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

text:
    STATE of Louisiana v. Lawrence T. WATTS.
    No. 56229.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      Garland R. Rolling, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Edward M. Leonard, Jr., Walter J. Senette, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

On June 6, 1974 defendant was indicted by a grand jury for an aggravated rape, in violation of La.R.S. 14:42, which purportedly occurred on January 16, 1974 in Morgan City. Trial was held on July 8 and 9, 1974 and defendant was found guilty by a twelve man jury. In accord with the provisions of La.R.S. 14:42, defendant was then sentenced to the penalty of death.

Defendant has appealed to this Court, relying on four assignments of error in seeking to have his conviction and sentence reversed. In addition, he contends that selection of the jury was done in a manlier violative of the constitutional principles expressed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and he asks us to consider this alleged error of constitutional magnitude, despite the failure of trial counsel to object during examination and selection of the jury.

FACTS

The victim, a 19 year old girl who was in Morgan City on vacation visiting friends, was alone, asleep in a girl friend’s apartment when she was awakened at approximately 10:30 a.m. by the shaking of her bed. A male voice ordered her to shut up, and the intruder placed a butcher knife to her throat, telling her that he would kill her if she did not submit. He then proceeded to rape her twice.

The victim had been ordered to keep her eyes closed, but after the rape was completed, the intruder allowed her to open her eyes and they had a conversation lasting about five minutes. During this time, the victim obtained a good look at the intruder.

The conversation was terminated when one of the victim’s friends, a resident of the apartment in which the rape occurred, returned home for lunch. The intrüder hid in a closet. The victim went downstairs, admitted her friend, went back upstairs to the bedroom, changed from her night gown to her clothing, and then fled the apartment with her friend. The police were called, but the rapist had escaped by the time the police arrived at the apartment. A broken window screen in a vacant downstairs apartment suggested the means of entry to the dwelling. A note, reading “Meet me tonight out in front of the house at eight” was found on the victim’s bed.

During the afternoon, various police officers remained in the apartment investigating the rape. A female police officer was summoned to the apartment after one of the male officers answered a telephone call only to hear the caller hang up without speaking. It was decided that this patrolwoman would answer the telephone thereafter and would impersonate the victim in the hope that the caller might be the rapist. She took a call from a person who identified himself as “Roy” and related that he was a friend of “John Smith,” the man who had been there that morning. Roy apologized for Smith’s behavior, saying that Smith’s mind was messed up and that he really was not the way he appeared to be that morning. About two hours later, the patrolwoman answered another call and recognized the voice as that of the same Roy. This time the caller identified himself as John Smith. He again apologized for what had happened that morning and attempted to arrange a meeting for that night so that he could return $50.00 which he had taken from the apartment. A meeting place was not immediately agreed upon, so the patrolwoman asked him to call again later. A third call was received about 7:30 p.m. and it was then agreed that the meeting would be at 8:00 p.m. at a small convenience store about a block from the apartment.

The victim agreed to cooperate in an attempt at the store to apprehend the rapist. While the police were stationed inside the store, she stood in front waiting for the rapist to approach. She remained there for about thirty minutes, during which time she viewed between fifteen and twenty black males, including approximately six men who matched the general description of defendant, enter the store. When the defendant approached her, she dropped her purse, which was the pre-arranged signal between her and the police. The victim, however, had moved out of the range of vision of the police and she realized that they had probably not seen the signal. After a brief conversation in which defendant suggested they leave in his car, she told defendant she needed to go into the store to buy cigarettes. Once in the store she informed the police that the rapist was standing outside by a telephone booth.

The defendant was then arrested by the police for rape and was informed that he had been identified. He responded by stating “Well, let her tell me that.” Thereupon, the victim was summoned over to the defendant by the officer, and she reaffirmed her identification.

After defendant’s arrest, search warrants were obtained for his mother’s home, in which he resided, and for his mother’s automobile, which he had driven to the store. Incriminating physical evidence was found at the home and in the automobile.

ASSIGNMENT OF ERROR NO. 1.

Prior to trial, defendant filed a motion to suppress the identification, contending that “a one-on-one” identification procedure was used and that such a procedure was impermissibly suggestive and conducive to mistaken' identification contrary to due process standards enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). After a pretrial hearing, the trial court denied the motion to suppress, whereupon defendant objected to the ruling of the court and reserved a bill of exceptions. Defendant assigns the overruling of this motion to suppress the identification as his first assignment of error.

On the hearing on the motion two police officers attested to the facts discussed hereinabove relative to the calls, the stake-out, the identification and the arrest. The trial judge, in denying the motion, concluded that the identification procedure was a reasonable one, not violative of due process, in that the defendant had not yet been arrested and the identification at the pre-arranged meeting was the best way of apprehending him. He pointed out that the only other course available to the police would have been to arrest all persons fitting the description of the rapist who entered the store or came to the store that night and then display such persons to the victim in a police conducted line-up.

Defendant in brief contends that this latter option is exactly what should have been done. He reiterates his contention that the procedure used was an impermissibly suggestive one-on-one identification procedure.

We disagree with defendant’s contention and find no merit in this assignment of error. We find that the procedure used in this case was not a one-on-one identification. As that term has been used, it refers to an identification procedure whereby the police, having a suspect in custody, show the suspect and only the suspect to the victim or witness of the crime. This type of custodial showing, with some few exceptions, has been held to be imper-missibly suggestive, in that the victim or witness may well be influenced by the fact that the authorities have the individual in custody, perhaps conveying an impression that he is the culprit. See State v. Newman, 283 So.2d 756 (La.1973).

Such a concern is not present in the instant case. The defendant was not in police custody. Furthermore, there was nothing about the procedure employed (actually as much a capture as an identification) which in any way can support an argument that it was suggestive. In no way was it suggested or implied to the victim that defendant was the rapist. Her identification was a completely independent one, based solely upon her memory of the rapist.

This assignment has no merit.

ASSIGNMENT OF ERROR NO. 2.

The defendant filed a pretrial motion to suppress taped recordings of the second and third telephone conversations between the policewoman and the caller who identified himself as “John Smith.” Defendant denotes the denial of this motion as assignment of error no. 2.

We note that the tape recordings of the conversation were not played for the jury during trial. The substance of those telephone calls were, however, presented to the jury during the testimony of the policewoman who took the calls. We will therefore address ourselves to defendant’s contention that the recordings, i. e., testimony concerning the substance of the telephone conversations, should have been suppressed.

Briefly, defendant’s contention is that the statements should have been suppressed because the police investigation had focused on “John Smith” and that defendant, alias Smith, was deceived or induced into making incriminating statements without being informed of certain of his constitutional rights. It is defendant’s contention that the principles enunciated in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were applicable, and that “John Smith” should have been informed of his right to remain silent, his right to an attorney, and the other rights required by Miranda.

There is no merit to this contention. In Miranda, the Supreme Court made it clear that that decision was to govern custodial interrogations. The Court stated:

“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
- This is what we meant in Es-cobedo when we spoke of an investigation which' had focused on an accused.”

It is apparent in the instant case that this “John Smith,” who circumstantially was shown to be defendant, was at the time of the incriminating telephone conversations neither in police custody nor deprived of his freedom in any way. Accordingly, we find no merit in the argument presented here.

ASSIGNMENT OF ERROR NO 3.

Under assignment of error no. 3, defendant presents two alleged errors, the first being the denial of his motion to suppress physical evidence, specifically, a pair of gloves, and the second being the introduction of the gloves into evidence during trial. The gloves were seized during a search of defendant’s mother’s automobile. Legal authority for the search of the automobile was premised upon both a properly issued search warrant and upon a consent to search form signed by defendant’s mother. Defendant disputes the validity of the search under each of those documents.

We shall consider defendant’s argument in regard to the search conducted under the authority of the search warrant. Defendant in no way disputes the validity of the warrant, but he does take issue with its execution. The warrant listed three particular things to be seized: 1) $50.00 in cash, 2) a piggy bank, and 3) a certain pair of pants and a shirt. Defendant contends that as the gloves were not specified on the warrant, they were improperly seized in violation of the Fourth Amendment.

We do not find merit in this argument. Evidence obtained in the proper execution of a restricted search warrant issued on probable cause is admissible notwithstanding the fact that such evidence was not specified in the warrant. The validity of such seizure is based on the “plain view” doctrine, which allows seizure of evidence or contraband coming within the officer’s view as long as he had prior justification to be in a position to have that view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Herron, 301 So.2d 312 (La.1974).

The gloves in the instant case were found under the front seat of the automobile which was being searched pursuant to the warrant. As any of the items detailed on the face of the warrant itself could easily have been hidden under the car seat, the officers were justified in searching that location, and when they discovered the gloves, which had been earlier described to them by the victim, the officers were legally entitled to seize them.

As we find that the gloves were properly seized during execution of the search warrant, and accordingly were admissible at trial, we need not address ourselves to defendant’s alternative argument that seizure of the gloves was invalid due to an alleged defect in the consent form signed by defendant’s mother and due to alleged improper execution of this consensual search.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 4.

In his final assignment of error, defendant contends that the trial court erred in denying his motion in arrest of judgment. Defendant argued in that motion that La.R.S. 14:42 is unconstitutional in that its provision for a sentence of death violates the Eighth and Fourteenth Amendments to the United States Constitution. Defendant in brief elaborates upon this contention and specifically argues that the constitutional infirmity lies in the fact that the jury may return a responsive verdict of attempted aggravated rape or simple rape neither of which carries the death penalty. Defendant contends therefore that the jury has the power to render the death penalty in a discriminatory manner, all in violation of the constitutional principles expressed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

This same argument was presented in State v. Selman, 300 So.2d 467 (La.1974). The Court in Selman stated:

“Finally, we find no substance in the argument that by permitting a jury to render responsive verdicts, there still remains in the jury the uncontrolled discretion to impose the death penalty. The responsive verdicts for aggravated rape are as follows: guilty, guilty of attempted aggravated rape, guilty of simple rape, not guilty. The reason for this argument lacking merit is that the jury has no discretion in the imposition of the death penalty for aggravated rape. If the jury finds under the facts of the case that the accused is guilty of aggravated rape, the death penalty shall be imposed. On the other hand, if the jury finds under the facts of the case that the accused is either guilty of attempted aggravated rape or simple rape, they will render a verdict of guilty for that particular crime. We must bear in mind that attempted aggravated rape and simple rape are separate and distinct crimes with separate penalty provisions for each. The fact that death is the mandatory penalty for aggravated rape but not for the responsive verdicts of attempted aggravated rape and simple rape is of no moment. The sole determining-factor as to which penalty will be imposed depends upon the particular crime for which the jury finds the accused guilty, if any. Therefore, we conclude that there is no discretion in the jury for the imposition of the death penalty where the accused is found guilty of aggravated rape.
“Hence, the present death penalty in Louisiana for aggravated rape is constitutionally permissible. It does not violate the Eighth and Fourteenth Amendments to the United States Constitution.”

We have additionally upheld the Louisiana death penalty for murder, as contained in La.R.S. 14:30, despite the identical contention that the possibility of responsive verdicts to the charge of first degree murder affords a jury unbridled discretion in the imposition of the death penalty. State v. Roberts, La., 319 So.2d 317, decision rendered September 5, 1975; State v. Hill, 297 So.2d 660 (La.1974).

These prior decisions are controlling. This assignment of error has no merit.

THE WITHERSPOON ISSUE.

While defendant’s specifications of errors are limited to the four which we have previously discussed, counsel for defendant in a supplemental brief filed in this Court urges an alleged error of asserted constitutional proportions, namely, that the trial court’s excusing two jurors for cause, where they allegedly did not make it unmistakably clear that they would automatically vote against the imposition of capital punishment without regard to the evidence, constituted a deprivation of due process of law under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Defendant requests that we look at the issue, and suggests that if we do not do so, the federal courts will. He cites in this regard Wigglesworth v. Ohio, 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971).

Our statutory procedure will not permit us to review this contention. We hasten to point out, however, that the defendant does indeed have available to him other possible remedies, such as a petition for a writ of certiorari to the United States Supreme Court, or writ of habeas corpus. We do not mean to imply that we find merit in defendant’s argument that Witherspoon has been violated here. The state’s position on this issue incidentally is a persuasive one.

DECREE

Because we have found no merit in the four assignments of error and in view of our procedural limitation which preclude review of the issue raised in brief concerning a possible Witherspoon issue, we affirm conviction and sentence of the defendant.

MARCUS and BARHAM, JJ., concur.

TATE, J., concurs and assigns reasons.

DIXON, J., concurs in part and dissents in part and assigns written reasons.

TATE, Justice

(concurring).

I concur in the majority opinion, except in that portion which notes as possibly “persuasive” the state’s position relative to a Witherspoon violation. See footnote 6.

The state contends that, since the jury is no longer concerned with whether a death penalty is exacted, the defendant cannot complain of the exclusion from service of jurors with ambivalent but not fixed opinions against capital punishment. To the contrary, it seems to me, that neither the state nor the defense can, on their attitude toward the death penalty, question or exclude jurors, if we accept the state’s argument that the jury has nothing whatsoever to do with the imposition of the death penalty.

The state’s suggestion seems to me to be unrealistic and untenable that the jury’s only concern is to select from the responsive verdicts, without regard that one of them means that the accused will be executed.

The artificial and unrealistic basis of this argument is shown by the care the state used to exclude from service on this jury those veniremen with doubts or conscientious scruples against imposition of the death penalty. If indeed the veniremen have no concern with the penalty their verdict will cause the accused, then the state should be indifferent to the private attitude of veniremen against the death penalty.

Logically also, it follows, questioning of veniremen on the subject by either the state or the accused is irrelevant. Likewise, the excusal for cause of a juror because of his views against capital punishment would be reversible error, as depriving an accused of the services of a cross-section of the population on the jury without legal cause.

I do not believe the state will accept these logical consequences of its argument that a Witherspoon violation is immaterial because of the jury’s alleged lack of function with regard to imposition of a penalty. Fundamentally, I believe the jury is actually and by law charged with a great responsibility as to the range of penalty imposed by its verdict of guilty on one of the responsive verdicts. When one verdict of the jury means death for the accused and another means life, we reason from formula and abstraction and not from human reality and responsibility if we say that the jury is not concerned with the penalty to be imposed as a result of the verdict it agrees on.

DIXON, Justice

(concurring).

I concur in the opinion, with this exception: I respectfully dissent as to Assignment of Error No. 4, being of the opinion that the death penalty in Louisiana is vio-lative of the Furman decision in that the jury possesses the uncontrolled discretion to return verdicts of guilty of lesser in-' eluded offenses which do not carry the death penalty.

      . This recitation of the facts is obviously not complete, nor intended to be.

      . In brief, defendant states that by advancing this argument, he in no way admits that he was the “John Smith” who made the telephone calls, but merely assumes that to be the case hypothetically, inasmuch as this was apparently the decision of the jury.

      . Defendant also cites Article 1, § 5 of the Louisiana Constitution of 1974, which requires particularization of the “things to be seized.” As the search warrant was issued and the search conducted on or about January 16, 1974, long before the effective date of that Constitution, its provisions are inapplicable. In any event we do not feel that the cited provision would be authority in support of defendant’s position.

      . We note in any event that there does not appear to be merit in defendant’s argument. His contention that the consent to search form was invalid is based upon the fact that the form is a pre-printed one applicable to search of a house, and while the police scratched out the word house the first time it appeared in the form and substituted the word car, they failed to do so the second time the word house appeared.
      In the body of the form, the police officer described the automobile by year, make, model, color, license plate number, and motor registration number. The evidence shows that defendant’s mother understood she was consenting to a search of her automobile.
      The second argument presented is that the consent to search form only gave permission to search to the three officers who were named in the form, and that as the search was actually conducted by another officer, not one of those named in the form, the search and seizure were invalid. The evidence shows that the automobile was in police custody, and that when the officers who went to defendant’s mother’s house had obtained her consent to search the automobile, they radioed this information to the non-designated police officer, and he then actually conducted the search.

      . At the time defendant was tried, Article 920 of the Code of Criminal Procedure provided that the Court’s review was limited to 1) formal bills of exceptions which had been submitted to and signed by the trial judge, and 2) errors discoverable by a mere inspection of the pleadings and proceedings. In addition, Article 841, C.Cr.P., expressly provided that an irregularity or error could not be availed of after trial unless it was objected to at the time of its occurrence and a bill of exceptions was reserved to the adverse ruling by the trial court. Failure to reserve a bill operated as a waiver of the objection.
      It is undisputed that defendant did not object during the voir dire examination or when the two jurors were excused for cause. Defendant’s perfected bills of exceptions filed with the trial court did not include a bill of exceptions relative to that issue, and indeed his failure to object at the time the alleged error occurred precluded his filing such a bill. Consequently, that alleged error cannot be reviewed under Art. 920(1). Nor is the alleged error one discoverable by a mere inspection of the pleadings and proceedings, [See State v. Craddock, 307 So.2d 342 (La.1975), for a discussion of the type of errors considered discoverable by mere inspection], and therefore it cannot be reviewed under Art. 920 (2).
      Shortly after defendant’s conviction, the Code of Criminal Procedure was amended, substituting assignment of errors for bills of exceptions. See Arts. 841, 844, and 920. As amended, Article 841 still requires an objection to be made, except to a ruling on a written motion, at the time an error or irregularity occurs. Consequently, under present law we are still unable to review an asserted error such as the one presented in this case.

      . In Witherspoon, the Supreme Court held: “ . . .a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defend-fendant can constitutionally be put to death at the hands of a tribunal so selected. . . . To execute this death sentence would deprive him of his life without due process of law.” 391 U.S. 510, 522-23, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776.
      Accordingly, the only veniremen who are to be excused are:
      “those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be develojjed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” 391 U.S. 510, 522-23 n. 21, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776.
      The state contends that the two prospective jurors who were challenged for cause were correctly excused under Witherspoon, and under Art. 798(2) (b), C.Cr.P., because each of the jurors stated essentially that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case.
      The state’s principal contention, however, is that Witherspoon was not applicable to the jury selection in defendant’s trial. The state argues that the holding in Witherspoon was expressly limited to the discretionary sentencing function of a capital ease jury. In such a situation the Supreme Court held that it was a violation of due process to execute a death sentence imposed by a jury from which those citizens who had general objections to the death penalty had been excluded. While the argument was presented before it, that Court in Witherspoon refused to find that a jury devoid of individuals who had misgivings about the imposition of capital punishment was unable to make a just' determination of guilt or innocence.
      The state points out that by virtue of amendments to the Criminal Code and the Code of Criminal Procedure, made after rendition of Furman v. Georgia, supra, the jury before which the defendant was tried did not have the discretion to impose either a death sentence or life imprisonment. (See La.R.S. 14 :42, mandating the death sentence for aggravated rape; Art. 814, C.Cr.P. limiting an aggravated rape guilty verdict to the single finding, guilty as charged, although also responsive are the verdicts guilty of attempted aggravated rape, guilty of simple rape, or not guilty; and Art. 817, C.Cr.P., providing that “any qualification of or addition to a verdict of guilty ... is without effect upon the finding.”) Their sole function was to make a finding of guilt or innocence. Consequently, the state argues that Wither-spoon was inapplicable.


source: Caselaw Access Project

author: DIXON, Justice. SANDERS, Chief Justice

license: Public Domain

text:
    STATE of Louisiana v. Willie E. CALLIHAN.
    No. 56227.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      Timothy A. O’Brien, III, Student Practitioner, Arthur A. Lemann, III, Supervising Atty., Loyola Law School Clinic, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yokum, Dist. Atty., for plaintiff-appel-lee.
   DIXON, Justice.

This is an out-of-time appeal, coupled with an application for a writ of habeas corpus, from the defendant’s conviction on November 5, 1969 for manslaughter. On June 28, 1966 Mrs. Dorothy Gatlin succumbed to stab wounds she had received the night before. The defendant, Willie Callihan, was taken into custody on June 28, 1966 and was subsequently indicted and convicted. In this out-of-time appeal, defendant relies on two bills of exceptions taken at the trial, and four additional assignments of error. Since we find merit in the bills of exceptions, we pretermit discussion of the additional assignments of error.

Bills of Exceptions Nos. 4 and 8 relate to the trial court’s ruling, on a motion to suppress, that an inculpatory statement given by the defendant and reduced to writing on June 29, 1966 was admissible. The defendant was taken into custody by Tangi-pahoa Parish deputies on June 28, 1966 between 9:00 and 10:00 a. m. after questioning at his home. He was brought to the jail and questioned further by officers about the Gatlin stabbing. At no time before or during this questioning was he advised of his right to remain silent or to have an attorney present during questioning.

Around 4:00 p. m. on June 29, 1966 (either the same day or the day after he was first taken into custody) the defendant told the deputies he would make a statement. Thereupon, an attorney was secured to advise the defendant of his rights. When this attorney arrived from his office across the street, he advised the defendant that he did not have to make a statement and that he should not do so. Nevertheless, the defendant made a statement, in which he confessed to entering Mrs. Gatlin’s home and stabbing her when she confronted him. The trial judge ruled that the statement was free and voluntary, and therefore admissible at the trial. This ruling constitutes reversible error.

On June 13, 1966, some three years before this trial, the United States Supreme Court handed down its decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court summarized its holding as follows:

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” (384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694). (Emphasis added).

In Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a companion case to Miranda, handed down that same day, the Supreme Court recognized that a post-interrogation attempt to meet the Miranda requirements cannot succeed. In the Westover case, the defendant had been questioned by state authorities without being informed of his right against self-incrimination. Immediately thereafter, he was turned over to FBI agents who advised him of his rights before questioning him. The FBI agents secured a confession which was used against him in a federal prosecution. The Supreme Court held that the confession was inadmissible:

It is clear from the record that the defendant was not informed of these rights before questioning began. He was advised of his rights only after he informed the deputies that he would make a statement, and then by the attorney. An after-the-fact attempt to ritualize the safeguards of Miranda cannot be used to deprive the defendant of the very rights the Miranda decision sought to protect:

“To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice.” (Miranda v. Arizona, 384 U.S. 436, 457, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694).
“. . . Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. There is no evidence of any warning given prior to the FBI interrogation nor is there any evidence of an articulated waiver of rights after the FBI commenced its interrogation. The record simply shows that the defendant did in fact confess a short time after being turned over to the FBI following interrogation by local police. Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westove'r’s point of view the warnings came at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed.” (384 U.S. 436, 496, 86 S.Ct. 1602, 1639, 16 L.Ed.2d 694). (Emphasis added).

Like Westover, in the instant case the warnings came only at the end of the interrogation process, that is, only after the defendant, having already been questioned, decided to make a statement. The fact that a lawyer was called at this point to advise the defendant that he did not have to make any statements cannot serve to render the statement admissible.

This court has held that the burden is on the State to prove beyond a reasonable doubt that the legal requirements for the voluntariness of statements made during custodial interrogation were complied with. State v. Monroe, 305 So.2d 902 (La.1974); State v. Bray, 292 So.2d 697 (La.1974); State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969). One of those legal requirements is that the defendant be given the “Miranda” warnings before custodial interrogation begins. State v. Levy, 292 So.2d 220 (La.1974); see State v. Tarrance, 252 La. 396, 211 So.2d 304, 308 (1968), cert. den., 393 U.S. 1038, 89 S.Ct. 662, 21 L.Ed.2d 586, wherein this court discussed Miranda as follows:

“. . . While there is evidence which supports the judge’s observation, we do not think it is the number of warnings that controls but rather the time they are given by the investigating officers. In other words, it was required that appellant be advised of his constitutional rights at the time the investigation of Mrs. Millien’s death ceased to be exploratory in nature, i. e., when the officers focused their attention on appellant as the guilty party in a homicide and sought to secure inculpatory statements from him. For the protective procedures erected in the Miranda case, as we understand it, make it obligatory for the officers to inform an accused of his privilege to remain silent and of his right to counsel when the individual is first subjected to interrogation while in custody at the police station, ‘ * * * or otherwise deprived of his freedom of action in any significant way.’ See Miranda v. State of Arizona, 86 S.Ct. at page 1612, 16 L.Ed.2d at page 725.”

Since the record is clear that the defendant was not informed of his rights at the time custodial interrogation began, the motion to suppress the inculpatory statement should have been granted.

For the reasons assigned, the judgment and conviction are reversed, and set aside, and the case is remanded for a new trial in accordance with law.

SANDERS, C. J., dissents and will assign written reasons.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, Chief Justice

(dissenting).

In 1970, the manslaughter conviction of Willie E. Callihan was before this Court on appeal. He was represented by able counsel and relied upon nine bills of exceptions for the reversal of his conviction. After review, a unanimous Court affirmed his conviction. See State v. Callihan, 257 La. 298, 242 So.2d 521 (1970). Three years later ,this Court denied defendant’s application for habeas corpus. State ex rel. Callahan v. Henderson, La., 275 So.2d 787 (1973).

In 1974, in a habeas corpus proceeding in the United States District Court, the court ordered an out-of-time, second appeal to this Court.

The majority has reversed the conviction because of a failure to advise defendant, who confessed the crime, of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). I disagree.

It is true that the Miranda warnings were not given at the time of his arrest and first interrogation. The day following his arrest, however, an attorney was appointed to represent him. Before making the statement complained of, defendant was advised of his rights. His attorney was present at the time he made the statement. The attorney testified that the defendant’s statement was free and voluntary.

In my opinion, the confession was sufficiently insulated from the first interrogation to make it admissible. See Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L. Ed.2d 423 (1967); Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968).

For the reasons assigned, I respectfully dissent.

      . Defendant’s conviction was first upheld by this court in State v. Callahan, 257 La. 298, 242 So.2d 521 (1970). A subsequent application for a writ of habeas corpus was denied. State ex rel. Callahan v. Henderson, 275 So.2d 787 (La.1973). Subsequent federal habeas relief resulted in this out-of-time appeal. State ex rel. Callahan v. Parish of Tangipahoa et al., # 73-2016, U. S. District Court, Eastern District of La.

      . The four additional assignments of error allege ineffective assistance of trial counsel.

      . On the prior appeal to this court the same bills were considered, but only as explained by the per curiam of the trial judge; even though the evidence was in the record before us, the court declined to consider it because the bills of exceptions did not purport to incorporate it.

      . Miranda applies to trials beginning after June 13, 1966. State v. Page, 251 La. 810, 206 So.2d 503 (1968).


author: SANDERS, Chief Justice. BARHAM, J.,

text:
    STATE of Louisiana v. James E. BERNARD.
    No. 56437.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Jon Gegenheimer, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gret-na, Keith S. May, Research Atty., Research and Appeals Div., for plaintiff-ap-pellee.
   SANDERS, Chief Justice.

The State charged James E. Bernard by bill of information with armed robbery in violation of LSA-R.S. 14:64. The defendant was convicted in March of 1971. The Twenty-fourth Judicial District Court sentenced the defendant to imprisonment for fifteen years. In March of 1973, defendant filed a petition for writ of habeas corpus in the trial court. The trial court judge denied petitioner’s application for habeas corpus relief. Petitioner then filed his petition with this Court. We denied the application on June 11, 1973. La., 278 So.2d 507 (1973). Petitioner refiled the writ application with this Court. The application was again denied. La., 286 So.2d 363 (1973).

Petitioner then filed a habeas corpus petition in the United States District Court for the Eastern District of Louisiana. On April 11, 1975, the court held an evidentiary hearing. The court found that there was no merit to petitioner’s contention that he was denied effective assistance of counsel. However, it concluded that the petitioner misunderstood his right of appeal. Accordingly, the court ordered the State of Louisiana either to grant the defendant an out-of-time appeal, retry him, or release him from custody. Thus, the defendant appeals his conviction, relying on four appealable specifications of error.

According to the testimony adduced at trial, the facts surrounding the defendant’s arrest and the chain of custody of the evidence seized at that arrest are as follows:

At approximately 10:15 p. m., December 9, 1970, the L’il General Food Store in Westwego, Louisiana was robbed. Minutes thereafter, Detective Cerniglia heard the description of the man who robbed the food store over his police car radio. At that time he noticed the defendant, who fit the description, in a vehicle behind him. The defendant, in his vehicle, was suspiciously attempting to stay out of the sight of Detective Cerniglia. Detective Cernig-lia saw the defendant, who was driving the vehicle, take off his shirt and throw it out of sight while the other man in the front seat steered the vehicle. The officer radioed for assistance, and the defendant’s vehicle was stopped. The defendant had money (bills as well as coins) stuffed into his pockets, in such a manner that it could be seen. With the aid of a flashlight, the officers saw a gun in the console of the car. In addition, a partially exposed shirt with a two-dollar roll of nickels wrapped in it could be seen on the floorboard. The defendant was arrested, and the evidence was taken by Officer Cerniglia.

Defendant reserved bills of exceptions at trial when the court overruled his objections to the admissibility of several physical, objects. As the bills of exceptions are similar in nature, they will be consolidated for treatment. Defendant objected to the introduction of the gun into evidence, asserting that the chain of custody has not been established. He objected to the cartridges or shells found in the gun being admitted into evidence because there were no identifying marks attached to the shells showing that they were the shells taken from the gun. The court admitted sixty-nine dollars and twenty cents in currency into evidence over defendant’s objection that there was no proof that the admitted money was the stolen money. Defendant objected to the introduction of the shirt into evidence arguing that it was not properly identified.

The demonstrative evidence is ultimately a question for the jury. For admission, it suffices if the demonstrative evidence is shown to be related to the case by a preponderance of the evidence. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972); State v. McQueen, 257 La. 684, 243 So.2d 798 (1971); State v. Pesson, 256 La. 201, 235 So.2d 568 (1970); State v. Coleman, 254 La. 264, 223 So.2d 402 (1969).

The record reflects that Randall J. Dumaine, the Criminal Evidence Clerk, received two packages from Technician Olson and that these two packages were then sealed and deposited in the vault. Mr. Du-maine opened the sealed packages in court and testified that the contents were the items which Olson gave him. Mr. Olson testified that the items were given to him by Detective Peter David and remained in his possession until he gave them to Mr. Dumaine. Mr. David received the items introduced from Detective Cerniglia, who identified all the items in evidence as those which he took from the defendant and gave to Mr. David. Every person who was in possession of the evidence appeared in court and testified. We conclude that connexity was sufficiently shown for admission in evidence.

The specifications of error are without merit.

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

DIXON, J., concurs.

BARHAM, J.,

dissents from Court’s refusal of full review to this out-of-time appeal ordered by federal court on writ of habeas corpus. We will eventually review the entire record.

      . In a motion to suppress, counsel for defendant argues that the evidence seized by the State should be suppressed as it was not seized incidental to a valid arrest and/or search. After a hearing on the motion, the court denied the defendant’s motion. In defense counsel’s brief, he raises that denial as a specification of error. However, this Court cannot consider his argument as there is no showing in the record that the defendant designated that error in writing in the trial court as an assignment of error to be urged on appeal. As the defendant reserved neither a bill of exceptions nor made an assignment of error, his argument cannot now be considered. See LSA C.Cr.P. Arts. 844 and 703, Official Revision Comment (g). State v. Donnell, La., 318 So.2d 3 (1975); State v. Shaw, La., 318 So.2d 4 (1975); State v. Shillow, La., 310 So.2d 103 (1975).


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Robert Joseph CELESTINE.
    No. 56109.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Thomas D. Brumbaugh, Champagne, Colomb & Brumbaugh, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   SUMMERS, Justice.

By bill of information the District Attorney charged that Robert Celestine and Joseph Junius Logan, while armed with a pistol, attempted to rob Hugh Thomas in violation of Articles 27 and 64 of the Criminal Code.

Logan entered a plea of guilty and was sentenced. Celestine pled not guilty, was tried by a jury, found guilty and sentenced to 25 years with the Department of Corrections, with credit for time served. On this appeal he assigns three errors.

He asserts, first, that the verdict of the jury is contrary to the evidence adduced at the trial because the jury did not give the defendant the benefit of every reasonable doubt arising out of the evidence or lack of evidence as required by Article 804 of the Code of Criminal Procedure. Because of this, he argues, a question of law is presented which this Court may properly adjudicate on appeal.

No error has been assigned as required by Article 841, and no motion for a new trial has been filed and disposed of as required by Articles 851-58 of the Code of Criminal Procedure.

Notwithstanding the fact that this issue is presented for the first time in brief on this appeal and is not properly before the Court, there is no merit to the defendant’s contention.

Appellate jurisdiction of this Court in criminal matters is limited to questions of law only. Questions of fact bearing upon the guilt or innocence of the accused are the exclusive province of the jury. La.Const. Art. VII, 10 (1921); La. Const. Art. V, ¶ 5(C) (1974); State v. Washington, 292 So.2d 234 (La.1974). Allegations that the verdict is contrary to the law and the evidence involve a question of the sufficiency of the evidence and, therefore, present nothing for review on appeal even if the allegations have been set forth in a motion for a new trial as required by Article 851 of the Code of Criminal Procedure. State v. Hollingsworth, 292 So.2d 516. (La.1974).

Defendant’s contention that the jury did not give him the benefit of every reasonable doubt is a fact question which we cannot review on appeal, and for that additional reason this improperly presented assignment of error has no merit.

Alternatively, it is asserted by the defense that if the Court should reject the foregoing contention because a motion for a new trial was not timely filed, then he was denied the right to do so because, although he was represented by counsel at the trial and at the time of sentencing, he was, in effect, unrepresented because counsel did not file a motion for a new trial to have the judge pass upon the merits of the motion.

Nowhere in brief or elsewhere in this record are we informed what errors were committed at the trial which would support the motion, except a vague contention that the ' evidence was insufficient to support the verdict. Defendant was adequately represented by able counsel throughout the trial and at sentencing. We will not say, on the basis of the vague assertions in brief, that he should have filed a motion for a new trial or that it was error for him to fail to do so.

For the reasons assigned the conviction and sentence are affirmed.

BARHAM, J., concurs.


author: CALOGERO, Justice. DIXON, Justice

text:
    Peter GONZALES and Patricia Gonzales v. The XEROX CORPORATION, et al.
    No. 55968.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Charles W. Franklin, Franklin, Moore & Walsh, Baton Rouge, for defendants-applicants.
    Roy Maughan, Ltd., Elliott W. Atkinson, Jr., Roy Maughan, Baton Rouge, for plaintiffs-respondents.
   CALOGERO, Justice.

We granted writs in this case upon application of defendants to review a judgment of the First Circuit Court of Appeal, 307 So.2d 153 (La.App. 1st Cir. 1974). The trial court, after a jury trial, had dismissed plaintiffs’ suit. Plaintiff appealed seeking a reversal of the trial court judgment, and a favorable determination on the merits, by the Court of Appeal. Defendant, satisfied with the verdict, urged the Court of Appeal to affirm the trial court judgment. The Court of Appeal reversed and remanded to the trial court for a new trial; finding reversible error in the trial court’s refusal to grant a requested special jury charge. Our writ grant was prompted by a belief that remand of the case under the circumstances may have been improper.

Dawn Rene Gonzales, plaintiffs’ four and one-half year old daughter, was killed on July 7, 1973, at Grand Isle, Louisiana, after she was struck by a car driven by defendant Juan G. Hernandez, an employee of Xerox Corporation. Employers Insurance of Wausau, a third defendant, carried the automobile liability insurance on the Xerox vehicle. The little girl was struck as she attempted to cross Louisiana Highway 1. Plaintiffs charged Hernandez with negligence proximately causing the child’s death. Defendants denied that Hernandez was negligent and alternatively pleaded contributory negligence of plaintiffs, allegedly a lack of proper parental supervision.

At the trial, plaintiffs had requested that the judge give this special charge to the jury:

“A motorist’s duty to look ahead and observe never ceases, and a motorist must see what he can see and in legal contemplation does see, and his failure to see what he could have seen by exercising due diligence does not absolve him from liability in resulting injuries to others.”

The trial judge refused to give the charge and did not incorporate its substance into his general charge. He did, however, give an instruction concerning a motorist’s duty in the vicinity of small children, as follows :

“In considering whether there is negligence in this particular case, the law is to the effect that persons operating automobiles on public streets and highways in the vicinity of small children have a high duty of care. The motorist encountering children upon the roadside must anticipate that the very young are possessed of but limited judgment and that there actions are likely to be sudden, unpredictable and often foolish.”

The Court of Appeal decided that the instruction which the judge gave did not express the substance of the requested special charge and that the requested charge should have been given because it stated pertinent and applicable law. That legal principle, in practically the identical words, has been enunciated in Jackson v. Cook, 189 La. 860, 181 So. 195 (1938) and numerous subsequent opinions of our courts. See, for example, Bell v. Allstate Insurnace Co., 260 So.2d 363 (La.App. 4th Cir. 1972); Pea v. Smith, 224 So.2d 37 (La.App. 1st Cir. 1969); Reynolds v. Transamerica Ins. Co., 221 So.2d 889 (La.App. 1st Cir. 1969).

The Court of Appeal stated that the essential question of fact in this case is this:

“Even if defendant under these particular facts did not have to anticipate a child would dash in front of his car, the critical question of fact is whether the defendant could and therefore should have seen the child standing by the side of the road. The law applicable to this factual situation would absolve the defendant had he not been able to observe the child before she suddenly darted into the road; and would hold him responsible if she were standing by the side of the road and in a position where he could and should have seen her.” 307 So.2d at 156.

We agree that this was the essential factual question. Therefore, in the trial of the case, there could hardly have been any more important legal principle for the consideration of the jury than that defendant’s failure to see what he could have seen by the exercise of due diligence does not absolve him from liability. Indeed, this is the very principle of law which the jury was required to apply to whatever facts were established by the evidence. But the jury could not have applied that principle to the facts because it was not a part of the judge’s charge to them. Since the jury verdict was not based upon or guided by an essential and correct legal principle, the Court of Appeal properly decided to give no weight to the judgment of the trial court which implemented the jury verdict. However, the Court of Appeal then remanded the case to the trial court for a new trial. We conclude that this latter action was erroneous.

While the trial court remains the original forum for resolving factual and legal issues, the Louisiana Constitution expressly extends the jurisdiction of appellate courts in civil cases to the review of facts as well as law. Accordingly, appellate courts render judgments on the merits when the trial court has made a consequential but erroneous ruling on the exclusion or admission of evidence. Builliard v. New Orleans Terminal Co., 185 La. 924, 171 So. 78 (1936); Baker v. D. H. Holmes Co., Ltd., 285 So.2d 282 (La.App. 4th Cir. 1973); Broussard v. State Farm Mutual Automobile Ins. Co., 188 So.2d 111 (La.App. 3rd Cir. 1966), writ denied, 249 La. 713, 190 So.2d 233. Likewise, when an appellate court has all the facts before it, a trial judge’s erroneous instruction to the jury does not warrant a remand. Dixon v. Copeland, 289 So.2d 261 (La.App. 1st Cir. 1973); Clay-Dutton, Inc. v. Plantation Nursing Home, 239 So.2d 442 (La.App. 4th Cir. 1970); Barreca v. United States Fire Insurance Co., 182 So.2d 138 (La.App. 4th Cir. 1966); Duet v. Montagnet, 160 So.2d 561 (La.App. 4th Cir. 1964).

In addition to the constitutional authority, and consistent with it, there is a very practical consideration which encourages our appellate courts to exercise their jurisdiction to review factual findings: judicial economy. When the entire record is before the appellate court, remand for a new trial produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process. Although the appellate court does not gain the benefit of personally viewing the witnesses, it does have a complete record and the constitutional authority to decide.

Substantial deviation from the rule that appellate tribunals with a complete record before them review facts and render decisions has been infrequent. In Herbert v. Travelers Indemnity Co., 193 So.2d 330 (La.App. 4th Cir. 1966), this Court refused' to grant writs in a case in which, following an erroneous exclusion of evidence by the trial court, the Court of Appeal remanded for a new trial. The opinion was criticized in 41 Tul.L.Rev. 922, 92S (1967) where it was stated that:

“the practical result of the case is that it ■ will undoubtedly be appealed again and thus come before the same court with the same record at an unnecessary cost to the litigants. The decision seems to drastically reduce the effects of appellate review of facts. . . . ”

More authoritative than Herbert v. Travelers, supra, however, was this Court’s decision in Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969). In that case, this Court itself remanded for retrial. The Court of Appeal had affirmed the trial court judgment; this Court reversed on the basis of an erroneous jury instruction and remanded to the trial court. That it was the Supreme Court in Bienvenu which first found error in the trial court’s instruction, rather than the Court of Appeal, as in this case, does not present a rational basis for our now attempting to distinguish Bienvenu. Nor can we logically distinguish Bienvenu on the basis that the improper jury instruction was much more damaging to the plaintiff’s case than it was in the case before us. Consequently, we find it necessary to overrule Bienvenu v. Angelle, supra, in holding that the action of the Court of Appeal in remanding the case for retrial was error.

Accordingly, we affirm that portion of the Court of Appeal judgment which reversed the judgment of the trial court; we reverse that portion of the Court of Appeal judgment which remanded the case to the district court for a new trial; and, consistent with the views expressed herein, we remand this matter to the Court of Appeal for further consideration of the trial record and for decision on the merits.

Affirmed in part, reversed in part, and remanded to the Court of Appeal.

DIXON, J., dissents with reasons.

BARHAM, J., does not participate.

DIXON, Justice

(dissenting).

I respectfully dissent.

Both plaintiffs and defendants have urged this court to reverse the court of appeal and require the court of appeal to decide this damage suit on the record before it. The majority’s conclusion can, there-, fore, be justified if it is considered that the plaintiffs, who demanded the jury trial, have abandoned that right. Nevertheless, even though both parties have sought the result which the majority reaches, we should not overrule established jurisprudence and establish new procedures for appellate review of jury cases in Louisiana, without a more compelling reason than “judicial economy.”

That new system effectively deprives a litigant of his statutory right to a trial by a properly instructed jury. Under the majority ruling, if the instructions to the jury are so erroneous that the jury cannot find the facts and decide the legal issues presented to it, the case is then taken by the court of appeal to find the facts and the law applicable. Until now, the courts of appeal, when the jury instructions, although imperfect, nevertheless adequately instructed the jury on the law applicable when taken as a whole, would review the evidence and affirm if the evidence supported the jury verdict. Bush v. St. Paul Fire and Marine Ins. Co., 264 So.2d 717 (La.App.1972). When the instructions were so erroneous, however, as to prevent a proper determination of facts and issues under the law, a new trial should be ordered. Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969). It is questionable whether it is more economical for a court of appeal to review the record, find the facts and apply the law than for a civil jury on a new trial to review the record, find the facts and apply the law. (Testimony at the former trial can be used at the new trial. Code of Civil Procedure 1978; see Code of Practice 560.1, 563). Juries are much more expeditious than appellate j udges.

A jury “cannot be dispensed with without the consent of the party at whose instance it was called.” Putnam & Norman v. Levee, 180 La. 101, 156 So. 189-190 (1934).

      . The case before us arose under the Louisiana Constitution of 1921 which provided that in all civil cases “where the Supreme Court is given appellate jurisdiction, the appeal shall be both upon the law and the facts.” Art. VII, Sec. 10. The Courts of Appeal likewise entertain appeals upon both the law and the facts. Art VII, Sec. 29. This grant of appellate review of facts has remained the same for almost one hundred years. The 1879 Constitution specified that the appeal to the Supreme Court, at that time the only appellate court, was to be “on the law and the facts.” Art. 81. The 1898 Constitution also granted to the Supreme Court “appeal on the law and the facts.” Art. 85. The provision in the 1898 Constitution which delineated the jurisdiction of the Courts of Appeal did not include what issues could be taken up by those courts. Art. 98. The 1913 Constitution granted both the Supreme Court and the Courts of Appeal jurisdiction to review both the law and the facts. Arts. 85, 98. The present Louisiana Constitution of 1974, which became effective on January 1, 1975, continues the same jurisdictional charge when it provides that “the jurisdiction of the supreme court in civil cases extends to both law and facts.” Art. 5, Sec. 5. The scope of review of the Courts of Appeal is set out in this way: “Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.” Art. 5, Sec. 10. Efforts at the recent constitutional convention to rescind tic authority of appellate courts to review factual findings failed. Transcript of Constitutional Convention, Yol. IX, 30th Day, pp. 61-73.
      These constitutional provisions are implemented by the Louisiana Code of Civil Procedure which defines the scope of review of Courts of Appeal as follows:
      “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” Art. 2164.
      As is explained in the Official Revision Comments to this article, this provision was intended to embody, but apparently not change, two articles of the Code of Practice of 1870 which, while referring specifically only to the Supreme Court applied as well to the Courts of Appeal. The two Code of Practice Articles had provided as follows:
      “Art. 905. When the Supreme Court reverses the judgment of an inferior court, it shall pronounce on the case the judgment which the lower court should have rendered, if it be in possession of all the facts and testimony to enable it to pronounce definitively.”
      “Art. 906. But if the court shall think it not possible to pronounce definitively on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refuse to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law.”

      . The decision in Bienvenu v. Angelle, supra, was criticized in 30 La.L.Rev. 301, 302 (1969) on the basis that the “net effect of the holding ... is that Louisiana jury trials are now burdened both with the theoretical disadvantages of Louisiana appellate review and also with the administrative disadvantages of retrials and multiple appeal because of procedural technicalities inherent in common-law jury-trial review.”

      . Bienvenu v. Angelle, supra, involved an action for defamation based principally upon defendant’s statements concerning the character and reputation of the plaintiff which were made to an investigator for the Civil Service Commission. The trial court charged the jury that, because any statements made by the defendant to this investigator were privileged, they could not form the basis for slander. Under the facts of the case, this instruction was tantamount to directing the jury to give judgment to the defendant.


author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana v. Michael J. ROMANO.
    No. 56208.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Timothy C. Ellender, St. Martin & El-lender, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William G. Yates, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Michael J. Romano, with distribution of a controlled dangerous substance, marijuana. LSA-R.S. 40:966. Following trial, the jury found him guilty of possession of marijuana and sentenced him to serve six months imprisonment in the parish jail and to pay a fine of $250.00, in default of which he must serve an additional six months in jail. Defendant has appealed his conviction and sentence to this Court.

Since the defendant was not convicted of a felony, nor was he sentenced to more than six months imprisonment or fined more than $500.00, there is no appellate jurisdiction in this case. La.Const. Art. V, § 5(D) (1974); LSA-C.Cr.P. Art. 912.1. Nevertheless, under Rule I, § 10 of the Rules of the Supreme Court of Louisiana, this Court in its discretion may treat an appeal improperly before it as an application for supervisory writs. We have elected to do so. We find no merit to any of. defendant’s four specifications of errors, and, accordingly, we deny his writ application.

The events out of which the defendant’s conviction arose commenced on January 24, 1973, when Monty Dodd, a confidential informant, contacted David Yelverton, an agent for the Southeast Louisiana Regional Bureau of Drug Enforcement, and informed him of a possible drug transaction. Thirty minutes later, Dodd told Yelverton and another agent that he had been in contact with Wayne Falgout, who had advised him that he possessed a large quantity of marijuana, and he would sell some to Dodd for $125.00 per pound. The agents decided to have Dodd purchase one pound.

According to the testimony, inside the apartment, Dodd met and spoke with Fal-gout and the defendant, Romano, who shared the apartment with Falgout. Romano was sitting on the couch bagging marijuana. Dodd purchased a one-pound bag of marijuana from Falgout for $125.-00. Romano then offered to sell Dodd a smaller bag containing one lid of marijuana for $10.00, which he also purchased. Dodd left the apartment and at a pre-ar-ranged location he met the two agents and gave them the marijuana he had purchased.

Shortly thereafter, the police arrested Falgout and Romano and charged them both with distribution of marijuana. Fal-gout pleaded guilty. Romano pleaded not guilty, and this conviction and sentence ensued.

SPECIFICATION OF ERROR NO. 1

During his cross-examination of Monty Dodd, defense counsel asked him how much money he earned in the previous year as an informant; he replied that he had no idea. The defense attorney then questioned him about his income tax returns. Upon an objection by the State, the defense attorney stated that he was attempting to impeach the credibility of the witness by showing that he had falsified his income tax returns. The court sustained the State’s objections. The defendant argues that, because most of the State’s case depended upon the testimony, of this paid informant, evidence as to whether or not he reported all of the income he derived from his activities with the narcotics bureau was very important and had a direct bearing upon his credibility as a witness.

We infer from the defendant’s argument that he wanted the testimony before the jury not only to undermine the witness’ credibility, but also to show that the witness had an economic interest in the case. Sée LSA-R.S. 15:492; State v. Senegal, La., 312 So.2d 280 (1975). However, these authorities are inapplicable, because although Dodd testified that he did not know how much income he had earned from the narcotics bureau in the course of the past year, he estimated that the amount of money earned from the particular transaction concerning the defendant was approximately $30.00 or $40.00. This testimony was adequate to show his economic bias or interest, and the information concerning his income tax returns for the year was irrelevant and immaterial. Furthermore, evidence of Dodd’s malfeasance in preparing his income tax returns was not competent evidence for impeaching his credibility in this prosecution. LSA-R.S. 15:491,494.

We find no merit to the first specification of error.

SPECIFICATION OF ERROR NO. 2

Defense counsel complains because the trial judge did not allow him to question the witness Dodd about a prior arrest which was still pending at the time of this trial. He contends that this evidence was admissible under LSA-R.S. 15:492 to show bias or corruption of the witness because the charge had been continued several times and was thus relevant to show the witness’ possible motivation to cooperate with the district attorney’s office both in his role as an informant and in his testimony at the trial.

The evidence was clearly inadmissible under LSA-R.S. 15:495, which provides, in pertinent part:

“ . . . and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

See also State v. Beach, La., 279 So.2d 657 (1973).

SPECIFICATION OF ERROR NO. 3

Defendant complains of the admission into evidence of a one pound bag of marijuana and testimony about it on the ground that he was being tried solely for the distribution of one lid of marijuana, which he had sold for $10.00, not for the distribution of a whole pound of it and that the admission of the latter was very prejudicial.

The State charged Falgout and Romano jointly with distribution of marijuana of an unnamed quantity. The testimony elicited at the trial of Romano established that the two men shared an apartment, that Romano was aware at all times of Falgout’s selling of narcotics, and that Romano was present in the room and was bagging marijuana throughout the course of Falgout’s sale to Dodd, immediately after which Romano sold Dodd an additional lid of marijuana. Thus, the two sales occurred within minutes of each other, and Romano witnessed the entire transaction between Fal-gout and Dodd while he bagged his own marijuana. Under these circumstances, the evidence was admissible as part of the res gestae under LSA-R.S. 15:447, 448, and this specification of error is without merit.

SPECIFICATION QF ERROR NO. 4

Defendant contends that it was error for the trial court to allow the prosecution to recall its own witness, Dodd, during its case in chief and before closing for the limited purpose of establishing a chain- of evidence. Authority for the trial judge’s action exists in Article 765 of the Louisiana Code of ' Criminal Procedure, which provides, in pertinent part:

“The normal order of trial shall be as follows:
"* * *
“(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument; . . . ."

We hold that the trial judge did not abuse the discretion vested in him under Article 765, and, therefore, we find no reversible error in this specification.

For the reasons assigned, the writ application is denied.

DIXON, J., concurs.

BARHAM, J., dissents.

TATE, J., dissents and assigns written reasons.

TATE, Justice

(dissenting).

I respectfully dissent.

The cross-examination of Dodd, the informer witness for the state, was improperly restricted. His gross income from undercover activities is plainly relevant on the issue of his bias and alleged corruption.

Further, the defendant cannot be denied cross-examination of this state witness on the pending charges against him on the issue of his bias, impartiality, and motivation. This was held by Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Such restrictions on cross-examination of a state witness denies an accused his confrontation rights under the Constitution of the United States. See Davis.

      . Possession of a controlled dangerous substance is a lesser included offense within the crime of distribution and is properly a responsive verdict to such a charge. State v. Stewart, La., 292 So.2d 677 (1974).

      . Defense counsel explained his question as follows:
      “I’d like the record to reflect that I was also going to attempt to introduce evidence of an aggravated battery charge, Arrest No. 15991 on 10/26/72 when Monty Dodd shot Dave Blakeman with a 22 calibre pistol, and it has been ruled by the Court that introduction of this charge is not admissible.”


author: DIXON, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Jack P. F. GREMILLION, Jr.
    No. 53007.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    A. Russell Roberts, Metairie Chairman, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, (Recused), Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, Henry A. Politz, Shreveport, John F. Pugh, Thibodaux, John B. Sco-field, Lake Charles, Thomas O. Collins, Jr., New Orleans, Committee on Professional Responsibility, for plaintiff-petitioner.
    M. Aubrey McCleary, Jr., McCollister, Belcher, McCleary & Fazio, Baton Rouge, Milton P. Masinter, New Orleans, for defendant-respondent.
   DIXON, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disbarment proceeding against Jack P. F. Gremillion, Jr. Hearings were held before Frank W. Middleton, Jr., whom we appointed commissioner. The commissioner found against the respondent three specifications brought against him.

The specifications involved forgery, misrepresentation of material facts, perjury and perhaps even theft. We agree with the findings of fact and conclusions of law of the commissioner and paraphrase in ex-tenso his statement of the case.

The first specification considered by the commissioner involved a forged act of mortgage. The respondent required a client, Winfield A. Hayden, to execute two mortgages in his favor as security for his fee. These two acts of mortgage were allegedly passed before David L. Ray, Notary Public. In fact, the acts were neither signed by nor passed before David L. Ray. The respondent gave the acts, signed by himself and Hayden, to his secretary, with instructions to finish them herself — “get the show on the road,” in respondent’s words.

The commissioner found:

“. . . From this testimony, as well as that otherwise offered, in connection with this specification as well as the others, it would appear to have been the policy of Respondent and of his employees to supply the name of any Notary needed to complete any blank, whether said Notary was present, gave authority, or, in fact, had any knowledge of the transaction.”

The second specification considered by the commissioner is not only more serious, but also casts stronger suspicion on the respondent’s fitness to engage in the practice of law.

In December of 1970 respondent approached officers of the American Bank and Trust about a loan in order to purchase property owned by James Ott. The bank agreed to an $11,000 loan, subject to respondent’s furnishing the bank with a title letter certifying his title to the property.

On December 30, 1970 respondent and Ott consummated a “sale with assumption of mortgage and mortgage” whereby respondent assumed the first mortgage and executed a second mortgage in favor of Ott. On that same day he executed a collateral mortgage in the sum of $11,000 in favor of the bank, secured by the Ott property.

By letter dated January 14, 1971, although in fact written some six weeks or more after that date, respondent’s office issued a title opinion, stating that respondent had a valid and merchantable title and that the bank had a • second mortgage on the property. This letter was purportedly signed by an attorney practicing in respondent’s law firm. With regard to this title letter, the commissioner found:

“(1) The said title opinion was not, in fact, issued on January 14, 1971, but at least 6 weeks or more thereafter.
“(2) As of the date of the said title opinion, neither Respondent’s title nor the bank’s mortgage had been recorded and they were, in fact, not recorded until some 6 weeks after the date of said title opinion.
“(3) Even after delayed recordation, the title opinion was in error, as the bank had a third and not a second mortgage as recited in the said opinion.
“(4) No pretense of any title examination had been made, on the basis of which said title opinion letter and certification of examination was issued.
“(5) The attorney, allegedly signing said title opinion letter, was unaware of said title opinion. The matter had never been discussed with him and his signature was affixed by his secretary, directly or indirectly as a result of the instructions or orders of Respondent.”

The respondent’s only defense is his ignorance of how to handle real estate transactions. This is, of course, no defense at all. See Disciplinary Rule 6-101:

“DR 6-101 Failing to Act Competently.
“ (A) A lawyer shall not:
“(1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.”

The commissioner found further irregularities in this transaction. The signature of David L. Ray as Notary Public before whom the collateral mortgage was allegedly passed was forged. Almost a year after the loan was passed, the respondent finally furnished the bank with a collateral mortgage note, also containing the forged signature of David L. Ray as Notary Public, despite the fact that Ray refused to paraph the note and despite respondent’s knowledge that Ray’s signature was forged on the collateral mortgage with which this note was being identified.

The commissioner concluded:

“Respondent promised the bank a Second Morgage, as security for its $11,000 loan to him. He did fail to mention deliberately or through total ingorance that a mortgage was also to be given to vendor, placing the bank in a position of Third Mortgage Holder. The Respondent failed to make any reasonable effort to furnish to the bank the Collateral Mortgage Note, copy of recorded Collateral Mortgage or Title Letter, as promised, until some months after the loan was made and after the date of execution of the Sale on December 30. The signature of the Notary on the Collateral Mortgage is forged. Whether this was done by Respondent or by one of his employees is unknown, but the transaction was handled by Respondent, the closing was in his office, the transaction was for his personal account and he alone is responsible to his lender, the bank, for the adequacy and propriety of the documentation furnished in accordance with his commitment. It appears there was no Collateral Mortgage Note at all executed until approximately one year after the transaction, and no such note was furnished to the bank until well after it was prejudiced by the absence of such for the purpose of suit and foreclosure. Respondent failed to record or to secure the prompt recording of his acquisition of the property and of the Collateral Mortgage until nearly two months after the date these transactions at least partially occurred on December 30, 1970.”

The third specification is the most serious. This grew out of respondent’s divorce from his first wife. In June of 1971 the respondent obtained a divorce from his wife in the First Judicial District Court for the County of Hancock, State of Mississippi. This divorce was based on a consent and waiver to divorce, allegedly signed by respondent’s wife, which respondent presented to the Mississippi court. In fact, his wife had never signed or given authority to anyone else to sign for her such a waiver and consent. Furthermore, the signature of Lannis A. Kircus as Notary Public on, the waiver and consent form was a forgery.

In defense, respondent asserts that his wife gave him verbal authority to sign the consent and waiver form for her. The Mississippi judge who granted the divorce testified that such verbal authority would be without effect and that he would not grant a divorce based on such a verbal authorization. However, pretermitting the issue of the effectiveness of such verbal authorization (which was denied anyway) we agree with the commissioner’s statement that:

“It is almost inconceivable that any attorney, as Respondent, would undertake to claim verbal authority of the defendant to sign the defendant’s name to a waiver of service and delays.”

Additionally, to meet Mississippi’s one year residency requirement for divorce, the respondent swore out a false affidavit that he was and had been a bona fide resident of Mississippi for one year preceding the divorce. Since the divorce decree was rendered on the basis of oral testimony, we can only assume that respondent similarly gave false testimony in court.

The evidence shows that respondent was not in fact a bona fide resident of Mississippi for this period. He transacted his business from his Baton Rouge office. He maintained an apartment in Baton Rouge. He was registered to vote, in Baton Rouge. He paid no Mississippi taxes and never met his Mississippi neighbors. He allegedly lived in a house being rebuilt after a hurricane. None of his partners, associates or secretaries were aware of this Mississippi residence. In the words of the commissioner, “the most that can be said is that respondent paid rent on a house never fully completed or furnished, for a period of one year, and was seen there on perhaps three occasions by one client.” Also noteworthy is the fact that he paid the rent for May and June in advance, was divorced on June 17, remarried on June 19, never to return to his Mississippi “residence.”

The report of the commissioner in this case is careful, detailed and accurate. Under his directions, the record reflects the hearings to have been models of propriety. The commissioner’s conclusions are amply supported in each instance by the record. Little serious argument can be made with the correctness of his factual findings.

Respondent argues in brief that, since his conduct occurred in substance prior to September 1, 1971, which was the effective date of Article XV of the Articles of Incorporation of the Louisiana State Bar Association, he cannot be disciplined or disbarred in proceedings brought under this article, as the article makes substantive changes in the law. This contention is without merit. Article XV in no way attempts to define the substantive requirements for professional conduct which would subject a member of the bar to disciplinary proceedings. Article XV merely provides the procedure to be used in disciplinary proceedings. This section therefore changed no substantive rights of respondent; it only provided a better procedural method to handle disciplinary actions.

We are impressed with the obvious disregard by respondent of established ethical standards. The successive acts of the respondent indicate that as time went on the extent and seriousness of respondent’s ethical misconduct increased. We observe here not a single isolated act, but a continuing pattern over a period of two years, progressing to the point of sufficient gravity as to evidence a lack of moral fitness for the practice of law. La. State Bar Assn. v. Powell, 250 La. 313, 195 So.2d 280 (1967).

It is appropriate to repeat at this point that a disbarment proceeding is not so much for the punishment of the attorney as it is for the preservation of the integrity of the courts and the salutary effect it has upon other members of the bar. La. State Bar Assn. v. Jacques, 260 La. 803, 257 So.2d 413 (1972); La. State Bar Assn. v. Ruiz, 261 La. 409, 259 So.2d 895 (1972). Respondent has violated the most basic and cherished principle of the profession :

“EC 9-6. Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.”

For the reasons assigned, it is ordered, adjudged and decreed that the name of Jack P. F. Gremillion, Jr., respondent herein, be stricken from the Roll of Attorneys and his license to practice law in the State of Louisiana be revoked and the same is hereby canceled.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Oscar Lee BURGY.
    No. 56331.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Samuel V. Prunty, Jr., Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

After trial by jury, defendant was convicted of burglarizing a Railway Express Agency warehouse in Shreveport, Louisiana, a violation of LSA-R.S. 14:62. The trial judge sentenced him to imprisonment for a term of four years. On appeal to this Court, defendant relies upon one assignment of error for reversal of his conviction and sentence.

The defense alleges in this Court that the trial judge erred in allowing the State to fingerprint the defendant in the presence of the jury, because it was prejudicial and inflammatory.

The background of this complaint is that the police found fingerprints on an opened cardboard box in the warehouse that was burglarized. The manager testified that Railway Express Agency employees were the only persons who normally had access to these boxes and touched them.

When the police attempted to present evidence that the fingerprint found at the scene of the crime was defendant’s, the officers had difficulty identifying an alleged genuine fingerprint in police files. The officer whose name appeared on the fingerprint card testified that he could not remember taking defendant’s fingerprints. On the request of the State, over defense objection, a fingerprint of defendant was taken in the courtroom and compared by the expert witness. In the testimony, the fingerprints taken at the scene of the crime were identified, as those of the defendant.

The defense objection made in the lower court and ruled upon by the trial judge was this:

“Your Honor, I object to it on the grounds that it is self-incriminating; that it would tend to be self-incriminating, rather; that the witness is not required to testify against himself. He is not required to take the stand.”

The trial judge correctly overruled this objection. It is well established that the Fifth Amendment restriction against self-incrimination applies only to testimonial evidence. Identifying physical characteristics, such as bodily measurements and fingerprints, are outside the protection afforded by the privilege against self-incrimination. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); State v. Thompson, 256 La. 934, 240 So.2d 712 (1970); State v. Tarrance, 252 La. 396, 211 So.2d 304 (1968).

In this Court, as we have noted, the defendant advances an objection not raised in the lower court, that taking of the fingerprints during' the trial in the presence of the jury was prejudicial and inflammatory. Since this objection was not made in the lower court or ruled upon by the trial judge, it cannot be availed of on appeal. See LSA-C.Cr.P. Art. 841; State v. Preece, 264 La. 156, 270 So.2d 850 (1972).

In brief, defendant also raises the issue of the sufficiency of the evidence to convict him of the crime with which he is charged. However, this objection must be raised on a motion for a directed verdict or for a new trial, neither of which were made in the present case. If the objection were properly before the Court, there is some evidence upon which defendant could be convicted. We have repeatedly held that a motion for a directed verdict is proper only when there is no evidence of an essential element of the charged crime. State v. Foret, La., 315 So.2d 278 (1975) State v. Patterson, La., 295 So.2d 792 (1974); State v. Douglas, La., 278 So.2d 485 (1973). Here, there was some evidence of the essential elements of the crime, that something of value was stolen, and some evidence linking the defendant to the crime; the questions of weight to be given the evidence and guilt or innocence are questions for the jury to decide and present nothing for our review.

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