was appointed to represent the co-perpetrator Martinez, but only after the guilty pleas of McKay and Juneau liad already been entered.

      . Counsel informed defendant that the decision of whether to enter the negotiated plea was his alone. He told defendant it was his duty to represent him if he chose to go to trial and that he would do the very best job he could. He made defendant aware of the realities of the situation: that there were damaging statements which would be introduced against him including a confession (the court had ruled against defendant on a motion to suppress) ; and that he might receive a greater sentence than the agreed-upon minimum five year sentence if convicted as a result of trial.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Billy CHAFFIN.
    No. 56627.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      John Saunders, Mamou, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Alfred R. Ryder, Dist. Atty., Errol D. Deshotels, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Billy Chaffin, was charged by bill of information with possession of marijuana with intent to distribute, in violation of R.S. 40:966A. He was convicted in a jury trial on March 26, 1975 and subsequently sentenced to imprisonment for a term of five years and a day. On appeal he relies on five assignments of error.

Assignments of Errors Nos. 1, 2 and 3

The defendant filed a pre-trial motion to suppress certain evidence seized from his residence and vehicle pursuant to a search warrant. To the trial judge’s denial of the motion to suppress the evidence, defendant assigns these errors.

The attack on the search warrant is three-pronged, defendant contending (1) it does not contain probable cause for its issuance because it contains nothing about the reliability of Larry Duplechan; (2) it does not contain probable cause for its issuance because it is based on stale information; (3) the warrant did not properly describe the place to be searched.

Article 162 of the Code of Criminal Procedure states:

“A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
“A search warrant shall include a reasonable description of the things to be seized. When a warrant authorizes the search of a place, it shall designate the place to be searched. When a warrant authorizes the search of a person, it shall name or describe the person to be searched.”

It is well settled that the affidavit must recite facts establishing to the satisfaction of the judge, not the affiant, that probable' cause exists for the issuance of the search warrant. State v. Flood, 301 So.2d 637 (La.1974); State v. Paciera, 290 So.2d 681 (La.1974).

The factual information which is the foundation for the determination of probable cause must be contained in the affidavit. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Mere suspicion or belief is not sufficient to establish probable cause. State v. Wells, 253 La. 925, 221 So.2d 50 (1969).

With these principles in mind, the recitals of the affidavit which served as the basis of the application for the search warrant and its subsequent issuance must be examined. The affidavit in its entirety states:

“The reason and facts for the request of this Search Warrant are: While working as a Deputy Sheriff for the Sheriff of Allen Parish as an undercover agent, I met Billy Chaffin of Kinder, La. From information received from the Sheriff’s office of Allen Parish, and information I received personally from various persons in Kinder, La., Billy Chaffin was suspected to be a distributor of marijuana and other controlled Dangerous substances. Because of this information, the Sheriff’s Office of Allen Parish assigned me to watch the residence of Billy Chaffin, which residence is described above, in Kinder, Allen Parish, La., which residence is occupied by Billy Chaffin’s father, and where Billy Chaffin resides, and I then proceeded to keep the Billy Chaffin residence under surveillance. I started writing down the names of persons visiting Billy Chaffin’s home and writing down their vehicle license numbers. After a few days the Sheriff’s Office advised me to write down the date, time, vehicle make and model and license numbers and on June 1, 1974 I started doing this, and I attach hereto and make a part of this affidavit the information I obtained while keeping the Billy Chaffin home under surveillance. On the date of July 6, 1974 at approximately 8:10 P.M. I met Larry Duplechan of Kinder, La. and asked him if Billy Chaffin could get me a bag of marijuana that Larry had told me earlier that he would try to get for me. About 8:25 P.M. Billy Chaffin drove up and parked beside Larry, and Larry got in Billy’s car and a few minutes later Larry got back in his car. I went back to my trailer and Larry arrived at my trailer at 8:35 P.M. and as he entered the trailer he handed me a bag of what I suspected to be marijuana and I paid Larry $10.00 for the suspected marijuana. I then placed the bag of suspected marijuana in an evidence envelope and later I gave it to Deputy Sheriff Floyd Case. Attached hereto and made a part of this affidavit is my statement of this purchase dated July 6, 1974. I have worked as an undercover agent before for about 15 months and during this time I obtained evidence in numerous cases which evidence was used to .convict persons of crimes involving controlled dangerous substances. I have testified in court for trial in prosecution of violations of Controlled Dangerous Substances in the Parish of East and West Carroll, Caddo, DeSoto and they resulted in convictions or pleas of guilty.”

The first argument that the affidavit fails to state sufficient facts to satisfy the probable cause requirement because nothing is said about Duplechan’s reliability is without merit. The affidavit states that the affiant herself, after asking Du-plechan to see if Chaffin could obtain a bag of marijuana for her, witnessed Chaf-fin drive up beside Duplechan’s car, Duple-chan get out of his car and get into Chaf-fin’s, and shortly thereafter return to his car. Ten minutes later, at the affiant’s trailer, Duplechan turned over a bag of marijuana to her. Duplechan’s reliability is not necessary to establish probable cause since he was acting in response to affiant’s request to obtain marijuana from Chaffin. What the affiant saw, while perhaps short of establishing guilt beyond a doubt, was consistent with guilt and established probable cause. State v. Paciera, supra; State v. Hightower, 272 So.2d 363 (La.1973).

Defendant also contends that there was no probable cause for issuance, because the information was “stale,” in that the warrant issued fifty days after the alleged July 6, 1974 transaction. We cannot agree.

The remoteness of the facts used to justify the issuance of a search warrant must be considered in light of the facts and circumstances of each case. State v. Flood, supra. , In Flood, we upheld a warrant issued eighty-three days after the alleged crime. Here, surveillance of Chaf-fin’s residence for drug-related activity continued after the July 6, 1974 incident. (Evidence of surveillance, submitted with and made a part of the affidavit, indicated that the investigation of drug-related activity around the Chaffin residence continued at least until August 11, 1974). Moreover, the investigation of Chaffin was just part of a continuing parish-wide effort, culminating in the August 26, 1974, raids, aimed at reducing the illicit drug traffic in Allen Parish.

Affidavits must be tested and interpreted by magistrates and courts in a commonsense and realistic manner. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), cited with approval in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In the instant case, considering all of the facts before the judge, the information was sufficiently recent so as to justify a finding of probable cause at the time the warrant issued. State v. Humble, 309 So.2d 138 (La.1975).

Finally, defendant alleges that the warrant did not properly describe the place to be searched. The warrant describes Chaffin’s residence as “located on Fourth Street in Kinder, Allen Parish, La., being the second house on the East side South of the intersection with Third Ave. with a chain link fence around the house.” In fact, Chaffin’s house was the fifth house on the East side South of that particular intersection. Defendant alleges that this flaw is fatal to the warrant. We disagree.

The officers knew which house was in fact Chaffin’s residence, since it had been under their surveillance for months prior to the raid. The right house was in fact searched. Moreover, no contraband was found in the house. All of the marijuana introduced into evidence at the trial was found in defendant’s car, which was correctly described by make, model, color and license number. See U. S. v. Melancon, 462 F.2d 82 (5th Cir. 1972), cert. den., 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972); State v. Lampkin, 253 La. 337, 218 So.2d 289 (1969).

Assignments of Errors Nos. 1, 2 and 3 are without merit.

Assignments of Errors Nos. 4 and 5

These assignments relate to alleged reversible errors occurring during the district attorney’s closing argument to the jury. At one point in his closing argument the district attorney stated:

“The Louisiana law defines possession as follows; ‘Possession can be actual or constructive. Actual possession of a drug is where a person has a drug in his physical custody. Constructive possession of a drug is where a person does not have the drug in his physical cüsto-dy, but the drug is subject to his dominion and control.’ All right, this was Billy Chaffin’s car, it was found in his car, so he would have possession. Under the law, this is constructive possession.”

Defendant did not ask for a mistrial, but simply requested a full instruction on the law. There is no allegation that the judge did not instruct the jury properly and'completely on the law as it relates to possession of a controlled dangerous substance with intent to distribute. Therefore, there is no merit to defendant’s contention that the prosecutor’s remarks were so prejudicial as to constitute reversible error. State v. Elam, 312 So.2d 318 (La.1975).

Finally, defendant objected to the prosecutor’s remark:

“. . . He’s saying young people use it. Some of them will try it and a few of them get hooked or maybe a lot of them get hooked. But the ones that do get hooked, they are hooked for life...."

Defendant contends that the district attorney was going beyond the record, arguing a position that is contested by most medical authorities. Defendant contends that the argument appeals to emotion and substantially prejudiced him and therefore constitutes reversible error.

Without expressing any opinion as to the medical aspects of the issue, we cannot agree with defendant that he was so prejudiced by this remark that his conviction must be reversed for that reason. In State v. Dennis, 250 La. 125, 139, 194 So.2d 720, 725 (1967), we held:

“Under the jurisprudence of this Court, before a verdict approved by the judge is set aside on the ground of improper argument, this Court must be thoroughly convinced that the jury was influenced by the remarks, and that they contributed to the verdict. State v. Jackson, 227 La. 642, 80 So.2d 105.”

No motion for a mistrial was made, nor was there any objection to the judge’s instructions. Thus, we can only conclude that the error, if any, was not of sufficient magnitude to warrant a reversal. State v. Coates, 273 So.2d 282 (La.1973).

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

Accordingly, the conviction and sentence are affirmed. • ■


author: CALOGERO, Justice. DIXON, Judge

text:
    STATE of Louisiana v. Richard REED.
    No. 56691.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Vincent Wilkins, Jr., Acting Director, Roland T. Huson, III, App. Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty.. Gen., Ossie Brown, Dist. Atty., Ralph L. Roy, James E. Boren, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Richard Reed was charged in an indictment with committing aggravated rape, a violation of R.S. 14:42. He was tried by jury and found guilty of simple rape on January 12, 1973. He was sentenced to serve twenty years imprisonment at hard labor. On appeal, this Court reversed his conviction and remanded the case for a new trial. State v. Reed, 290 So.2d 835 (La.1974). This Court held that the introduction into evidence, on rebuttal, of a tape recorded statement given by a witness was erroneous. The taped statement was introduced to impeach that same witness’ testimony from a preliminary hearing which had been introduced in transcript form by the defense. Because the witness had died before the case went to trial, no foundation could be laid by the state to prepare for the introduction of the impeaching, tape recorded statement as is required by La.R.S. 15:493. Hence, the admission of the taped statement was held to be reversible error.

Reed was retried beginning on July 22, 1974 and again convicted by a jury of simple rape. On August 14, 1974 he was again sentenced to serve twenty years at hard labor, with credit for time served.

Reed now appeals this second conviction to this Court, relying on twenty-nine assignments of error. Seven of these assignments were not briefed and thus may be deemed abandoned. State v. Domingue, 298 So.2d 723 (La.1974). The remaining twenty-two assignments were consolidated in defendant’s brief into six general classifications. These classifications include: 1) the jury selection; 2) the admission into evidence of an exculpatory statement made by defendant to the police; 3) the admission into evidence of defendant Reed’s testimony at his prior trial on this charge; 4) alleged prejudicial remarks made by the prosecutor; 5) the denial by the trial judge of defendant’s motion for a directed verdict; and 6) an alleged comment upon the evidence by the trial judge.

JURY SELECTION: Assignments of Error Nos. 1-4

The defendant assigns four errors relating to the selection of the petit jury which tried him. Defendant urges first that the Louisiana procedure which was in effect at the time of defendant’s trial unconstitutionally discriminated against women. Defendant admits that his trial took place before the United States Supreme Court decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), which held that the Louisiana system of making women register in order to serve on juries was unconstitutional. In Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), the United States Supreme Court held that the Taylor decision was not constitutionally required to be applied retroactively. Then, in State v. Rester, 309 So.2d 321 (La.1975), the Louisiana Supreme Court held that the Taylor holding would not be applied retroactively in Louisiana. This assignment is without merit.

Defendant further argues that the petit jury was unconstitutionally constituted because the state peremptorily challenged every prospective juror who was black.

In Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the United States Supreme Court held that the fact that the prosecutor uses his peremptory challenges to strike every qualified member of the defendant’s race from the jury panel does not constitute a denial of due process or equal protection, where there is no sufficient showing of a historical pattern of exclusion. The Court stated that “purposeful discrimination may not be assumed or merely asserted. It must be proven . . . .” 380 U.S. at 205, 85 S.Ct. at 827. Defendant argues that Swain imposes an impossible burden of proof, and proposes a new test for determining a historical pattern exclusion. This proposed test is the number of lawsuits in which the issue is raised, and defendant cites seven cases in which the issue of systematic exclusion of blacks from jury service in East Baton Rouge Parish has been raised. of

Defendant’s argument is without merit. This Court adheres to the rule of Swain and will not overturn a conviction on the basis of systematic exclusion of blacks through peremptory challenges by the state absent proof of that systematic exclusion.

Defendant urges that the trial court erred when it denied defendant’s motions that two prospective jurors be challenged for cause. One of the prospective jurors stated during his voir dire examination that he was a reserve deputy sheriff and had once ridden with a policeman who was to be a state witness.

Article 797 of the Louisiana Code of Criminal Procedure states in part that the state or the defendant may challenge a juror for cause on the ground that:

“(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.”

This article does not specifically include a relationship between a prospective juror and a witness, but the defendant argues that the article should be jurisprudentially extended to allow challenge for cause on the basis of the relationship. Although a juror’s relationship with a witness is not specifically included in Section 3, it might be argued that the relationship could affect the partiality of the juror such that it is covered by Section 2 of Article 797. In the case before us, however, we do not find a reasonable basis to conclude that the relationship between the witness and this prospective juror could have caused the juror to fail to render an impartial verdict. The record before us reveals that the trial court questioned the juror, who asserted that he could be fair and impartial to the defendant, that he knew nothing of the facts of the case, that he could base his verdict solely on the evidence presented at trial, that he could afford the defendant the presumption of innocence and require proof beyond a reasonable doubt to convict. The prospective juror also declared that the fact that he had ridden on patrol with the witness one time several months prior to the trial date would have no effect on him when he heard the witness testify. Because the trial judge was thoroughly satisfied that the potential juror would be impartial, he did not err when he overruled defendant’s challenge for cause. See State v. Douglas, 256 La. 186, 235 So.2d 563 (1970).

The other prospective juror who was challenged for cause had stated on voir dire examination, among other things, that he felt that the “races should not mix.” Defendant argues that, in a case where the defense was that the white victim and the black defendant had engaged in consensual sex, this opinion was sufficient ground for challenging him for cause under C.Cr.P. art. 797(2). That section, quoted above, states that the primary objective of the trial judge is to determine whether the juror “can render an impartial verdict according to the law and the evidence.”

This prospective juror stated that he could be a fair and impartial juror, could apply the law as given by the court, and would believe evidence that a white woman and a black man had engaged in consensual intercourse. This Court has recently held that a prospective juror’s opinion about the inadvisability of racial intermarriage, essentially the same opinion harbored by this juror, does not prove that he cannot be an impartial juror. State v. O’Conner, La., 320 So.2d 188, decided October 1, 1975. Although the prospective juror in the instant case did respond to one question with the statement that the “races should not mix,” this was an isolated, though perhaps candid, comment among a multitude of additional responses which established his ability to be impartial. In light of the prospective juror’s responses as a whole, we do not find that the trial judge erred when he overruled defendant’s challenge for cause.

These assignments of error lack merit.

EXCULPATORY STATEMENT: Assignments of Error Nos. 12,13,18

The second argument defendant makes is that it was error for the trial judge to allow the state, in its case in chief, to play to the jury a tape-recorded statement made by defendant. The statement had been given to the police in the early morning hours of the day following the evening of the crime. The defendant had been properly Miran-dized, although he had refused to sign a waiver of rights form. In the statement, defendant' Reed admitted walking down a street with the victim on the night in question, along with a group of other young men. He stated that someone hit the girl’s boyfriend, and as the group scattered, he saw another boy drag the victim into a ditch. He did not admit to having intercourse with the victim, consensual or otherwise, nor did he say that he saw anyone else have intercourse with her. This statement was admitted at trial over objection by defendant.

In order for any evidence to be admissible, it must be relevant. As defined by the La.R.S. 15:441,

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

And evidence that would be inadmissible for one purpose may be properly admitted if it is admissible for another. La.R.S. 15:442. The statement at issue here would have been inadmissible if it had been introduced solely to impeach defendant’s credibility, because it was introduced in the state’s case in chief, not after the defendant had testified. The reason for this is, of course, that a witness cannot be impeached before he takes the stand. La.R.S. 15:484. Since the defense attorney had stated in his opening statement that the defendant would establish that he did have intercourse with the victim, but that she had consented, the introduction of this exculpatory statement did tend to “impeach” the case which the defendant’s attorney promised to establish. Even if we do not accept the state’s contention that it is entitled to impeach the case which defendant’s attorney promised to establish, it does not follow that the statement' is necessarily inadmissible, if it were relevant for another purpose.

This statement was admissible because it was relevant to establish two elements of the state’s case. First, it was an admission that the defendant was present at the scene of the crime. Only two of the six or eight people who were at the scene testified at the trial, the victim and her boyfriend. The victim positively identified the defendant as the man who raped her, but her boyfriend testified that he could not identify defendant as being in the group of young men who had walked down the road with them that night. In light of this evidence, it was important for the state to establish conclusively that defendant was at the scene d‘f the crime. Defendant’s statement to police was relevant because it admitted that he was at the scene.

Likewise, defendant’s statement tended to negative a defense of consent, and for that reason was properly a part of the state’s case. It is the state which bears the burden of proving beyond a reasonable doubt that the crime of rape occurred, and one of the elements of rape is that it is intercourse “without the lawful consent of the female.” La.R.S. 14:42, 43. In other words, it is not a defendant who must prove that the victim consented, but the state which must establish beyond a reasonable doubt, among other things, that the victim, non-consenting, was raped. In his statement to the police, defendant described an incident which began with two asr \ults. (The victim’s boyfriend was hit on the side of the head, and the victim was dragged into a ditch). It is unlikely that consensual intercourse, unaffected by fear, would have succeeded these assaults. Defendant’s statement, therefore, is relevant to the state’s case because it tends to negative the possibility that the intercourse was purely consensual.

We find, therefore, that the exculpatory statement which defendant made to the police was properly admitted into evidence.

These assignments of error lack merit.

PRIOR TRIAL TRANSCRIPT: Assignments of Error Nos. 14-17 and 19

In his previous trial, defendant took the stand to testify that he had had intercourse with the victim on the evening in question but that he and she knew each other because they lived-in the same neighborhood, that they had had intercourse approximately six times previously, and that she had consented to their intercourse on this occasion. At his second trial on this charge, the state introduced, over defendant’s objection, and as a part of its case in chief, the transcript of this testimony. The trial judge ruled that the transcript was admissible and allowed it to be read to the jurors.

The defendant initially argues that the trial judge erred when he admitted this transcript because the admission violated defendant’s fifth amendment privilege against self-incrimination. Although defendant admits that this privilege may be waived, he argues that a waiver in one proceeding does not affect his right to invoke the privilege in a separate and independent proceeding, citing Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961). This case is inapposite to the issue here. It involved a retrial situation in which defendant did not testify at his first or second trial on the charge and then did take the stand at a later trial, whereupon the prosecution attempted to use the fact of defendant’s prior silence to impeach his testimony at the later trial. In the instant case, of course, defendant took the stand at the first trial, and it was at the second trial, before the defense presented its case, that the state offered it as evidence against him. Contrary to the assertion of defendant, the long-standing federal rule in this area is that a defendant in a criminal case who takes the stand in his own behalf and testifies without asserting his privilege against self-incrimination thereby waives the privilege as to the testimony given so that it may be used against him in a subsequent trial of the same case. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); United States v. Bohle, 475 F.2d 872 (2nd Cir.1973); Edmonds v. United States, 106 U.S.App.D.C. 373, 273 F.2d 108 (1959), cert. denied, 362 U.S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012. The introduction of the transcript, therefore, did not violate defendant’s privilege against self-incrimination.

Both the state and defense argued at various times the applicability of the case of Harrison v. United States, supra. In that case the United States Supreme Court upset a conviction where first-trial testimony of a defendant, given after the government’s introduction of confessions subsequently held unlawful on appeal, was introduced at a second trial following remand. The Court felt that defendant’s testimony from the first trial could not be used in the second because he had been forced by the admission of inadmissible evidence to take the stand at the first trial. Defendant’s testimony then became “fruit of the poisonous tree” and hence inadmissible at a later trial. In the first trial of defendant Reed, however, the state introduced only on rebuttal the evidence which was held inadmissible on appeal, Reed having taken the stand before any illegal evidence was introduced. The rule of Harrison does not apply in this case.

Defendant also argues that the trial transcript was inadmissible because its admission violates Article 857 of the Louisiana Code of Criminal Procedure which states that:

“The effect of granting a new trial is to set aside the verdict or judgment and to permit retrial of the case with as little prejudice to either party as if it had never been tried.”

Defendant points out that the comment following this article explains that “the slate is wiped clean when a new trial is granted.” Defendant concedes that the former transcript could he used for impeachment purposes, notwithstanding the apparently unequivocal language of Article 857, but he virgorously contends that the testimony could not be properly introduced in the state’s case in chief.

The full import of Article 857 is not readily apparent from a reading of its language and of the jurisprudence interpreting it. As a minimum, it would seem that the article was intended to mask from the jury members the fact that a defendant before them had previously been tried, with their possible conclusion that he had previously been convicted. Had the prosecutor announced that the statement was prior trial testimony, we would have serious questions about this assignment of error. Instead, we notice that the prosecutor was careful to describe the transcript as “the testimony of the defendant in this matter on a prior occasion” when referring to this transcript in front of the jury. It was defense counsel who made it plain to the jury through his comments that the statement was defendant’s testimony at a former trial. In any event, we must, in order to resolve the issue before us, answer this question: would the introduction of the defendant’s testimony from his prior trial violate Article 857 so as to prevent the state from introducing that transcript in its case in chief? We hold that it would not. A defendant who has made a trial statement, which is not only voluntary and under oath but also clothed with all of the constitutional protection which our justice system offers, cannot be heard to say that his prior testimony cannot be introduced to a subsequent jury determining defendant’s guilt on the same charge. The law must presume that people under oath speak the truth, and we cannot conclude that the law requires us to determine that defendant’s prior, presumably truthful, statement could “prejudice” him later. The use of the statement might, of course, cause defendant to suffer some tactical disadvantage. But both parties are inherently prejudiced tactically at a retrial simply because they both have exposed their cases to the other side. As we read Article 857, it does not stand as a bar to merely tactical prejudice. We must conclude, therefore, that a defendant who takes the stand in his own defense is not protected by C.Cr.P. art. 857, when the state, at a subsequent trial on the same charge, seeks to introduce that testimony to a jury, so long as the state does not make it apparent to the jury that the testimony was from a prior trial.

Having concluded, then, that the defendant Reed was not protected from the introduction of this testimony because of the fifth amendment privilege against self-incrimination, the rule of Harrison v. United States, supra, or C.Cr.P. art. 857, we turn to the remaining issue: did the trial judge err when he allowed the introduction of the testimony in the state’s case in chief? If defendant Reed had taken the stand at his second trial and testified in a manner inconsistent with his previous testimony, the state could certainly have introduced the statement, after the proper foundation, to impeach his credibility. The state, however, introduced the statement in its case in chief, immediately after it had introduced defendant’s exculpatory statement to police, discussed above, and before defendant had had the opportunity to take the stand in his own defense.

As we discussed above, the fact that a statement has the effect of impeaching a defendant’s case will not bar its introduction if it has independent relevance. La.R.S. 15:442. This statement has such relevance. The statement tends to prove two elements of the state’s case: that the victim did have intercourse on the evening in question, and that the defendant was the person with whom she had intercourse. Because the testimony was relevant to prove these essentials of the state s case, it was admissible irrespective of the fact that it had the effect of impeaching the defendant’s previously-introduced exculpatory statement.

This assignment of error lacks merit.

REMAINING ARGUMENTS:

Defendant Reed’s other assignments of error raise insubstantial issues relating to these arguments: alleged prejudicial remarks made by the prosecutor, the denial by the trial judge of defendant’s motion for a directed verdict, and an alleged comment upon the evidence by the trial judge. We have examined these assignments carefully and have determined that they lack merit.

For the reasons assigned, the conviction is affirmed.

DIXON, Judge

(dissenting).

The challenges for cause were erroneously denied.

      . The state could have used the statement when it cross-examined the witness at the preliminary hearing and introduced it then, but desisted from confronting the witness with it at that time.

      . This exculpatory statement was also introduced at defendant Reed’s first trial on this charge, but it was introduced on rebuttal to impeach Reed’s credibility after he had taken the stand in his own defense. Reed had admitted on the stand that he had had intercourse with the victim, but testified that she had consented. To impeach his testimony, the state introduced this earlier exculpatory statement to police in which he denied having had intercourse with her. Reed had not taken the stand prior to the state’s effort to introduce the exculpatory statement. In fact, he did not ever take the stand at the second trial, except for the limited purpose of testifying as to the voluntariness of the lineup, out of the presence of the jury.

      . Similarly, in a homicide prosecution, the state bears the burden of proving beyond a reasonable doubt that the homicide was feloniously committed and was not perpetrated in self-defense. State v. Patterson, 295 So.2d 792 (La.1974).

      . The United States Supreme Court reversed defendant’s conviction in Stewart on the grounds that the prosecutor’s comments were highly prejudicial.

      . This Court held that the statement was inadmissible because it violated both a statutory rule (La.R.S. 15:493 which requires that a foundation be laid before the credibility of a witness may be impeached) and defendant’s constitutional right to confront witnesses against him (guaranteed by the sixth and fourteenth amendments to the United States Constitution and Article 1, § 9 of the Louisiana Constitution of 1921).

      . The record reveals the following exchange as the state offered the transcript in evidence:
      “PROSECUTOR: This is the testimony of the defendant in this matter, on a prior occasion.
      DEFENSE ATTORNEY: Yes. Uh— Specifically, Your Honor, it’s the testimony of a prior trial, isn’t that correct, Mr. Roy?
      PROSECUTOR: Beg pardon?
      DEFENSE ATTORNEY: It’s the testimony of a prior trial, is that correct.
      PROSECUTOR: Well, you’re saying that. I say it’s on a prior occasion, dealing with this matter. I mean, you — those are your words. I — ”

      . It should be noted that had the defendant consistently admitted that he had intercourse with the victim on the night in question, as his attorney maintained in the opening statement, then there would have been no need for the state to introduce further proof of them. However, after the state began to put on its case, the defense attorney changed his position. In his cross-examination of state witnesses and in his fervent attack on the victim’s identification of the defendant at the line-up, the defense attorney made it clear that he was not conceding that it was Reed who had intercourse with the victim on the evening in question. Therefore, the state properly attempted to prove the elements of identity and intercourse.