author: DIXON, Justice. TATE, Justice.

text:
    STATE of Louisiana v. Chester Terrell DURR.
    No. 58534.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.
    Henry C. Gahagan, Jr., Gahagan & Gaha-gan, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Chester Terrell Durr was indicted on a charge of second degree murder, a violation of R.S. 14:30.1 for the murder of Sammie A. Mitchell. A jury of twelve found defendant guilty as charged by a vote of ten to two; he was sentenced to imprisonment at hard labor for life, without eligibility for parole, probation or suspension of sentence for a period of twenty years. The defendant assigns three errors for reversal of his conviction and sentence, but has neither briefed nor argued Assignment No. 3, and it is thereby deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

The facts surrounding the commission of this crime are as follows: on September 10, 1976, at approximately 8:30 p. m., Sammie Mitchell, the decedent, was sitting in the driver’s seat of a 1973 Ford pickup truck parked on a secluded dirt road in Sabine Parish near J&M Poultry, a chicken farm. Sitting next to him was Martha Durr (the defendant’s wife), and on the passenger side was Janet Moran (Martha Durr’s sister), with her child in her lap. The defendant and Mrs. Durr had been having marital difficulties and Sammie Mitchell and Mrs. Durr had been seeing each other for three or four months. Shortly after 8:30 p.m., the defendant, Chester Durr, drove up and parked his pickup truck to the right of and behind Mitchell’s truck. Defendant testified that he had gone to the farm where Sammie Mitchell worked to ask Mitchell to stop seeing his wife. The defendant left his truck and approached Mitchell’s truck from the passenger side. After reaching the passenger window, the defendant asked his wife what she was doing there and whether she planned to come home. Mrs. Durr replied that she was talking to Sammie and that she did not plan to come home. At this point, the defendant alleges that Sammie Mitchell simultaneously reached for a rifle which was hanging on a gun rack in the back of the cab, and began opening his door. Defendant then fired a pistol into the truck several times, killing Sammie Mitchell. When the defendant took the stand he admitted shooting Mitchell but claimed that he took this action in self-defense.

Assignment of Error No. 1

After the defendant was found guilty he filed a motion for a new trial. In it he contended that during the course of trial the jury foreman, Mr. James R. Cook, alone, and without the knowledge or authority of the trial judge, went to a Ford dealership and re-enacted the circumstances of the shooting in a new pickup truck of the same make and model as the one in which decedent was shot (although of a different year). The foreman then allegedly discussed his findings with the other members of the jury prior to the rendition of their verdict. Defendant alleges that the actions of the foreman made him a “witness” against the defendant and thereby denied the defendant his right of confrontation (U.S.Const. VI Amend.) and due process of law (U.S.Const. XIV Amend.).

At the hearing on the motion for a new trial, the owner of the automobile dealership testified that Mr. Cook had come to his lot, got into a pickup truck, and tried certain movements while in the truck. However, Mr. Cook, the foreman, was not permitted to testify about the incident. The trial judge subsequently denied the motion for a new trial.

The actions of the trial judge in refusing to permit the foreman to testify and in denying the motion for a new trial were based on R.S. 15:470 which provides:

“No juror, grand or petit, is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.”

This statute forbidding a juror from impeaching his verdict by testimony averring his own misconduct, “relate(s) to the public interest in finality of verdicts and in encouraging freedom and frankness in jury discussion in reaching them.” State v. Ledet, 298 So.2d 761 (La.1974). The rule of law preventing a juror from impeaching the verdict of a jury of which he was a member is firmly established in the jurisprudence of this State. See e. g., State v. Sullivan, 333 So.2d 638 (La.1976); State v. Johanson, 332 So.2d 270 (La.1976); State v. Credeur, 328 So.2d 59 (La.1976); State v. Fortenberry, 307 So.2d 296 (La.1975); State v. Hatch, 305 So.2d 497 (La.1975), and cases cited therein; State v. Ledet, supra; State v. Calloway, 174 La. 134, 140 So. 2 (1932); State v. Guillory, 163 La. 98, 111 So. 612 (1927). In the case before us now, to permit Mr. Cook to testify would be to allow a juror to testify to his own alleged misconduct and to give evidence tending to impeach his verdict, in contravention to the settled law of this State. The trial judge was correct in precluding this testimony and in overruling the motion for a new trial. The evidence adduced at the motion for new trial did not establish jury misconduct.

This assignment lacks merit.

Assignment of Error No. 2

Defendant contends that the trial judge erred in denying his supplemental motion for a new trial which alleged that the general venire was improperly selected. The new trial was sought pursuant to C.Cr.P. 851 which provides in pertinent part:

“The court, on motion of the defendant, shall grant a new trial whenever:
“(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or . . . ”

The “error or defect” that the defendant “discovered” was the decision of this court in State v. Procell, 332 So.2d 814 (La.1976), which was rendered subsequent to the verdict of guilty in this case. In Procell this court held that the system employed for the selection of the general venire in Sabine Parish prevented the general venire from being selected as required by statute and the Louisiana Constitution. As a result of that holding the conviction of the defendant in Procell was reversed.

In Procell, however, the defendant filed a motion to quash prior to trial. No motion to quash was filed in this case. C.Cr.P. 535 provides in pertinent part:

“B. A motion to quash shall be filed at least three judicial days before commencement of trial, and may be filed with permission of the court at any time before commencement of trial, when based on any of the following grounds:
“(1) The time limitation for commencement of trial has expired;
“(2) The general venire or the petit jury venire was improperly drawn, selected, or constituted; or
“(3) A grand jury indictment is invalid because the manner of selection of the general venire, the grand jury venire, or the grand jury was illegal.
“C. A motion to quash based on any grounds, other than those stated in Paragraphs A and B of this article, may be filed of right within ten days after arraignment or before commencement of the trial, whichever is earlier. Such motion may be filed with permission of the court after expiration of the ten-day period, but prior to commencement of trial.
“D. The grounds for a motion to quash under Paragraphs B and C are waived unless a motion to quash is filed in conformity with those provisions." (Emphasis added).

Official Revision Comment (c)(2) to that article provides:

“(2) The general venire or the petit jury venire was improperly drawn, selected, or constituted:
“This objection is waived unless it is urged before trial by a motion to quash the venire. It is not listed as a ground for the motion in arrest of judgment; nor is it, under ordinary circumstances, a proper ground for habeas corpus.”

The correct procedural vehicle for alleging that the general or petit jury ve-nire was improperly drawn, selected or constituted is a motion to quash. By failing to file such a motion, the defendant has waived this objection. C.Cr.P. 535(D); State v. Kibby, 294 So.2d 196 (La.1974); State v. Reese, 250 La. 151, 194 So.2d 729, cert. den., 389 U.S. 996, 88 S.Ct. 485, 19 L.Ed.2d 495 (1967).

Finding no error in the rulings of the trial court, the conviction and sentence of the defendant are affirmed.

TATE, J., dissents and assigns written reasons.

CALOGERO, J., dissents believing assignment # 1 has merit.

DENNIS, J., dissents.

TATE, Justice.

I respectfully dissent. There can be little doubt that, if the jury foreman did what he is alleged to have done, a new trial should be granted.

La.C.Cr.P. art. 762(2) permits a jury to do something similar to what was done by the juror in the instant ease, view the scene of the crime. However, the official comment to that article emphasizes that a court session at the scene is exactly the same as a session in court and the judge, district attorney, defendant and counsel must be present. See Comment (d), Official Revision Comment. The obvious rationale for this requirement is that the jurors are taking evidence when they view the scene of a crime and thus the viewing must be according to the usual constitutional and statutory safeguards.

In a well-known New York decision, People v. De Lucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967), several jurors went to the scene of- an attempted burglary and reenacted the alleged crime without the permission or supervision of the court. The New York high court held that these jurors became unsworn witnesses against the defendants, in direct contravention of an accused’s right under the Sixth Amendment to be confronted with the witnesses against them. In so holding, the court relied on the United States Supreme Court’s decision in Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966), which held that the right of confrontation was denied when a bailiff made out-of-court disparaging remarks about the defendant to the jurors in his charge.

The author of a Comment at 1969 Univ. of Ill. Law Forum 388, 391 notes: “While Parker contains no discussion of the effect of outside evidence considered by a jury, the constitutional argument raised there seems equally applicable to the DeLucia situation. Just as the bailiff became a witness against the defendant and thus violated the defendant’s sixth amendment rights, the jury members, by making an unauthorized visit to the scene of the crime and by relating their observations to fellow jury members, became witnesses whom the defendant had a right to examine. Additional support for the DeLucia decision can be found in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, [20 L.Ed.2d 491] (1968) where the Supreme Court held that the sixth amendment right to an impartial jury is applicable to the state. Obviously the jury is not impartial if the jurors become witnesses against the defendant as a result of their outside investigations. Thus, the constitutional argument in Parker coupled with Duncan would seem to make the DeLucia result correct even if the reliance on Parker was misplaced.”

Other jurisdictions recognize that an unauthorized view by the jury is a ground for reversal, a new trial or a mistrial, but, unlike the New York court, require that prejudice be shown. See Annotation, Unauthorized View of Premises by Juror or Jury in Criminal Case as Ground for Reversal, New Trial or Mistrial, 58 ALR2d 1147 (1958) and Later Case Service.

Although De Lucia and the cases cited in the annotation all deal with an actual view of the scene of the crime, the same rules should apply to a re-enactment of the alleged crime at a place only “simulating” the actual surroundings where the crime is alleged to have occurred. In the latter case, there is an even greater need for confrontation and cross-examination to expose relevant dissimilarities in the two scenes, etc.

In the present case, if the foreman of the jury did what he is alleged to have done, the action was prejudicial. Evidence was acquired without judicial supervision, and evidence which goes to the heart of the accused’s defense.

The question thus becomes whether the trial judge abused his discretion in denying a new trial after hearing the testimony of the automobile dealer. The writer tends to think that the testimony of the dealer alone was sufficient to establish prohibited conduct on the part of the jury foreman, which should require a new trial. However, this is certainly open to question, because the physical acts of the foreman testified to by the automobile dealer could just as well represent conduct unrelated to the case. For this reason, the testimony of the foreman was really crucial to positively establish conduct which denied defendant his constitutional rights. Should the jury foreman have been permitted to testify despite the prohibition of La.R.S. 15:470?

The New York high court in De Lucia, above, faced an identical jurisprudential rule that statements by jurors impeaching their own verdicts are inadmissible. However, the court in that case reasoned that the constitutional rights of the defendant outweigh the policy considerations in favor of the non-impeachment rule where, as in De Lucia and the instant case, “outside influences” come to bear on the jury. I would agree.

I would distinguish State v. Johanson, 332 So.2d 270 (La.1976) and the cases cited therein holding that the policy of La.R.S. 15:470 (incompetency to impeach verdict) prevails over that of La.Code of Crim.Proc. art. 793 forbidding the taking of notes by jurors. Although La.R.S. 15:470 can reasonably be held to override the statutory prohibition of notetaking, it should not be held to prevail over a defendant’s constitutional rights to confrontation of witnesses against him and to an impartial jury, constitutional guarantees of a fair trial.

      . The jurors were not sequestered during the course of the trial.

      . While this prohibition is well settled in Louisiana, in a limited number of cases this court has recognized that a juror may be competent to testify as to certain improprieties. See State v. Kifer, 186 La. 674, 173 So. 169 (1937) (on motion to quash, the testimony of grand jurors that the district attorney and his assistant were present in the grand jury room during deliberations and the voting on the indictment was held admissible); State v. Bischoff, 146 La. 748, 84 So. 41 (1920) (in dicta the court indicated that if a charge of the use of force or violence on the jurors was made which induced a juror to render a verdict to which he did not willingly agree, a juror might be permitted to testify). See also Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). However, the case before us now is not one of these exceptional circumstances.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    Leroy ANDREWS v. SPEARSVILLE TIMBER COMPANY, INC.
    No. 58555.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.

      George M. Strickler, Jr., Kidd, Katz & Strickler, Monroe, for third party defendant-applicant.
    Armand F. Rabun, Rabun & Post, Farm-erville, for defendant-respondent.
   DIXON, Justice.

We granted writs in this case on the application of Willie L. Andrews, a third party defendant in this workmen’s compensation case.

Leroy Andrews was injured in the course of his employment by his father, Willie L. Andrews, in cutting and hauling pulpwood. Willie L. Andrews worked under a contractual arrangement with Spearsville Timber Company, Inc., whose president and principal stockholder was Bill G. Halley. When the injured Leroy Andrews filed suit against Spearsville Timber Company, Inc., that defendant impleaded Willie L. Andrews as a third party defendant, claiming indemnity from Willie Andrews for any sums Spearsville Timber Company, Inc. might be required to pay to Leroy Andrews.

Both the trial court and the Court of Appeal granted judgment in favor of Spearsville Timber Company, Inc. against Willie L. Andrews. 335 So.2d 698 (La. App.2d Cir. 1976).

The relationship of Spearsville Timber Company, Inc. to Willie L. Andrews, under R.S. 23:1061, was that of principal and contractor. Spearsville had contracted with Willie Andrews to cut and haul wood, which was a part of the business of Spears-ville Timber Company, Inc., and even in the absence of contractual obligation, Spears-ville was bound to pay Leroy Andrews, an employee of Willie Andrews, any compensation for which Willie would have been liable to Leroy. See Hart v. Richardson, 272 So.2d 316 (La.1973).

In the event the principal is obligated under the statute, R.S. 23:1061 further provides that the principal is entitled to indemnity from the contractor (the primary employer):

“Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

The words of the statute are clear, and in the absence of other agreements which may control the relationship between the principal and the contractor, the principal is clearly entitled to indemnity from the contractor for compensation benefits which the principal is required to pay under the provisions of R.S. 23:1061. See Jones v. Southern Tupelo Lumber Co., 257 La. 869, 244 So.2d 815 (1971).

However, if the contractual arrangement between the principal and the contractor is one in which the principal assumes an obligation inconsistent with his right to indemnity from the contractor, the statutory right of indemnity is not available to him. For example, in Stevens v. Mitchell, 234 La. 977, 102 So.2d 237 (1958), the principal led the contractor to believe that the principal would obtain workmen’s compensation insurance for the employees of the contractor, and collected from the contractor insurance premiums for that purpose. After the death of one of the contractor’s employees, the principal returned the premiums to the contractor. This court held that there was no right of indemnity in that situation, and cited with approval a similar case, Carpenter v. Madden, 90 So.2d 508 (La.App.2d Cir. 1956).

Bill Halley, the alter ego of Spears-ville Timber Company, Inc., had been in the pulpwood and timber business for many years. He was a pulpwood dealer, buying and selling wood to International Paper Company. He regarded Willie Andrews as a good producer. Willie Andrews owned a truck and tools, and with the aid of other employees, cut and hauled pulpwood. Halley employed Willie to move the timber at a certain price per cord.

Halley’s testimony about the arrangement he had with Willie Andrews is as follows:

“I said, ‘Willie I don’t carry compensation. I said in the past I have handled all claims myself and I said I’ll handle it on that basis.’ ”

Halley testified that he (or his corporation) personally agreed to pay workmen’s compensation claims to Willie and his employees.

Before this agreement with Spearsville Timber Company, Inc., Willie Andrews had worked under an arrangement with Pioneer Wood Company, hauling wood by the cord with Pioneer Wood Company paying the workmen’s compensation insurance. He understood that he and his crew were covered for workmen’s compensation to the same extent as when he was employed by Pioneer Wood Company.

When Leroy Andrews broke his leg in the woods, Halley immediately began to pay him the maximum to which he was entitled under workmen’s compensation, and paid the hospitalization and medical bills. The first payment was on July 3, 1970, in the amount of $49.00; payments continued in that amount through November 16, 1970, when Halley discovered that Leroy, who had not been released by the doctors, was working in the woods. At one time, while still on crutches, Leroy was driving a truck in the woods. On another occasion, Leroy was standing on top of a load of wood on a pulpwood truck, “topping it out.” From November 23, 1970 through March 13, 1971 Halley paid Leroy $24.50 a week.

Mr. Halley was distressed that Leroy had prematurely returned to work, testifying that any work in the woods, even standing around a pulpwood operation, is fraught with danger. To emphasize his desire that Leroy not return to work prematurely, Halley reduced the weekly compensation payments by one-half.

When asked why he had undertaken to pay Leroy Andrews compensation at the time of his injury, Halley testified:

“Why did I pay it? I’ll tell you the reason I paid the compensation. I am real conscious of my business and I protect it any way that I can and I knew that if I didn’t pay this, Willie was going to quit working for me, because I had entered a verbal agreement with him. So to keep relationships as well as possible I set forth to pay it. This was my reason for paying it.”

Halley further testified that he knew Willie Andrews understood that Halley was to pay workmen’s compensation payments.

In the course of Leroy’s disability, according to Halley, he received some checks from an insurance company. These checks were payments under a policy issued to the Andrews family, one which was completely unrelated to the association with Halley. Halley did not know why the checks had been sent to him by the insurance company. He turned them over to a member of the Andrews family, and never indicated that he thought he was entitled to reimbursement for compensation claims paid under this arrangement with Willie Andrews.

The contractual arrangement between Spearsville Timber Company, Inc. and Willie Andrews was clear. There was no misunderstanding by either party. Both understood that, as part of the arrangement, Willie Andrews not only would be paid according to the agreement, but that Halley would be responsible for all workmen’s compensation claims. Leroy Andrews was paid, not merely because of the provisions of the workmen’s compensation act. He was paid workmen’s compensation by Spearsville Timber Company, Inc. because Halley had agreed with his employer to pay the workmen’s compensation. The agreement clearly did not contemplate that Spearsville Timber Company, Inc. would be indemnified for compensation payments.

When the principal and the contractor agree that the burden of workmen’s compensation payments is to be borne by the principal, it is implicit that the principal is not entitled to indemnity from the contractor under R.S. 23:1061.

The judgment of the Court of Appeal is reversed, and there is now judgment in favor of Willie L. Andrews and against Spearsville Timber Company, Inc. rejecting the third party demands of Spearsville Timber Company, Inc. against Willie L. Andrews, at the cost of Spearsville Timber Company, Inc.

DENNIS, J., dissents for the reasons assigned by the Court of Appeal.


author: PER CURIAM. DIXON, Justice

text:
    STATE of Louisiana v. Robert McMORRIS.
    No. 58600.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.

      Ford E. Stinson, Benton, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-appel-lee.
   PER CURIAM.

Defendant, Robert McMorris was charged by bill of information with attempted armed robbery, La.R.S. 14:27, 14:64, convicted, and sentenced to serve twelve years at hard labor. On appeal, he urges twenty-six assignments of error, none of which require reversal. We affirm.

On the night of January 29, 1975, Detective Ricky Speir, an undercover narcotics agent for the Bossier City police force, arranged to purchase a bag of marijuana from defendant, intending to arrest him for the sale. Defendant got into the back seat of the unmarked patrol car and instructed Speir to drive to an unlit portion of the street where their activities could not be seen. When Speir had parked the car, defendant reached into his shirt and, pointing an undisclosed object at the officer, announced, “This is a rip-off, give me all your money or I’m going to blow you away.” Speir handed defendant his wallet, but while defendant was occupied with searching its contents, Speir dove from the car, drew his revolver and placed defendant under arrest. Defendant hastily confessed that he was armed not with a pistol but with a half-pint liquor bottle which he produced from beneath his clothing. Two other police officers, who had been stationed nearby to observe the drug transaction, drove up immediately and assisted in the arrest. '

At trial, defendant testified that he was a police informant, that the police wrongly suspected him of concealing a large sum of money which had disappeared in a case he had worked on, and that they had fabricated the charge against him in an effort to compel him to disclose the whereabouts of the money.

ASSIGNMENTS OF ERROR NOS. 1 AND 4

Prior to the opening statements, the State was permitted, over defense counsel’s objection, to amend the bill of information. It had previously charged that “Robert Earl McMorris . . . on or about the 29th day of January . . . 1975 while armed with a dangerous weapon, namely a gun, did attempt to rob Detective Rick Speir.” With the court’s permission, the word “gun” was deleted and replaced with “bottle.” Defense counsel protests that the defect in the unamended indictment was one of substance which could only be corrected before the trial began and that the tardy amendment prejudiced his ability to defend against the charge.

The Louisiana Code of Criminal Procedure provides with respect to amendments in an indictment:

“Art. 487.
“A. An indictment that charges an offense in accordance with the proyisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
“Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.
II * * *
“Art. 489.
“If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. if! *

The particular type of weapon used in an armed robbery is not a necessary averment in the bill of information, La.C. Cr.P. art. 465, and the defect here was not one of substance. See, State v. Green, 160 La. 79, 106 So. 701 (1926). Hence the amendment could be made at any time with leave of court. La.C.Cr.P. art. 487; State v. Sharp, 321 So.2d 331 (La.1975). Defendant has alleged, but has not shown that his defense was prejudiced by the change. His assertion that police had falsely invented the charges against him could not be affected by an amendment of the type of weapon claimed to have been used in the robbery. Moreover, defendant was present at a preliminary hearing held several months prior to trial, where the testimony adduced revealed that a bottle, rather than a gun, was involved in the crime. Under these circumstances, defendant was not entitled to a continuance at the time the amendment was made. State v. Brown, 338 So.2d 686 (La.1976). The assignment is unmeritorious for the further reason that defendant failed to move for a continuance after amendment of the information.

ASSIGNMENTS OF ERROR NOS. 2, 5 AND 6

Defendant complains that he was seriously prejudiced when the prosecutor twice mistakenly alluded to the crime charged as an armed robbery without qualifying that it was an “attempt.”

The first such error occurred in a discussion between counsel and the court, during which the jury had been removed from the courtroom and clearly could not be influenced by the prosecutor’s remark.

Next, in the assistant district attorney’s opening statement, he advised the jury that defendant was “charged with robbing Detective Ricky Speir . . .” Upon defense counsel’s objection and the court’s rebuke, the assistant district attorney admitted that he was in error and that defendant was merely charged with an attempt. Defense counsel’s motion for a mistrial was properly overruled; the error was rectified by the prosecutor’s retraction and correction of his prior misstatement.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment, defendant argues that he was not given timely notice of the State’s intention to introduce an incul-patory statement. The record reflects that defense counsel was served with notice pri- or to the State’s opening argument to the jury, as required by La.C.Cr.P. art. 768. State v. Hatter, 338 So.2d 100 (La.1976).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends that the State made a prejudicial reference to defendant’s race in violation of La.C.Cr.P. art. 770.

On direct examination Detective Speir was asked whether he could identify his assailant in the courtroom. The witness pointed to defendant whereupon defense counsel commented, “I’d like for the record to show that there is no other black person in the courtroom.” This observation, repeated on several occasions by defense counsel in an apparent attempt to lessen the effectiveness of the in-court identifications, was neither disparaging, objectionable, nor objected to by defense counsel. The State did not join in defense counsel’s remarks, and defendant may not complain on appeal of the actions of his trial counsel. Cf. State v. Marcell, 320 So.2d 195 (La. 1975). Additionally, references to race which do not appeal to prejudice are permissible in the context of identification testimony. State v. Jenkins, 340 So.2d 157, 178 (La.1976).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 8 AND 10

Defendant argues that the court erred in admitting into evidence the bottle with which defendant was armed during the perpetration of the robbery and which was recovered at the scene of the crime.

If the custodial evidence establishes that an object is more likely than not connected with the case, it is properly admitted. State v. Dotson, 260 La. 471, 256 So.2d 594, 608-609 (1972). Detective Speir testified that defendant placed the bottle on the seat of the patrol car after his arrest, that he (Speir) retrieved the bottle, kept it in his possession overnight, and turned it over to Sergeant Bridges, an identification officer, on the following morning. Bridges stated that after he received the bottle from Speir, he tested it for fingerprints, finding one of defendant’s prints on it, and placed it in an envelope inside a locked drawer where it remained until the morning of trial when he delivered it to the district attorney’s office. Thus, the bottle was sufficiently identified by chain of custody to be admitted at trial. The fact that Speir could not make a positive visual identification of the bottle goes to the weight of the evidence, rather than to its admissibility. State v. Dotson, supra.

ASSIGNMENT OF ERROR NO. 9

On cross-examination, defense counsel asked Detective Speir whether he considered a bottle a dangerous weapon. Speir responded, “Not whenever I can see it, no sir I don’t, but whenever I can’t, I don’t know.” On redirect examination, the State inquired of Speir why he did not consider a bottle a dangerous weapon. Defense counsel’s objection to the question was overruled and Speir repeated his testimony that had he known defendant’s weapon was a bottle, he would not have been frightened by it. Defense counsel objected on the grounds of relevancy when Speir went on to testify under what circumstances even a visible bottle might be dangerous, for instance, if it were used as a club.

Once the defense had requested Speir’s opinion as to the dangerousness of a bottle, the State was authorized on redirect examination to pursue this line of inquiry. Further, the witness’ testimony that a bottle might be used to strike as well as to deceive was relevant to the jury’s consideration of the dangerous nature of the weapon. In considering the dangerousness of an instrument wielded in the perpetration of a robbery, this court has considered as a factor “the continuous threat and capability . that it will be used as a bludgeon.” State v. Levi, 259 La. 591, 250 So.2d 751, 754 (1971) (involving an unloaded and unworkable pistol). See also, State v. Leak, 306 So.2d 737 (La.1975) (involving an extension to a ratchet coupled with a socket, disguised as a pistol).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 11

After being qualified as an expert witness in fingerprint identification, Sergeant Bridges stated that he had found the imprint of defendant’s left middle finger on the bottle which the State sought to establish as the robbery weapon. The prosecutor asked, “. . . the fact that you only found a left middle fingerprint on this bottle, does that mean that this particular individual has never handled this bottle with his right hand?” Defense counsel objected that this was a leading question and claims that the court erred in overruling his objection. Because the question admits to a yes or no response, and does not suggest which answer is correct, it is not leading. La.R.S. 15:277. However, defendant further urges on appeal that the witness was not qualified to answer it. As noted above, the witness had been accepted as an expert in fingerprint identification, and it was within the realm of his expertise to state that someone might handle an object without leaving an identifiable print.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 12

The State introduced into evidence, without protest by defense counsel, the fingerprint cards from which Sergeant Bridges had made his identification of defendant’s prints raised from the bottle. However, defense counsel claimed this evidence could not be exhibited to the jury unless it was also provided with a magnifying glass to make its examination of the prints meaningful. The court refused this request and defendant cites his ruling as error.

The State aptly argued that the jurors were not being required to make an identification of the fingerprints, which they would not be qualified to make as experts even with a magnifying glass; the State simply wished the jury to view the exhibits. The court properly ruled that for this limited purpose, no magnifying glass was needed.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 13, 15, 16, 17, 18 AND 19

Defendant asserted that prior to his arrest he had been a police informant and had worked for and with several of the State’s police witnesses, which each of them categorically denied. To corroborate his testimony defendant attempted to subpoena the Bossier City Police Department’s entire list of confidential narcotics informants, which he claimed would include his name, and to otherwise discover the names of confidential informants. After hearing testimony by the Chief of Police that the information sought could destroy the effectiveness of the city’s undercover agents and additionally endanger their lives, the court refused to compel disclosure of the informants’ identities.

We have stated in the past that a confidential informant’s identity will be revealed only when the defendant shows exceptional circumstances justifying the disclosure, and much discretion is vested in the trial court in determining whether a defendant has carried his burden of proof. State v. Russell, 334 So.2d 398, 401 (La.1976). Defendant here sought the identity not only of individual informants but also of Bossier City’s entire arsenal of undercover agents, a drastic request which the trial judge would not grant to satisfy what he termed defendant’s “vivid imagination.” We find no abuse of discretion in the court’s ruling.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 14

When the assistant district attorney attempted to elicit the Bossier City Police Chief’s objections to the disclosure of the list of confidential informants, defense counsel vainly objected that the prosecutor was also the witness’ attorney and therefore could not pose leading questions to him. The question was not leading, it was a proper inquiry by the district attorney acting as district attorney, and any other relationship between witness and prosecutor was irrelevant to this examination.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 20

Defendant argues that the court improperly recalled a State witness to clarify his prior testimony instead of consulting the record of his previous statements; the witness, defense counsel claims, was thereby permitted to alter his testimony. Defense counsel did not object to the recall of the witness, and therefore the issue is not properly presented for this court’s review. La.C.Cr.P. art. 841.

Additionally we note that the witness was recalled for the trial court’s benefit in making a ruling out of the presence of the jury. His testimony on recall was substantially identical to his prior testimony, as defense counsel appeared to acknowledge at the time.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 21

Defense counsel urges that the trial court erred in admitting hearsay evidence into the record.

The testimony complained of is a witness’ recital of statements which he himself made. to another. The witness was testifying as to facts within his knowledge, and not as to facts related to him. His testimony was not hearsay. La.R.S. 15:463.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 22

Defendant testified at trial that some time prior to his arrest he was riding in Detective Speir’s patrol car (not an uncommon practice, according to defendant) when they became involved in the hot pursuit of two narcotics suspects, that one of the men being followed threw a suitcase out of the window of his car and Speir let defendant out to retrieve it while he continued the chase, and that when defendant opened the suitcase he found a large quantity of cash, which he buried in the Moss Tie Yard. He suggested that it was the police’s interest in recovering the money which prompted them to invent the armed robbery charges for which he was being tried. He stated that after had had been imprisoned he contacted Deputy Allen of the Bossier Parish Sheriff’s Office and offered to show him where the money had been buried, but that when they went to search for it, it was inexplicably missing.

On rebuttal, the State called Deputy Cook, who had participated in the conversation between defendant and Deputy Allen regarding the buried money. However, when Cook attempted to relate the content of the conversation with defendant, substantially corroborating defendant’s account of the same event, defense counsel objected that Cook could not repeat defendant’s statements unless it was first established that defendant had been advised of his rights before making them. Had Cook’s account of defendant’s statements been at variance with or otherwise incriminating than defendant’s own testimony, perhaps this assignment would have merit. However, since it merely corroborated defendant’s testimony, the judge’s error, if any, in failing to ascertain the voluntariness of defendant’s statements to Cook, was harmless.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 28

Deputy Cook testified that defendant had been advised of his rights before they embarked on the search of the tie yard for the money. Defense counsel objected to the witness’ testifying as to statements made by defendant on the return trip from the tie yard unless it could be shown that defendant had again been advised of his rights. In view of the short period of time which had elapsed since defendant had received his warnings, no repetition of them was required here, and the trial court properly overruled the objection.

ASSIGNMENT OF ERROR NO. 24

Defense counsel objected, and was overruled, when a State witness testified on rebuttal that defendant had been booked under an assumed name, a subject which defense counsel asserted was beyond the scope of proper rebuttal since the defense had not put the matter in issue. The State pointed out that this evidence was being offered in rebuttal of defendant’s testimony that his arresting officers were well acquainted with him.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 25

During the cross-examination of a police officer relative to his refusal to disclose the names of confidential informants, defense counsel learned that the officer had revealed his informants’ identities in the past in cases where they were arrested and he was called upon to testify against them. Counsel then questioned the witness at length whether his disclosure of the informants’ identities prior to their convictions indicated a belief that the men were guilty because of the fact of their arrests. The prosecutor objected that this line of inquiry was irrelevant and the court sustained the objection. The trial judge is vested with broad discretion in determining the relevancy of evidence, La.R.S. 15:435, 15:441; State v. Nero, 319 So.2d 303 (La. 1975), and we find no abuse of that discretion here.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 26

Defendant complains of an alleged misstatement of fact in the State’s closing argument, but our review of the testimony reveals the statement was entirely accurate.

This assignment is without merit.

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

DIXON, J., concurs with reasons.

DIXON, Justice

(concurring).

I respectfully concur, but cannot agree with the majority’s treatment of Assignment of Error No. 9. R.S. 14:2(3) defines “dangerous weapon” as follows:

“(3) ‘Dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” (Emphasis added).

In addition, the interpretation of the articles in the Criminal Code are governed by R.S. 14:3 which provides:

“The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

Therefore, in assessing whether or not the bottle used here was a “dangerous weapon,” (in order to support the verdict of guilty of attempted armed robbery-, R.S. 14:27, 14:34) we must determine whether the bottle, “in the manner used, was calculated or likely to produce death or great bodily harm.” R.S. 14:2(3). A review of the record reveals that the State offered no evidence whatsoever that the bottle in this ease was calculated or likely to produce great bodily harm.

The bottle was kept in the defendant’s pocket, presumably to give the appearance that he was concealing a gun, but no evidence was offered to show that the bottle was used or intended to be used to do anything else but create that illusion. In State v. Elam, 312 So.2d 318 (La.1975), although this court did find that there was “some evidence” that the defendant was armed with a dangerous weapon (although no weapon was in fact found), the court made the following observation:

“This holding does not make any extension of Levi (State v. Levi, 259 La. 591, 250 So.2d 751 (1971)) nor do we hold that a ‘hand in a pocket’ is a dangerous weapon.” 312 So.2d at 322.

The fact that the bottle was concealed in the defendant’s pocket, as here, presents the same situation as the “hand in the pocket” unless other evidence is presented that the bottle was a dangerous weapon.

However, in the procedural posture of this case, the defendant is not entitled to a new trial. During examination of the victim, Detective Speir, defense counsel objected when the prosecutor attempted to have the witness testify as to whether he had ever seen anyone in a barroom or other establishment injured by a bottle. Defense counsel’s objection was that the question was overly broad as the type of bottle, persons involved and the situation were not adequately described. The defendant also included the following paragraph in his motion for a new trial:

“Commencing on Page 54, the witness was questioned as to whether or not they had ever seen anyone in a bar hurt with a bottle and it was not limited to the type of bottle that was involved in this suit and it was objected to by the defense and such was prejudicial and should not have been allowed.”

The State was entitled to attempt to present evidence tending to show that the bottle in use here was a dangerous weapon. When no such showing was made, the proper procedure would have been for the defendant to base his motion for a new trial on the ground that there was no evidence at all of some essential element of the crime. C.Cr.P. 851, 858; see e. g., State v. Brown, 337 So.2d 484 (La.1976); State v. Butler, 331 So.2d 425 (La.1976); State v. Williams, 310 So.2d 513 (La.1975). the allegation that there was no evidence at all of an essential element of the crime presents a question of law which is reviewable by this court. C.Cr.P. 858. In the case before us the defendant made no such allegation in his motion for a new trial. Therefore, the question of whether or not there was a total lack of evidence of an essential element of the crime is not before us on appeal.

Accordingly, I concur in the affirmance of the defendant’s conviction and sentence.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. David Joseph SYLVESTER.
    No. 58640.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.

      Robert Glass, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Timothy W. Cerniglia, Asst. Dist. Atty., for plaintiff-relator.
   CALOGERO, Justice.

We granted writs in this case upon application of the state to review a pre-trial ruling of the district judge disallowing for use at trial the prior recorded testimony of a now-deceased witness given at a hearing held on the state’s Prieur motion.

Defendant David Sylvester was indicted in May of 1975 for the crime of possessing heroin with intent to distribute on April 17, 1975. The state filed notice of intent to introduce evidence of similar acts of the defendant which had purportedly taken place on April 7 and 8 of 1975 so as to prove knowledge and intent pursuant to R.S. 15:445 and 446 and State v. Prieur, 277 So.2d 126 (La.1973). At the hearing on the Prieur motion, several persons took the stand including Paulette Royal who testified as to defendant’s activities under oath and was cross-examined at length by defense counsel. Thereafter the trial court granted the state’s motion and ruled that evidence of defendant’s activities on April 7-8 were admissible at his trial in order to prove knowledge and intent. However, two days prior to trial Ms. Royal died. The trial was continued and the state filed a motion requesting permission to introduce Royal’s Prieur testimony, in transcript form, at defendant’s trial on the merits. The trial judge denied the state’s motion to use the transcript, but reaffirmed the fact that the state could attempt to establish knowledge and intent through proof of defendant’s activities on April 7-8. We granted the state’s application to review the judge’s ruling disallowing use by the state of the deceased witness’ testimony recorded at the Prieur hearing.

The state contends that statutory and jurisprudential authority exists to support the admission of prior recorded testimony. They cite Article 295 of the Code of Criminal Procedure which allows the admission under certain circumstances of a witness’ testimony recorded at a preliminary hearing, and they rely on our decisions in State v. Pearson, 336 So.2d 833 (La.1976), State v. Ghoram, 328 So.2d 91 (La.1976), and State v. Kaufman, 304 So.2d 300 (La.1974) which allow the introduction in certain circumstances at defendant’s second trial of the testimony recorded at his first trial.

Defendant Sylvester contends first that the judge’s decision to disallow the introduction of the transcript was a discretionary one, as are, he contends, all decisions relating to the introduction of Prieur evidence, and that this decision cannot be upset by this Court in the absence of abuse of discretion. Secondly, defendant argues that, as a matter of law, testimony transcribed at a Prieur hearing is not admissible because its introduction has never been previously allowed in this state by statute or jurisprudential ruling and because under our decision in State v. Augustine, 252 La. 983, 215 So.2d 634 (1968) and the dissenting opinion in State v. Dickerson, 282 So.2d 456 (La.1973) a transcript is inadmissible in this situation.

When the state wishes to introduce the recorded testimony of a witness at a prior hearing, there must be an examination into whether the constitutional safeguards, particularly the right of confrontation, embodied in the federal and state constitution are violated. U.S.Const. Amend. VI; La.Const, art. I, § 16 (1974). As we have stated in State v. Pearson, supra, at 835 “One reason that this right is so fundamental to our law is that it guarantees that the witnesses who participate in the deprivation of a person’s freedom present themselves in person before the jury so that the jurors can observe their demeanor and de-cide whether they should be believed.” This face-to-face viewing of witnesses is no less critical when the witness is to testify to other acts of the accused pursuant to R.S. 15:445 and 446 than when the witness is to testify as to the accused’s guilt of the crime charged. Before an accused can be deprived of his freedom by means of recorded, not live, testimony, the federal and state constitutions require that certain standards be satisfied. In addition to other standards not at issue here, the testimony of a witness from a previous judicial proceeding against the same defendant in the same case can only be admitted in transcript form when there is an identity of issues between the former proceeding and the trial on the merits. State v. Augustine, supra. As stated in McCormick in his Law of Evidence:

“It is often said that the issue in the two suits must be the same. But certainly the policy mentioned does not require that all the issues ... in the two proceedings must be the same, but at most that the issue on which the testimony was offered in the first suit must be the same as the issue upon which it is offered in the second. Additional issues or differences in regard to issues upon which the former testimony is not offered are of no consequence. Moreover, insistence upon precise identity of issues, which might have some appropriateness if the question were one of res judicata or estoppel by judgment, are out of place with respect to former testimony where the question is not of binding anyone, but merely of the salvaging, for what it may be worth, of the testimony of a witness not now available in person. Accordingly, modern opinions qualify the requirement by demanding only ‘substantial’ identity of issues.” [footnotes omitted] McCormick, Law of Evidence, § 257 (1972).

The issue in' a former and subsequent trial of the same defendant for the same charge will always be identical: was defendant guilty of the crime charged? The issue in a preliminary hearing and a later trial are likewise identical; only the standard of proof the state must meet varies. We must now decide if the issue at a Prieur hearing and a subsequent trial are sufficiently the same so as to allow the state to introduce the testimony of its witness in transcript form.

The issue at the Prieur hearing was whether the state has established to the satisfaction of the trial judge that the evidence of defendant’s “other conduct” is admissible at trial on the merits to show defendant’s knowledge and intent. The evidence at the hearing focused on the witness’ knowledge of defendant’s “other conduct” and their similarity to the defendant’s act on April 17th, as well as her own credibility and possible bias. At trial on the merits, evidence of the events on April 7-8 would likewise be introduced by the state to prove knowledge and intent and the defendant’s interest would be in attacking the witness’ ability to recall the facts of April 7-8, her general credibility and her possible bias. We find, therefore, the issues explored at the Prieur hearing so substantially identical to those for which the evidence will be used at trial on the merits that introduction of the evidence by means of a transcript rather than by live testimony does not violate the confrontation clauses of the federal or state constitutions.

We find distinguishable the case of State v. Augustine, supra. In that ease, defendant was charged with a November 1962 murder. A psychiatrist examined defendant in March of 1963, and testified at a lunacy commission hearing convened for the purpose of determining defendant’s present sanity. Although the psychiatrist was unavailable at the trial, his testimony was introduced. On appeal, this Court reversed and held that the recorded testimony was not admissible because the psychiatrist’s testimony related to present sanity (in March of 1963) and the issue at the trial, raised by defendant’s plea of not guilty by reason of insanity, was insanity at the time of the offense (in November of 1962). We said there that:

“evidence taken in a preliminary proceeding upon a limited issue different or foreign to the one presented on the trial of the case cannot be admitted at the trial because its admission would infringe upon the defendant’s constitutional right to confront the witness.” State v. Augustine, supra, at 639.

Unlike the disparate inquiries relative to psychiatric conditions on different dates and for different purposes, the inquiry at a Prieur hearing and later at trial relate in each instance to defendant’s guilt or innocence of the prior crime and the similarity of the modus operandi involved.

Defense counsel submits that he will be prejudiced by the transcript’s use because it contains irrelevant legal arguments and prejudicial material, i. e., areas he explored in cross-examination of the witness at the pre-trial hearing before the judge which he would not have pursued had he been questioning the witness before the jury as well as legal argument between court and counsel. We feel confident that the trial judge in conjunction with the attorneys in the case will be able to cleanse the transcript so as to present to the jury only those sections of the transcript necessary to present the witness’ knowledge of the events in question without extraneous prejudice.

Defendant’s initial argument in this Court is that, irrespective of the admissibility per se of the Prieur motion transcript at trial, we should conclude that the trial judge’s ruling excluding the transcript was simply by virtue of the exercise of that wide discretion which is his in the Prieur area. In effect he says that since the trial judge could exclude evidence relative to another crime because its prejudicial effect outweighs its probative value, then he surely can, having determined the other .crime evidence permissible, exclude a particular kind of evidence, such as a cold transcript, as unduly prejudicial because of the character of that evidence. He argues that the judge in effect so held, or could be construed to have so held, and that we should not interfere with the exercise of that discretion. The argument is not groundless. It is premised, however, upon an assumption that the ruling excluding the transcript was an exercise by the trial judge of his Prieur discretion. We disagree with that premise. In ruling the judge said, “to bring the issue squarely before the Supreme Court I will permit system and intent to be used.” Thereafter, he ruled that the transcript for use at trial was impermissible. We conclude that the judge’s ruling excluding the transcribed testimony was prompted by considerations unrelated to the Prieur discretion afforded him, and that exclusion was required for the reason that there existed no statutory or jurisprudential authority for its admission. Thus we conclude that defendant’s outset argument is without merit.

Accordingly for these reasons we reverse the ruling of the trial judge and remand the case for further proceedings not inconsistent with this opinion.

      . The hearing on the motion was held before Judge Jerome Winsberg.

      . A second judge, Honorable Charles A. Ward, heard this motion. He adopted the former ruling of Judge Winsberg as to the Prieur motion, but further ruled that the transcript of Royal’s testimony could not be introduced.

      . The defendant made no application to us questioning the validity of the judge’s ruling that evidence (other than the transcript) of similar acts on April 7-8 was admissible at the defendant’s trial. That issue, therefore, is not before us.

      .Article 295 of the Code of Criminal Procedure provides in full that:
      “The transcript of the testimony of a defendant who testified at the preliminary examination is admissible against him upon the trial of the case or, if relevant, in any subsequent judicial proceeding.
      “The transcript of the testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceeding in the case, on behalf of either party, if the court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found, and that the absence of the witness was not procured by the party offering the testimony.
      “The transcript of testimony given by a person at a preliminary examination may be used by any party in a subsequent judicial proceeding for the purpose of impeaching or contradicting the testimony of such person as a witness.”

      . In the case of State v. Kaufman, supra, we set down the following test for the use of prior recorded testimony: the defendant must have been represented by counsel at the earlier hearing; the witness must have testified under oath; the witness must have been cross-examined, or the accused must have waived the right to cross-examination; and the witness must be unavailable to testify at trial on the merits. When we apply these prerequisites to the situation before us, we find that each has been satisfied: defendant Sylvester was represented by counsel at the Prieur hearing; witness Royal there testified under oath and was vigorously cross-examined; and the witness is now dead and therefore certainly unavailable.


text:
    STATE of Louisiana v. George TEMPLE.
    No. 58678.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.
    Louis A. Heyd, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John J. Mamoul-ides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gretna, for plaintiff-appellee.
   CALOGERO, Justice.

Defendant George Temple was charged by bill of information with possession with intent to distribute a controlled dangerous substance, to-wit: marijuana, in violation of La.R.S. 40:966(A). After electing to waive trial by jury, defendant was tried, found guilty as charged and sentenced to serve four years at hard labor. On appeal he relies on two assignments of error for reversal of his conviction and sentence.

Prior to trial defendant filed a motion to suppress certain physical evidence consisting of forty pounds of marijuana on the ground that the evidence was seized incident to an unlawful search in violation of his rights under both the United States and Louisiana Constitutions. After a hearing, the trial court denied the motion. Defendant’s objection to this ruling forms the basis of his assignment of error number one. At trial defendant objected to the introduction of the evidence seized incident to the search on the same ground previously urged at the motion to suppress. The trial court overruled this objection and defendant now assigns that ruling as error number two. Because the merit of these assignments depends upon the constitutionality of the search, they will be treated together.

The pertinent facts, developed at the motion to suppress, are as follows:

Officer Arthur Steckler of the Jefferson Parish Sheriff’s Office testified that at approximately 2:00 a. m. on November 29, 1974 he received a call from Tom Clayton, a Dallas policeman, advising him that a shipment of about fifty pounds of marijuana would be brought shortly into New Orleans by a black male named George Temple on Delta flight 880. He further told Officer Steckler that the marijuana would be concealed in a suitcase and gave the dimensions and description of a plaid suitcase as well as its claim ticket number. Officer Steckler, accompanied by Officers Emmet Higginbot-ham, Charles Machauer and Allen Drumm proceeded to the New Orleans International Airport and set up a surveillance of the baggage claim area, the passenger exit and the ramp used to unload luggage from Delta flight 880. When the flight arrived, Officer Machauer watched for and located the suitcase bearing the claim number given by the Dallas police and fitting the descriptions supplied. It was transported by conveyor belt to the claim area where the officers observed a black male pick up the suitcase and present his claim check for it. The four officers then approached the defendant, identified themselves as policemen and asked defendant to accompany them to the airport police room, which he did. All four officers testified that defendant was there advised of his Miranda rights and asked if he would mind if they looked in his suitcase. Each of the officers testified that defendant was cooperative and voluntarily unzipped the suitcase. Moreover, each' affirmatively stated that defendant was not threatened in any way during the entire transaction.

Defendant testified that he was advised he was under arrest as soon as he picked up his suitcase and before he was brought to the airport “police room.” He claimed that he could not remember whether he or the officers opened the suitcase but admitted that he had not protested this action. Defendant made no claim that he was threatened. At best he said that he was “crowded” by the officers and that he went along with everything to find out what was going on.

It is well settled that a valid search or seizure may be made without a warrant where the accused consents to a search or seizure. Schneckloth. v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Bartley, 329 So.2d 431 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975). Defendant argues in brief that his consent (although he denies giving it) was not free and voluntary because he was not informed of his right to refuse to consent and because he was intimidated by the police. He claims that it is incredible to believe that defendant freely consented to the search when he knew he was carrying an illegal substance.

In Schneckloth v. Bustamonte, supra, the United States Supreme Court held that warning the suspect of his right not to consent to a search is not required; lack of such warning is only one factor in determining the voluntary nature of consent. The question of whether consent to a search was voluntary or was the result of duress or coercion is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, supra; State v. Bartley, supra; State v. O’Conner, 320 So.2d 188 (La.1975). We have held that the factual determination of the trial judge on this issue is entitled to great weight inasmuch as it involves the credibility of witnesses he has had the opportunity to hear and observe. State v. Bartley, supra. The record in the instant case fully supports the trial judge’s finding that the defendant consented to the opening and search of his suitcase. Accordingly the evidence seized was not the product of an unconstitutional search; the trial judge did not err in overruling defendant’s pre-trial motion to suppress the evidence and his objection to its introduction at trial.

For the reasons stated above, we find the assignments without merit. Accordingly we affirm the conviction and sentence of defendant George Temple.

      . The fourth amendment to the United States Constitution provides:
      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      The right to privacy embodied in this amendment was declared enforceable against the states via the due process clause of the fourteenth amendment to the United States Constitution in the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
      Article I, section 5 of the Louisiana Constitution of 1974 provides:
      “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”