author: MARCUS, Justice.

text:
    STATE of Louisiana v. James CASS.
    No. 60468.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied April 6, 1978.

      Irving M. Greenberg, Jack H. Kaplan, Gamm, Greenberg & Kaplan, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Eugene W. Bryson, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

James Cass was indicted by the grand jury for the Parish of Caddo for the crime of armed robbery in violation of La. R.S. 14:64. After trial by jury, defendant was found guilty as charged and was sentenced to serve thirty-three years at hard labor without benefit of parole, probation or suspension of sentence, which sentence was to run consecutively with any other sentence which defendant was to serve. On appeal, he relies on fifteen assignments of error for reversal of his conviction and sentence. We will follow the order of assignments of error as listed in the record rather than as set forth in defendant’s brief to this court.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying his motion to quash the petit jury venire. He argues that the drawing of the petit jury venire from a general venire selected from the voter registration rolls and the improper excusal of members of the petit jury venire by the trial judge resulted in a jury venire in which persons of the lower socio-economic level of the parish had been systematically excluded.

At the hearing on the motion to quash, defendant presented only the testimony of James H. Greene, a member of the Caddo Sheriff’s Department who supervised the service of jury subpoenas. His testimony related only to the manner in which the subpoenas were served. He stated that his office had nothing to do with the selection of the general venire from which the petit jury venire was drawn.

This court has approved the selection of general venires from voter registration rolls absent a showing of discrimination against a particular class of persons. State v. Daigle, 344 So.2d 1380 (La.1977). In the instant case, the general venire was selected at random and by lot from the voter registration rolls of the parish. Hence, there is no infirmity in the petit jury venire drawn from the general venire on this account. Furthermore, La.Code Crim.P. art. 783 authorizes the court to excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case if jury service would result in “undue hardship or extreme inconvenience.” We have held that a defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 258 La. 801, 248 So.2d 295 (1971). Moreover, the trial court is vested with broad discretion in excusing prospective jurors for undue hardship. State v. Ivy, 307 So.2d 587 (La.1975). This discretion to release prospective jurors in advance of voir dire examination is not to be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Sheppard, supra; State v. Gomez, 319 So.2d 424 (La.1975). In the instant case, defendant makes no such showing; he merely makes the bare allegation that the trial judge abused his discretion in excusing prospective jurors prior to trial.

To support a challenge made to the composition of a jury venire, defendant must demonstrate that the state has not complied with statutory procedures for the selection of the venire or that there has been a systematic discrimination affecting a class of persons in the selection of the jury panel. State v. Taylor, 347 So.2d 172 (La.1977). No such showing has been made here. Hence, the trial judge properly denied defendant’s motion to quash the petit jury venire.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in permitting the introduction of evidence which established that during the course of the armed robbery for which defendant was being tried, defendant raped the girlfriend of the victim of the armed robbery. He argues that the evidence of the other crime was inadmissible and alternatively, if it was admissible, its prejudicial effect on the jury outweighed its probative value.

La.R.S. 15:447 and 448 provide:

La.R.S. 15:447
Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.
La.R.S. 15:448
To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

A review of the evidence presented at trial reveals that the rape of the robbery victim’s girlfriend, which was committed during the course of the armed robbery, was inseparably intertwined with the armed robbery in time and place. As such, it was an immediate concomitant of it and formed in conjunction with it one continuous transaction. Therefore, evidence of the rape was admissible as part of the res gestae. State v. McCoy, 337 So.2d 192 (La.1976); State v. Curry, 325 So.2d 598 (La.1976); State v. Robinson, 302 So.2d 270 (La.1974); State v. Matthews, 292 So.2d 226 (La.1974). Moreover, evidence of the rape was highly relevant to establish the identity of the perpetrator of the armed robbery, a crucial issue in the case, and to prove that the robbery was committed by force and intimidation, an essential element of the crime of armed robbery. Hence, the probative value of the evidence clearly outweighed any prejudicial effect.

Assignment of Error No. 2 has no merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in overruling his objection to cross-examination by the state of defendant concerning a prior conviction for the crime of escape. He argues that evidence of his prior conviction for escaping from a prison where he was being held pending trial on the instant charge as well as other criminal charges was improperly offered by the state to prove that he was guilty of the instant crime.

At trial, defendant testified on his own behalf denying any involvement in the armed robbery for which he was on trial. On cross-examination, he was questioned by the district attorney as to whether he had ever been convicted of any offense which he denied. After repeated admonitions by the prosecutor to “think again,” defendant admitted that he had been convicted of “fighting” but denied having been convicted of any other offense. Thereupon, the prosecutor asked him if he had been convicted of escape to which he replied in the affirmative. Defense counsel then objected and requested that the jury be removed. Outside of the presence of the jury, defense counsel voiced his objection to any reference to the prior escape conviction but failed to state any basis for his objection at that time.

Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless defendant has made known to the court his objection and the grounds therefor. It is well settled that defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to rule on it and to prevent or to cure the error. An objection stating no basis presents nothing for this court to review. State v. Lewis, 353 So.2d 703 (La.1977); State v. Burnette, 337 So.2d 1096 (La.1976); State v. Sosa, 328 So.2d 889 (La.1976).

In any event, La.R.S. 15:495 provides:

Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; 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.

In the instant case, evidence of defendant’s prior conviction for escape was not offered, as alleged by defendant, to prove defendant’s guilt of the instant crime. Rather, evidence of his prior conviction was properly offered by the state for the purpose of impeaching his credibility pursuant to the above provision. We therefore conclude that the trial judge did not err in overruling defendant’s objection to the cross-examination of defendant by the state as to his prior conviction.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial judge erred in permitting an expert witness to express his opinion in response to a hypothetical question as to when a latent palm-print had been placed on the car involved in the armed robbery where no “control test” had been conducted to determine when the latent print had been placed on the vehicle.

At trial, James Hood, the supervisor of the records and identification division of the Caddo Parish Sheriff’s Department, was qualified without objection as an expert in the field of fingerprinting. He testified that he compared a latent palmprint which had been lifted from the car involved in the armed robbery shortly after the crime was committed with defendant’s prints and found the prints to be identical. The expert witness was then posed a hypothetical question based on facts presented in- evidence that on Saturday afternoon a high school boy cleaned and washed his car in preparation for a date that evening. Later that night, a latent palmprint was lifted from the top of the trunk at the exact spot where an identification officer was directed to search for latent prints of a suspect who had earlier committed a crime involving the vehicle. Based on the foregoing facts, Hood was asked when in his opinion the latent palmprint would have been placed on the trunk of the car. Defense counsel objected to the hypothetical question on the ground that, in the absence of a control test having been conducted to determine how long the print had been on the vehicle, no opinion could be expressed by the witnesses as to when the print had been placed on the car. The trial judge overruled the objection but permitted defendant, on his request, to question the witness with reference to a control test. At the conclusion of this line of questioning, defendant reurged his objection to the hypothetical question but his objection was again overruled. Hood then responded that, because of its excellent quality, the latent palmprint lifted from the vehicle would have been placed on the car after the car had been washed on the day on which the crime was committed.

An opinion of an expert witness on facts not within his personal knowledge may be elicited by propounding a hypothetical question which is in proper form, provided that the hypothesis assumes only facts which the evidence proves or tends to prove. State v. Schouest, 351 So.2d 462 (La.1977). If the record supports the facts assumed, the hypothetical question is proper.

In the instant case, the evidence presented at trial revealed that Danny Goode, the victim of the crime, on the afternoon of the robbery had cleaned and washed his car in anticipation of his date that night. During the course of the armed robbery, the perpetrator of the crime locked Goode in the trunk of the car. A latent palmprint of very high quality was lifted from the top of the trunk of the car later that night after an identification officer was directed to the spot where defendant had placed his hand on the trunk of the car in locking Goode in the trunk. The record supported the facts assumed in the hypothetical question; therefore, the question was proper and the expert witness could express his opinion as to when the latent palmprint had been placed on the vehicle. The fact that a control test had not been conducted by the identification officer to determine how long the latent print had been on the vehicle addresses itself to the weight of the witness’ testimony rather than its admissibility. Hence, the trial judge correctly overruled defendant’s objections and permitted the expert witness to express his opinion in response to the hypothetical question.

Assignment of Error No. 4 is without merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 7

In these assignments of error, defendant contends that the trial judge erred in ruling, over defense objection, that the in-court identifications of the eyewitnesses to the armed robbery were admissible. He argues that the in-court identifications were inadmissible in that they were tainted by impermissibly suggestive out-of-court identifications made by the witnesses. Pri- or to trial, defendant moved to suppress the out-of-court identifications but his motion was denied.

Danny Goode, victim of the armed robbery, and his date testified that on September 14, 1974, at approximately 9:30 p. m., while they were parked in Goode’s car, defendant tapped on the window and requested their assistance in starting his stalled vehicle. Goode agreed and defendant got into the car. After travelling a short distance without any sight of a disabled vehicle, defendant pointed a gun at Goode’s head and shortly thereafter instructed him to stop the car. He then ordered Goode to hand over his wallet from which he removed twenty-five dollars. Defendant then locked Goode in the trunk of the car and ordered his date to partially disrobe. At the girl’s insistence, defendant then released Goode from the trunk and told the couple to get into the back seat of the car. After discovering that there was a tape player in the car and ripping it out, defendant ordered Goode at gunpoint to partially disrobe and to perform various sexual acts with his date. Upon seeing the couple merely feigning compliance with his order, defendant grew angry. After instructing Goode to get out of the car, he got into the backseat with Goode’s date and forcibly raped her. The couple was then ordered to get into the front seat of the car and to drive up the road. Meanwhile defendant, who was in the back seat of the car, removed his T-shirt, ripped a speaker from the rear of the car, and wrapped it along with the tape player in his T-shirt. Warning the couple not to look back, he alighted from the car onto a road partially illuminated from the lighting of a nearby parking lot and fled. The witnesses testified that they could clearly see defendant during the course of the crime.

A few months later, ten photographs were displayed to the witnesses. Although eight of the ten photographs were mugshots while the remaining two, one of which was defendant’s, were not, all of the photographs depicted men similar in appearance to defendant. Goode positively identified defendant at the photographic lineup. However, his date, who testified that she viewed a photographic lineup on two occasions, was only able on each occasion to choose four photographs of men who resembled the perpetrator of the crime. Defendant’s picture was among the four chosen. On cross-examination, she admitted that after viewing the second photographic lineup and choosing the same four photographs which she had chosen at the first lineup, a police officer pointed to defendant’s picture and informed her that he was the man who had been “picked up” in connection with the crime, to which she replied that she had thought that he was the perpetrator of the crime.

After a review of the record, we find no showing that the out-of-court identifications made by the witnesses were im-permissibly suggestive or conducive to mistaken identification so as to deny defendant due process of law. The fact that two of the ten photographs, one of which was defendant’s, were not mugshots does not render the out-of-court identifications imper-missibly suggestive where the photographs depicted men similar in appearance to defendant. Nor do we find that the information revealed to one of the eyewitnesses of the crime that defendant was the suspect in the case renders her out-of-court identification impermissibly suggestive in view of the fact that the information was not disclosed to her until after she had made her out-of-court identification. Moreover, the witness’ inability to positively identify defendant at the pretrial photographic lineups does not render her later in-court identification inadmissible, for the failure to positively identify a suspect at a pretrial lineup is a matter which addresses itself to the weight of a witness’ testimony rather than its admissibility. State v. Batiste, 318 So.2d 27 (La.1975).

But, even if we assume arguendo that the out-of-court identifications were tainted, if the in-court identifications had a source independent of the out-of-court identifications, then the in-court identifications do not violate defendant’s due process rights. State v. Anthony, 332 So.2d 214 (La.1976); State v. Peevy, 321 So.2d 324 (La.1975); State v. Payton, 294 So.2d 211 (La.1974); State v. Moseley, 284 So.2d 749 (La.1973); State v. Newman, 283 So.2d 756 (La.1973); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971).

In the instant case, both witnesses testified that, during the course of the crime, they could clearly see defendant. Defendant was viewed at close range by both witnesses for some period of time and each witness was able to positively identify him at trial. In view of the totality of the circumstances, we are convinced that the in-court identifications were based independently upon the observations of the witnesses at the time of the crime. Therefore, since the in-court identifications had a source independent of the out-of-court identifications, they did not violate defendant’s due process rights.

For the above reasons, these assignments of error lack substance.

ASSIGNMENTS OF ERROR NOS. 6 AND 12

In Assignment of Error No. 6, defendant contends that the trial judge erred in denying his pretrial motion to suppress the out-of-court identifications without affording defendant a hearing on the motion.

The record reflects that on October 27, 1975, a hearing was conducted during which defendant’s motion to suppress the out-of-court identifications was argued along with several other motions filed on his behalf. Defense counsel argued at the hearing that the out-of-court identifications should have been suppressed since defendant was not represented by counsel at the photographic lineups. The motion to suppress was denied. Since the record fully supports the fact that defendant was afforded a hearing on his motion to suppress the out-of-court identifications, his contention is without merit.

In Assignment of Error No. 12, defendant contends that the trial judge erred in denying his motion to suppress the out-of-court identifications in which he alleged, in addition to the grounds previously considered in Assignments of Error Nos. 5 and 7, that the out-of-court identifications should be suppressed since he was not afforded counsel at the pre-indictment photographic lineups.

A criminal defendant does not have a constitutional right to have counsel present at photographic displays conducted by the state for the purpose of attempting to secure an identification of the perpetrator of a crime. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); State v. Matthews, 322 So.2d 159 (La.1975). Hence, the trial judge properly denied defendant’s motion to suppress on this ground.

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 8 AND 9

In these assignments of error, defendant contends that the trial judge erred in overruling his objections to the introduction into evidence by the state of certain photographs. He argues that the state failed to lay a proper foundation for their introduction into evidence.

It is a well-settled rule .that a photograph need not be identified by the person who took it to be admissible in evidence. State v. Vincent, 338 So.2d 1376 (La.1976); State v. Freetime, 334 So.2d 207 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975); State v. Browning, 290 So.2d 322 (La.1974). Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy and when they tend to shed light upon the matter before the court. State v. Freetime, supra ; State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). Sufficiency of identification of a photograph for purpose of admissibility thereof into evidence rests largely within the discretion of the trial judge. State v. Freetime, supra; State v. Fox, 251 La. 464, 205 So.2d 42 (1967).

In Assignment of Error No. 8, defendant challenges the introduction into evidence of two photographs which depicted enlargements of the latent palmprint lifted from the vehicle involved in the crime and of a known print taken from defendant. At trial, Don Bennett, a member of the Caddo Parish Sheriff’s Office on the date that the crime was committed, testified that he lifted the latent palmprint from the vehicle involved in the armed robbery shortly after the crime was committed and later compared it with a known print of defendant which he had taken from him. Bennett stated that the two prints were identical. He was then asked to examine the photographs and to state whether he recognized them. He replied that they depicted enlargements of the prints which he had previously taken from the vehicle and defendant. Admitting that he had not made the enlargements himself, he testified that they were made by the Shreveport Police Department. Over defense objection, the photographs were admitted into evidence. Subsequently, James Hood, formerly of the Shreveport Police Department, testified that he had made the enlargements of the prints.

There is no merit to defendant’s contention. Bennett testified that the photographs accurately depicted the prints which he had taken from the vehicle and defendant. Thus, the state laid a proper foundation for their introduction into evidence. Moreover, the photographer who made the enlargements later verified them. Hence, the trial judge correctly allowed the photographs in evidence.

In Assignment of Error No. 9, defendant challenges the admission in evidence of a photograph taken of him.

At trial, defendant testified in his own defense. On cross-examination, he denied that he had ever worn his hair parted down the middle, the hairstyle allegedly worn by the perpetrator of the crime as described by the eyewitnesses to the police. He was then shown a photograph and admitted that the picture was of him. The photograph depicted defendant wearing his hair parted down the middle. Over defense objection, the photograph was admitted in evidence.

We find that the trial judge properly permitted the introduction of defendant’s photograph in evidence. Prior to its introduction, defendant admitted that it accurately depicted him. The state thereby laid a proper foundation for its admission in evidence.

For the above reasons, these assignments of error lack substance.

ASSIGNMENT OF ERROR NO. 10

Both the victim and his date testified to the fact that the victim had been placed in the trunk of the car by defendant during the course of the crime. Thereafter, a fingerprint expert testified that the victim’s date related to him that she recalled a particular place where defendant had touched the vehicle and directed him to that spot. Defendant’s objection to the testimony on the ground of hearsay was overruled by the trial judge. The expert witness continued that, as a result of this information, he processed the car for latent prints at that particular place, which was on the left side of the trunk of the vehicle, and was able to lift a latent print which was later positively matched with defendant’s known print.

A well-known rule is that evidence is non-hearsay which is offered not to prove the truth of the facts recited, but to prove that the utterance occurred. State v. Williams, 341 So.2d 370 (La.1976); State v. Monk, 315 So.2d 727 (La.1975); State v. White, 301 So.2d 321 (La.1974). The testimony of the fingerprint expert was not hearsay because, although it related the statement of a third person, it was offered to prove that the utterance occurred, thereby prompting the expert to process a particular place on the vehicle for latent prints, and not to prove the truth of the statement of the third person, i. e., that defendant had in fact touched the vehicle at that spot. Hence, the trial judge correctly overruled defendant’s objection.

Assignment of Error No. 10 is without merit.

ASSIGNMENTS OF ERROR NOS. 11 AND 13

In Assignment of Error No. 11, defendant complains that, in response to his motion to disclose favorable evidence, the state failed to inform him that Goode allegedly identified an individual named Thornell as the perpetrator of the crime. In Assignment of Error No. 13, he further argues that he was prejudiced by the state’s failure to disclose that Goode’s girlfriend had in fact positively identified him at the photographic lineups as the perpetrator of the crime.

In his motion to disclose favorable evidence, defendant requested the names of all persons whom the police had suspected of committing the instant crime, as well as information in the possession of police authorities which led them to suspect these individuals. Additionally, he sought information as to whether either witness to the crime had been unable to identify him. In response to these requests, the state acknowledged that persons other than defendant who fit the general description of the perpetrator of the crime as given by the witnesses had been interviewed and detained temporarily for investigative purposes but were released after further investigation established that they were not involved in the crime. However, the state refused to disclose the identities of these individuals. The state also responded that Goode’s girlfriend was only able at the photographic lineups conducted prior to trial to select four photographs of men who resembled the armed robber, one of which depicted defendant.

At trial on cross-examination by defense counsel, Goode admitted that approximately three to four weeks after the crime occurred he notified the police that he had seen a man named Thornell who resembled the perpetrator of the offense. However, he testified that he later determined that in fact Thornell was not the individual who had committed the crime.

Defendant’s contention that he was prejudiced by the state’s failure to disclose that Goode had reported Thornell to the police as a possible suspect in the case is without merit. It is well settled that the prosecution may not suppress evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material to either guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Williams, 349 So.2d 286 (La.1977); State v. Robinson, 342 So.2d 183 (La.1977). However, false leads followed out by police certainly are not evidence tending to negate the guilt of defendant. State v. Linkletter, 345 So.2d 452 (La.1977); State v. Nix, 327 So.2d 301 (La.1975). Hence, the state was under no duty to disclose to defendant the name of the suspect. Moreover, defendant cannot claim to have been prejudiced by the state’s failure to disclose the suspect’s identity since this information was apparently known by defendant prior to trial since he used it during trial to attack Goode’s identification of him as the perpetrator of the crime.

With respect to defendant’s contention that the state erred in failing to disclose to him that Goode’s girlfriend had in fact identified him at the photographic lineups, it must likewise be rejected. This evidence was not exculpatory evidence required to be disclosed by the state under Brady v. Maryland, supra. Moreover, the evidence presented at trial revealed that the witness never positively identified defendant at the photographic lineups but rather only chose four photographs of men resembling the perpetrator of the crime, one of which was of defendant. This information had been properly disclosed by the state to defendant in response to this motion to disclose favorable evidence.

For the above reasons, these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant assigns as error the trial judge’s denial of his motion for a new trial on the ground that the verdict is contrary to the law and the evidence. It is well settled that such an allegation presents nothing for this court’s appellate review. State v. Williams, 343 So.2d 1026 (La.1977); State v. Jack, 332 So.2d 464 (La.1976); State v. Bartley, 329 So.2d 431 (La.1976).

In brief to this court, defendant contends that the trial judge erred in denying his motion for a new trial on the ground that there was no evidence to support his conviction. A new basis for an objection cannot be raised for the first time on appeal. State v. O’Blanc, 346 So.2d 686 (La.1977); State v. Williams, supra; State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975). Nevertheless, we have reviewed the record and find substantial evidence to support defendant’s conviction.

Assignment of Error No. 14 lacks merit.

DECREE

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

      . Defendant has neither briefed nor argued Assignment of Error No. 15. We therefore consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


source: Caselaw Access Project

author: TATE, Justice. CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. James Huntley FORREST, Appellant.
    No. 60314.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.
    Dissenting Opinion April 11, 1978.

      James E. Boren, Boren & Holthaus, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., Joseph H. Simpson, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of first degree murder, La.R.S. 14:30 (1973). He appeals that conviction and the ensuing death sentence. We affirm the conviction, but vacate the sentence and remand the case to the trial court for resentencing.

The defendant’s appeal presents fourteen assignments of error. The most serious issue is raised by Assignments 1 and 10. By them, it is argued that, under the statutes applicable at the time of the 1976 offense, the indictment charged (and the evidence at most proved) a non-capital second-degree murder, La.R.S. 14:30.1 (1975), not a capital-sentence first-degree murder, La.R.S. 14:30 (1973).

Assignments 1 and 10

The basis for this argument is that the state’s case, if accepted, proves that the defendant Forrest offered Daniel Bezar $500 to kill Forrest’s brother-in-law, Harvey Wren, and Bezar did so.

The 1973 first-degree murder statute, providing for the death penalty upon conviction, under the present facts was applicable only when “the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder.” La.R.S. 14:30(5) (1973). Thus, for whatever reason, the legislature had determined that the actual killer, if hired, was subject to the death penalty, but not the one who hired him.

The state’s theory was that, nevertheless, the defendant Forrest was guilty as a principal tó Bezar’s first-degree murder, La.R.S. 14:24, because he aided and abetted in its commission. The defendant points out, however, that the legislature had specifically determined that the offeree, not the of-feror, committed first-degree murder.

Under accepted principles of interpretation of criminal statutes relied upon by the defendant, one guilty of legislatively excluded conduct cannot be held to be an accomplice or to have aided and abetted (as a principal) the offender who commits the crime by conduct which is within its definition. The “general rule recognizing guilt by incitement or abetment” is subject to several exceptions, one of which is where “the legislative body must have contemplated two parties and yet provided a penalty for only one.” Perkins, Criminal Law 683 (2d ed. 1969). “One may be an accomplice in a crime which, by its definition, he could not commit personally. However, one is not an accomplice in a crime if . (b) the offense is defined so as to make his conduct inevitably incident thereto * LaFave and Scott, Criminal Law 513 (see also 521-22) 1972 (Italics ours). See also Model Penal Code, Section 2.06(6) (1962).

Whatever technical merit there might be to the defendant’s argument — if his sole connection with the offense had been to offer money to Bezar to commit the murder — , in the present instance the state’s evidence shows that the defendant Forrest actually assisted in the commission of the murder by driving Bezar and the victim to the murder scene and by sliding the murder weapon (a shotgun) over to Bezar for his use in the murder. That is, this conduct of his in assisting in the murder was not conduct (offering to pay for the killing) excluded by the legislature as constituting the offense.

While Bezar himself (having been offered money to kill the victim) was guilty of first-degree murder as statutorily defined, La.R.S. 14:30(5) (1973), the defendant Forrest was also guilty as a principal in that crime, La.R.S. 14:24, in that he aided and abetted at the scene in the commission of this first-degree murder committed by Bezar. He is not insulated from prosecution for his direct participation in the first-degree murder by the circumstance that, except for his direct participation, he may. have (as offeror, excluded from first-degree guilt) been subject to prosecution only as a principal in a non-capital second-degree murder, La.R.S. 14:30.1(1) (1975).

We find no merit to these assignments.

Assignments 5 and 6

Two other assignments (5 and 6) likewise present a serious issue. Over the defendant’s objection, the state asked questions deliberately intended to bring before the jury the defendant Forrest’s callous attitude towards his deceased first wife. In brief to this court, the state erroneously seeks to justify their admission as part of the res gestae.

Ten days before Wren’s murder, he and his wife had purchased a $15,000 life insurance policy on Wren’s life. The day before the murder, in a totally unrelated transaction, the defendant Forrest purchased some automobile liability insurance from the same agency.

The state had called Mary Ann Stewart, the wife of the insurance salesman, to testify to the purchase of the life insurance policy by Agnes Wren and her husband. Additionally, however, the prosecution elicited testimony about the subsequent visit to the insurance agency by the defendant Forrest to purchase the policy of automobile liability insurance for himself.

In the midst of this wholly irrelevant inquiry, over objection, in reply to a state question the witness testified that she asked Forrest whether he wished liability coverage for his wife as well, and that he responded: “[W]ell, she don’t drive. She’s six foot under.” According to the witness, Forrest then laughed. The next witness, Gladys McKinney (Mrs. Stewart’s sister), testified to the same effect, after the trial court overruled the defendant’s objection to that testimony.

Unquestionably, the trial judge erred in overruling the defendant’s objections. The only relevant testimony these witnesses had to give concerned defendant’s knowledge about the prior visit of his sister and her husband to buy a policy on the latter’s life. The entire line of testimony thereafter was irrelevant and should have been excluded.

Nevertheless, the fact that the testimony was irrelevant does not necessarily mean that it was prejudicial to the defendant. The defendant claims that this testimony amounts to character evidence and was therefore inadmissible in the state’s case-in-chief. This begs the question of prejudice.

At worst, the testimony tends to show that the defendant was not fond of his wife, although it might also have been taken by the jury as an expression of a bizarre, black humor. Neither inference advances the case for proving that the defendant was the sort of person who would commit this murder or any crime, and that is the crucial issue.

Thus, even though the testimony was irrelevant, it was not prejudicial. Admission of it was erroneous, but not reversible.

Assignments 4, 9, 12, and IS

The state’s evidence tended to show that, after the killing, Forrest had advised Bezar and the victim’s wife (Agnes) not to take a lie detector test. The defendant complains that any mention by the state of a failure to take a lie detector test is irremediably prejudicial, citing State v. Refuge, 270 So.2d 842 (La.1972).

We find no merit to these assignments.

In Refuge, we summarized the reasons why neither lie detector tests, nor reference to witnesses taking or refusing to take one, are admissible under current jurisprudential theory. The reasons involve the judicial fear of the unreliability of such tests and their assumed lack of probative value; as well as the prejudicial effect upon a trier of fact, which might give undue weight to the results of such tests or to an inference of a witness’s trial veracity or lack of it because he took or failed to take one.

In the present case, the state’s evidence showed a conspiracy to kill Agnes’ husband by Bezar, Agnes and the defendant Forrest. The admonition to his co-conspirators by Forrest for them not to take a lie detector test was one of several acts in furtherance of that conspiracy which the state attributed to him.

The significance of the evidence was not that the defendant was unwilling to take a lie detector test, but that he advised the others not to submit to one. The assignments all relate to questions as to whether he had advised Agnes and Bezar not to take lie detector tests. No questions were asked as to whether, after the crime, they or the defendant Forrest had taken or refused to take one.

No attempt was made by the questions or evidence to infer the present truthfulness or not of the trial testimony of the three (Forrest, Bezar, and Agnes). Its sole purport was to show that, as part of the conspiracy, after the killing Forrest had advised the other two not to take lie detector tests.

The concerns and values expressed by the rule reiterated by Refuge are not involved by the questions and testimony here educed. The admission of this testimony in proof of the conspiracy was not erroneous. It did not offend the rationale or purpose of the Refuge rule, which prohibits reference to lie detector tests insofar as offered or referred to for purposes of bolstering or weakening trial testimony of witnesses or their pre-trial utterances.

Other Assignments

Except for Assignment 15 (relating to the constitutional invalidity of the death sentence received by Forrest), the other assignments require little discussion:

Assignment 3: No abuse of discretion is shown by the trial court’s denial of defendant’s motion to appoint an expert to evaluate Bezar’s mental capacity. There were no allegations of insanity. The evi-dentiary hearing indicated a person of low intelligence, but not of incompetence as a witness. Assignments 7 and 8: The black- and-white photographs objected to are “unpleasant . . . [but] not especially gruesome.” State v. Smith, 327 So.2d 355, 361 (La.1975). They have only slight probative effect, but no reversible error is shown by their admission. Assignment 11: The prosecutor’s suggestion by his cross-examination of defendant that the latter’s memory was sharper in some details than in others does not appear to have exceeded proper limits. Assignment 14: Inasmuch as there was some evidence of defendant’s guilt of first-degree murder, the motion for a new trial was correctly denied.

By Assignment 15, the defendant correctly urges that the death sentence imposed upon him must be vacated. The defendant’s conviction is based upon La.R.S. 14:30 (1973). The mandatory death penalty thereby provided was declared unconstitutional. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001 (1976). The case must therefore be remanded for resentencing to the most serious penalty at the time for the next lesser included offense, second-degree murder. State v. Jenkins, 340 So.2d 157 (La.1976). La.R.S. 14:30.1 (1975) sets forth the penalty for that crime as life imprisonment without benefit of parole, probation, or suspension of sentence for a period of forty years.

Decree

Accordingly, we affirm the conviction, but we vacate the death sentence. We remand this case to the district court for re-sentencing as above set forth.

AFFIRMED, BUT REMANDED FOR RE-SENTENCING.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I am of the opinion that there is merit in defendant’s assignment of errors Nos. 1 and 10. Under R.S. 14:30(5) only the offeree, and not the offeror, is exposed to conviction for the capital offense. And I do not find defendant a principal to the offeree’s commission of first degree murder.

Additionally, I have serious reservations concerning the majority’s finding non-meritorious assignments Nos. 5 and 6.

For these reasons, I dissent.

      . In brief, we are informed that the defendant’s wife had died under mysterious circumstances while they were living in Indiana. The record does not so reveal, nor is it intimated, that the jury knew of this fact. If it had, the prejudice caused by this irrelevant inquiry might well have required reversal.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Gordon NOVEL.
    No. 60510.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.

      William A. Porteous, III, J. Philip Stein, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., William F. Wessel, Sp. Prosecutor, New Orleans, for plaintiff-respondent.
   SUMMERS, Justice.

By a bill of information filed in May of 1976 the District Attorney of Orleans Parish charged Gordon Novel with conspiracy to commit aggravated arson on March 2, 1976 on the structure located at 330 St. Charles Avenue in the city of New Orleans. La.Rev.Stat. 14:26, 51. In July of 1976, Novel posted a $40,000 appearance bond as principal, with Peerless Insurance Company as surety.

After a first trial resulting in a hung jury, on motion of defense counsel in open court on December 1, 1976 a second trial was set for January 18, 1977. On the day fixed for trial defendant Novel did not appear and the trial was continued on the unsworn written motion of the defense, alleging that Novel was in the intensive care unit of the Medical Arts Hospital in Dallas, Georgia, under the care of Doctor Worthy. Defense counsel alleged that the information had been telephoned to him at 12:30 that day.

The court issued an alias capias for the arrest of defendant, fixing bail at $80,000. The State then moved the court to forfeit the $40,000 bond and the motion was denied “at this time.” In effect the trial judge held the case open to permit Novel and Peerless to file the requisite affidavit of physical disability within a reasonable time.

Thereafter, on February 10,1977, defense counsel filed a letter in the record from Dr. Jerry L. Worthy of Dallas, Georgia, stating that Novel was admitted to the Medical Arts Hospital there at nine o’clock on the morning of January 17, 1977 with complaints, signs and symptoms of an acute myocardial infarction or an impending cardiac problem. Novel, he wrote, was discharged three days later on January 20, 1977 with a diagnosis of angina pectoris.

Apparently, because of this inadequate showing of physical disability, on February 11, 1977 the State re-urged its January 18, 1977 motion to forfeit the $40,000 bond.

A deputy sheriff then testified that on January 18, 1977, while assigned to the court, he called out for Gordon Novel three times in the courtroom and three times in the hallway, with no response. Thereafter the State introduced in evidence a notice served on Gordon Novel on December 6, 1976 that he would be tried on January 18, 1977. The return noted that the house, which was the address on the bond furnished by Novel, was being repaired, but Novel was still getting mail at that address. The notice was left in the door. Although not referred to at the time, the record also contains a notice served on Peerless of Novel’s trial date. The State also introduced the bond into evidence and again moved that it be forfeited.

In ruling on the motion the trial judge stated that on January 18 when the matter was called for trial and Novel was not present, the State moved to forfeit the bond. The motion was denied on January 18, according to the trial judge, because the court had good reason to believe that the defendant was hospitalized. An alias capias was issued for Novel’s arrest at that time because he had moved without notifying the court and because he was out of state.

Since that time, the trial judge declared, he had discovered that Novel was no longer in the city of New Orleans and his wife and family had moved out of the city. The trial judge said that the sheriff of Paulding County, Georgia, advised that an attempt was made to execute the alias capias on January 20, 1977 but that Novel had checked out of the hospital minutes before he arrived. Under these circumstances, the trial judge considered Novel to be a fugitive from justice and therefore ordered the bond forfeited. A formal judgment of bond forfeiture was signed and filed at that time. A new alias capias was issued for Novel’s arrest with bond of $250,000.

Notice of the forfeiture was mailed on February 16, 1977 to the surety on the bond at 116 John St., New York City. A copy of the notice was also mailed to the agent of the surety who posted the bond at the New Orleans address appearing on the face of the bond. An affidavit of the Clerk of Court was filed in the record on February 17, 1977 affirming that the notice of bond forfeiture had been sent by certified mail to the surety and its agent on February 16, 1977. No timely effort was made by Peerless to obtain review of this judgment.

July 13, 1977 was the next time counsel for Peerless appeared in open court. A motion was then filed to suspend the time period during which the bond forfeiture could be set aside. Therein it was alleged that Novel had voluntarily surrendered himself to the State of Georgia on February 22, 1977 in response to the arrest warrant issued by the Louisiana court. Novel was released on bond in Georgia, according to these allegations, and his extradition was on appeal to the Georgia Supreme Court. For these reasons, the motion continued, Novel could not be forcibly returned to Louisiana without violating the laws of Georgia, and the time to rescind the bond forfeiture in the instant case should be extended until five and one-half months after final disposition of the Georgia case.

A motion to rescind the bond forfeiture was also filed on the same day. According to that motion, it was error to hold a hearing on February 11, 1977 and order the bond forfeited without giving Novel an opportunity to present himself for trial. It was also alleged that the oral and documentary evidence adduced at that hearing was insufficient.

These motions were denied without a hearing for the stated reason that the defendant Novel was a fugitive from the State and not present in court. Counsel for Peerless objected to the ruling and applied to this Court for certiorari.

In its application to this Court Peerless alleged that its motion to rescind filed on July 13, 1977, five months and two days after the bond forfeiture, was timely (within the six months from forfeiture allowed by statute to apply to have the forfeiture set aside or rescinded).

Peerless’ application also complained of the trial judge’s refusal to hold an eviden-tiary hearing on its motions for an extension of time and to rescind the bond forfeiture. Because of this, the application asserts, Peerless was prevented from adducing proof of Novel’s hospitalization on January 18 or the fact that he was in custody in Georgia, which would have established the “non-forfeiture situations” referred to in Section 87 of Title 15 of the Revised Statutes. A motion to forfeit alone, Peerless asserted, was not sufficient; Sections 85 and 87 of Title 15 of the Revised Statutes permitted “adequate proof [to be] furnished within six months of forfeiture” in order to rescind the forfeiture. After considering the application, this Court ordered an evidentiary hearing contradictorily with the district attorney on the motions to extend time and to rescind the bond forfeiture. A hearing in the trial court was accordingly set for August 8, 1977 on Peerless’ motion and thereafter continued to August 12.

Although Novel was not in attendance, the hearing was held as scheduled on August 12. At that time, over the State’s objection, Peerless offered to introduce a number of documents. Then over objection by Peerless the State offered to introduce its documentary evidence. All objections were overruled and the documents were admitted. Peerless’ offerings consisted of an affidavit by Dr. Jerry L. Worthy, dated July 26,1977, stating that Novel was admitted to the Medical Arts Hospital [in Dallas, Georgia] on January 17, 1977 complaining of chest pains and was treated as an inpatient until January 20, 1977 at which time he was discharged with the diagnosis of angina pectoris; an affidavit of the custodian of records at Medical Arts Hospital with copies of the hospital records attesting to Novel’s admittance and discharge as stated by Dr. Worthy; a nurse’s affidavit verifying Novel’s presence at the hospital as stated in Dr. Worthy’s affidavit; a news release relating to a citation conferred upon Dr. Worthy for heroic conduct at the site of an airline disaster in Georgia; an August 3, 1977 letter from Novel’s bail bondsman surrendering Novel to the Sheriff of Orleans Parish “via his surrender to and present custody by, Bill Hutson, Sheriff of Cobb County, on February 22,1977 under a Louisiana fugitive warrant,” Novel then being in custody under bond awaiting extradition to the State of Louisiana; and a copy of a mailgram dated August 4, 1977, addressed to the Sheriff of Cobb County, Georgia, confirming the surrender of Novel by his bail bondsman to the Sheriff of Cobb County. A copy of an order of court from Cobb County, Georgia, was not admitted when the State objected.

Among the State’s exhibits which were apparently ordered filed is a letter from the Sheriff of Paulding County, Georgia, to the Sheriff of Orleans Parish dated February 24, 1977. The author of the letter expressed the opinion that a security leak had occurred in connection with the apprehension of Novel under the alias capias issued on January 18, 1977. The opinion was based upon the circumstance that Novel left the hospital “a short time” before the sheriff arrived to apprehend him on the fugitive warrant.

On this record the trial judge denied the motions. Thereafter, on the State’s motion a writ of fieri facias was issued against Peerless and Novel, with accompanying interrogatories dated August 15,1977, to garnishee funds belonging to Peerless in the hands of the State Treasurer.

Peerless then moved to reopen the hearing of August 12 for the purpose of receiving evidence relating to the service of process upon Peerless, the service of notice of forfeiture upon Peerless and the authority of the agent who issued the Novel bond to act for Peerless. A hearing held on this motion on August 22 resulted in a denial, the court refusing to reopen the hearing of August 12 to receive additional evidence in support of Peerless’ contention that the bond forfeiture of February 11 should be set aside. There was no error in the denial of the August 22 motion to reopen the hearing of August 12. The August 12 hearing gave Peerless every opportunity to present evidence in support of its position. The technical inadequacy of service complained of was therefore cured, if they were indeed well-founded in a technical sense.

From this ruling Peerless applied to this Court for review. In granting a writ the Court requested argument “as to whether a judgment decreeing a bond forfeiture may be set aside if adequate proof is furnished within six months of the forfeiture that the principal was prevented from attending by physical disability.”

Addressing this issue in a per curiam the trial judge set forth that Section 87(A) of Title 15 of the Revised Statutes provides that a judgment of forfeiture shall not be rendered if it is shown “to the satisfaction of the court by the sworn statement of a reputable physician that the principal in such bond is prevented from attending by some physical disability.” Relying upon this provision the trial judge expressed the opinion that as a general proposition a judgment of forfeiture, once rendered, could not be set aside for physical disability unless the defendant is surrendered and tried or the case is continued. In his opinion the only other instance in which a forfeiture could be set aside was when the principal was detained in another jail or in the armed services. Thus, he concluded, in the case of physical disability the forfeiture could only be prevented by a showing to the satisfaction of the trial judge by the sworn .statement of a reputable physician furnished at the time the principal failed to appear that he was prevented from attending by some physical disability. In the absence of such a showing, once the forfeiture took place, no time was allowed by statute to set the forfeiture aside.

In the case where the principal is prevented from attending because he is detained in a jail or penitentiary in another jurisdiction or is serving in the armed forces of the United States, however, the trial judge was of the opinion that the legislature had seen fit to allow six months to prove the principal’s detention and have the forfeiture set aside.

In the instant case, the trial judge found that the affidavit of physical disability was not presented until August 8, 1977, five months and twenty days after the day when Novel was to appear on January 18, 1977. Notwithstanding the tardy presentation of the affidavits of physical disability and the other evidence received at the August 12 hearing, the trial judge was not “satisfied” from the sworn statement of the physician that the principal was prevented from attending court on January 18. “The whole history of this case,” the per curiam set forth, “including the defendant’s testimony at the earlier trial which ended in a hung jury has indicated to the trial court that the defendant was contemptuous of the authority of the court.”

Initially it should be noted that on January 18, 1977 the trial judge did not order forfeiture of the bond “at this time”, but held the case open in order to afford Peerless the opportunity to produce proof of its unsupported claim that Novel was physically disabled. When an unsworn letter was furnished on February 10 the State reurged its motion for forfeiture and it was formalized and granted on February 11. In its pleading Peerless relies on this February 11 date in computing the time within which it considers the law permitted the affidavit of physical disability to be furnished.

Nevertheless, under the State’s theory, this February 11 date is unimportant because the State contends that no time is allowed subsequent to the day when the defendant was required to appear for trial. Nor is this position altered because the trial judge held the case open to enable Peerless to file the requisite affidavit. This position contemplates that the State’s January 18 motion to forfeit was held in abeyance and formalized on February 11.

Because there is no evidence that Novel was in prison or in the armed forces on January 18, 1977 a showing that he was detained on that account at a later date would have no bearing on the State’s right to claim a forfeiture because of the nonappearance on January 18. For these reasons, this Court’s interpretation of Section 87 must determine whether proof of physical disability must be furnished on or before the day on which the defendant is ordered to appear, or whether a showing may be made within six months after bond forfeiture that the principal in the bond was prevented from attending by some physical disability. Since neither Novel nor Peerless made such a showing on January 18, 1977 when Novel’s appearance was required, the question is crucial to their right to set aside the forfeiture.

Section 87 provides:

“A. No judgment decreeing the forfeiture of the appearance bond shall be rendered if it is shown to the satisfaction of the court by the sworn statement of a reputable physician that the principal in such bond is prevented from attending by some physical disability.
“B. No judgment decreeing the forfeiture of the appearance bond shall be rendered if it is shown to the satisfaction of the court that the principal in such bond is prevented from attending because he is being detained in a jail or in a penitentiary in another jurisdiction or is serving in the armed forces of the United States. A sworn affidavit of the jailer, warden or other responsible officer of the jail or penitentiary in which the principal is being detained, or the commanding officer of the principal who is in the armed forces, shall be considered adequate proof of the principal’s detention. If adequate proof is furnished within six months of forfeiture that the principal failed to appear on date of forfeiture for the reasons herein set forth, the forfeiture shall be set aside. Acts 1966, No. 311, § 2, eff. Jan. 1, 1967.”

The State takes the position that because the sentence, “If adequate proof is furnished within six months of forfeiture that the principal failed to appear on date of forfeiture for the reasons herein set forth, the forfeiture shall be set aside.”, is to be found in subsection B, the language grants six months to furnish adequate proof only in situations referred to in subsection B, and subsection B only involves detention in prison and the armed forces. This view of subsection B is further confirmed, it is argued, because the clause, “the reasons herein set forth”, refers to the reasons for forfeiture set forth in subsection B, those being, detention in prison or the armed forces. On the other hand, citing the history of Section 87, Peerless argues that the six months allowed by subsection 87B applies to the entire section, allowing six months to furnish the proof of physical disability referred to in subsection 87A.

In this Court’s view “the reasons herein set forth” is a limiting clause in subsection B which properly confines the furnishing of adequate proof to the reasons assigned in subsection B — detention in jail or the armed forces. Support for this interpretation is to be found in that part of subsection B which refers to “[a] sworn affidavit of the jailer, warden or other responsible officer of the jail or penitentiary in which the principal is being detained, or the commanding officer of the principal who is in the armed forces, shall be considered adequate proof of the principal’s detention.” This quoted language is immediately followed by reference to that adequate proof in these words: “If adequate proof is furnished within six months . ..” The adequate proof allowed within six months, then, is obviously the adequate proof mentioned in the immediately preceding sentence — that is, proof of detention in prison or the armed forces. Subsection 87A makes no reference to adequate proof or a six-month period after forfeiture to furnish that proof. That subsection contemplates that the forfeiture shall not be decreed “if it is shown to the satisfaction of the court by the sworn statement of a reputable physician that the principal in such bond is prevented from attending by some physical disability.” The tense of the language employed denotes the present, not a future showing. Unless a provision for furnishing proof in the future is contained in subsection A as it is in subsection B such a meaning should not be read into subsection A.

It should be noted that physical disability was first recognized as a cause for preventing a bond forfeiture by Act 17 of 1900. Surrender of the prisoner within specified times was also a cause for setting aside a bond forfeiture. See Article 108 of 1928 Code of Criminal Procedure (surrender in 5 days); Act 287 of 1950 (surrender in 30 days); Act 260 of 1956 (surrender in 60 days). The surrender provisions, however, in no way affected the physical disability provision. They were separate enactments.

It was not until 1958 that the legislature added imprisonment as a ground for preventing forfeiture. Significantly, however, this ground for preventing forfeiture was added as an amendment to Article 109 of the 1928 Code of Criminal Procedure as subsection B, subsection A being the physical disability provision. Neither subsection then contained a provision permitting time to produce proof after the forfeiture in order to set it aside.

By Act 411 of 1962 a third ground for preventing forfeiture was enacted, detention because of service in the armed forces. This ground was incorporated into the subsection of the Act relating to detention on account of imprisonment. For the first time the law permitted time after forfeiture to furnish proof of the detention, placing that provision within the subsection relating to detention on account of imprisonment or service in the armed forces. The first subsection of the act reenacted the physical disability ground as a defense to forfeiture. Its integrity as a separate ground was retained by its inclusion in a separate subsection of the Act.

Act 220 of 1964 is the present version of Section 87.

This history is noteworthy. The deliberate separation of the grounds in subsections A and B was apparently a recognition by the legislature that they required separate treatment. Throughout their history subsections A and B have been maintained as separate and distinct provisions.

Except for the language of the statute itself and the inference to be gained from the sections’ history a search for the legislative intention has proven unavailing. It is necessary, therefore, to apply the statute according to its letter, which cannot, under recognized principles of statutory construction, be disregarded under the pretext of pursuing its spirit. La. Civil Code art. 13.

The usual and ordinary signification attributed to separate subsections where there is no general principle enacted in the section to which they are subservient is to accord to each subsection a separate and independent status as though they were independent enactments. To do otherwise would be to impose upon one subsection the meaning contained in the other without a reason to do so. The result would be to change the meaning of the enactment thus affected.

While the following observation may not be relevant to the question of statutory interpretation, it is important to a disposition of this case on its merits because it involves an element of the statute which is undisputed; the unambiguous language of subsection A requiring that the showing of physical disability be “to the satisfaction of the court.” The trial judge stated emphatically that he was not “satisfied” that the sworn statement of the physician established Novel’s physical disability. Such a conclusion was undoubtedly the result of his familiarity with the entire case and his observation of Novel’s contemptuous attitude at the aborted trial. This, together with the circumstance that Novel left the hospital within minutes before the sheriff appeared to apprehend him, supports the judge’s credibility ruling. Therefore, it was not shown “to the satisfaction of the court” as subsection A of Section 87 requires, by the sworn statement of the physician, that the principal in the bond was prevented from attending by some physical disability. Consequently, it does not matter whether the affidavit was presented at the time when Novel’s appearance was required or within six months thereafter if it was not “to the satisfaction of the court.”

On the record, therefore, Peerless has not made a timely showing to the satisfaction of the court that the bond should not be forfeited.

For the reasons assigned, the judgment of the trial court ordering the bond forfeiture is affirmed.


author: CALOGERO, Justice. DENNIS, J.,

text:
    STATE of Louisiana v. John DUNBAR and Jason Gordon.
    No. 60634.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.

      Bruce S. Kingsdorf, New Orleans, for Jason Gordon.
    Roy A. Raspanti, Chalmette, for John Dunbar.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendants John Dunbar and Jason Gordon were charged by bill of information with the armed robbery of one Willie Brown (count one) and of one Eldridge Sheppard (count two), both in violation of R.S. 14:64. They pled not guilty and, after trial, the jury returned verdicts of guilty as charged as to both counts for both defendants. Thereafter, both defendants were determined to be multiple offenders; Dunbar was sentenced to forty nine and one-half years at hard labor with credit for time served; defendant Gordon was sentenced to thirty-three years at hard labor with credit for time served. On appeal, defendants rely upon four assignments of error for reversal of their, convictions and sentences.

PACTS

On April 28, 1976 between 2:30 and 3:00 p. m., high school students Willie Brown and Eldridge Sheppard were approached by two men around the 3000 block of Thalia Street in New Orleans, approximately two blocks from their school. One of the two men pulled out a gun which was partially wrapped in a purple bandana, took the boys’ hats and watches, and demanded their money. The other man exposed a gun in his waistband, also wrapped in a bandana, but never pulled it out. Brown gave them 40 cents in pocket change. As the men commanded, the students began to run in the direction of Claiborne Avenue, while the armed men ran in the opposite direction.

Brown and Sheppard immediately proceeded to the Sixth District Police Station and reported the incident to Officers Leu-fray and Wilson. They provided the following description of the two men: two black men, aged 20-22 years; one man with a darker complexion, heavier than the other, with plaited hair in rubber hands, wearing green short pants and a green striped shirt; the other with a lighter complexion, a slim build, wearing a bandana around his head. Sheppard stated that he had recognized the slimmer man.

The officers left in their patrol car taking the boys with them, drove first to the location of the incident, and then in the direction the men had run. Upon arrival at the 3300 block of Thalia Street in the Calliope Housing Project (about three blocks from where the robbery had occurred), Officer Wilson saw a man wearing green short pants and a green tank top, who had been sitting on an apartment porch, quickly jump up and run into the building at 3316 Thalia Street, apparently having seen the police car. Brown then identified a hat which was on the porch steps as that taken from him in the robbery. Officer Wilson radioed for back-up units and entered the building from the back. He announced his purpose in investigating an armed robbery to a woman (who was later determined to be defendant Dunbar’s mother) at Apartment D and, according to Officer Wilson’s testimony at trial, was allowed to enter. The two defendants were found sitting in the living room, one wearing green short pants and a green shirt. As Officer Wilson opened the front door of the apartment to admit another officer, he discovered a loaded revolver outside the apartment door in the hallway of the building. The defendants were advised they were under suspicion for armed robbery, handcuffed, escorted downstairs and identified as the perpetrators of the robbery by the victims, Brown and Sheppard. The defendants were placed under arrest. Following the arrest, the officers seized a purple handkerchief from defendant Dunbar and a second handkerchief from defendant Gordon.

After removing the defendants from the apartment, Officer Wilson returned to Apartment D with two other officers and, according to Wilson, obtained consent to search the apartment. Wilson found a chrome watch wedged in the cushion of a chair where one of the men had been sitting, and another officer located a green striped shirt in the bathroom of the apartment.

ASSIGNMENT OF ERROR NO. 1

Defendants contend, on various grounds, that the trial court erred in denying a motion to suppress evidence obtained pursuant to a warrantless arrest and warrantless search.

Defendants first contend that the police officers’ entry into Apartment D of 3316 Thalia Street was unlawful and, therefore, all the evidence seized as a result of that illegality (a green and white striped shirt, a purple handkerchief, a pistol, the chrome watch, and identifications by the victim) must be suppressed.

Article 213(3) of the Code of Criminal Procedure authorizes a warrantless arrest whenever an officer has reasonable cause to believe the person to be arrested has committed an offense. In the instant case, Officer Wilson observed a man fitting a description given by the victims of the robbery spring to his feet from a porch where he had been sitting and race into a four-plex at 3316 Thalia. This occurred within one-half to three-quarters of an hour following the robbery and within three blocks of where the offense was committed. In addition, lying on the steps of the porch where the man had just been sitting was a cap which was positively identified at that time by one of the victims as that taken from him during the robbery.

A warrantless arrest can only be made if it is based on probable cause which exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. See State v. Herbert, 351 So.2d 434 (La.1977) and citations therein. Probable cause to arrest the man existed from the time the officer saw him running. The man’s apparent flight from apprehension does not in and of itself indicate guilt, see State v. Herbert, supra; however, combined with the description of the robber, his close proximity to the scene of the offense both in time and location, and the presence of property taken in the robbery, the flight would indicate to a reasonable man that the fleeing man had some involvement with the crime. The policeman’s pursuit of defendant into the dwelling was made with probable cause and in “hot pursuit” so that entry into the apartment building without a warrant did not violate state or federal constitutional guarantees. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); State v. Franklin, 353 So.2d 1315 (La.1978).

Defendants concede that the existence of probable cause and exigent circumstances warranted the officers’ entry into the apartment building; they argue, however, that there was no such probable cause for entry specifically into Apartment D where defendants were found. In support of this argument they cite a federal appellate court case, United States v. Scott, 520 F.2d 697 (9th Cir. 1975). In Scott, police officers pursued four black male armed robbers to an apartment building containing approximately twenty units. On the basis of certain information the officers were able to narrow their search to seven suspected apartments and eventually found the defendants in the last-searched apartment. The court affirmed the trial court’s denial of a motion to suppress on the basis that the officers had probable cause to believe the men were in the apartment where they were found. The officers had already eliminated the other six suspected apartments and at the seventh the officers knocked for a few minutes, announced their identity, got no response, and heard scuffling noises from the interior. In the course of the opinion the court stated:

“Accepting that pursuit here had brought the officers to the apartment house, this did not render each apartment in it subject to search. The occupants of each apartment had their independent right to be free from unreasonable search. No apartment was subject to entry in the absence of probable cause to believe that the robbers were present in that particular apartment.” 520 F.2d at 700.

The testimony at the hearing on the motion to suppress in the case now before us is unclear as to how or exactly when the police officers determined that Apartment D contained the suspect. Officer Wilson testified that the officers “began searching each of the apartments for the fleeing subject” and then went on to state that when they reached Apartment D they entered through the rear and found the two defendants. The testimony does not reveal if certain noises were heard emanating from the apartment or if the other three apartments had already been checked. Therefore, it is not possible to determine with certainty whether the entry into Apartment D was made with probable cause to believe that the suspects were inside that particular apartment. For that reason, we cannot hold that warrantless entry was justified because made with probable cause and in hot pursuit, nor unjustified because made without probable cause. Warden v. Hayden, supra; United States v. Scott, supra.

Instead, we find that entry was legally made on the basis of consent. In that regard, the state argues that entry into Apartment D was initially obtained through the permission of Mrs. Dunbar, John Dunbar’s mother. But at the hearing on the motion to suppress, as defendants correctly point out, the state offered no evidence to show that permission to enter was secured. The state responds that the record of the hearing on the motion to suppress is silent on the question of initial entry into the apartment since the issue at that hearing was the later entry, made after defendant’s arrest, for the purpose of searching for evidence.

At a motion to suppress hearing, once the defendant makes the initial showing that a warrantless search occurred, the burden of persuasion shifts to the state to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Franklin, supra. The state argues that although there was no testimony at the hearing regarding permission to enter the apartment, Officer Wilson testified at trial:

“Upon reaching Apartment D, a black female opened the door there. I advised her we were looking for two subjects possibly wanted for the armed robbery that might be in the building. ‘Could we possibly check the residence?’ The lady responded verbally that we could check the residence, but opened the door fully and we entered.”

At trial, Mrs. Dunbar denied that she gave the police permission to enter but rather, “they just barged on by me and came on in.” She admitted, however, that the policeman knocked at the door, identified themselves as police officers, and that she opened the door.

This Court has held that we are not limited to the evidence adduced at trial of a motion to suppress in determining the correctness of a ruling on the motion but may consider all pertinent evidence given at the trial of the case. State v. Shivers, 346 So.2d 657 (La.1977); State v. Smith, 251 La. 1109, 245 So.2d 327 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967). Thus, we will accept the trial testimony of Officer Wilson that Mrs. Dunbar consented to the officers’ entry into the apartment. Defendants argue alternatively that if Mrs. Dunbar consented to the search that her agreement was coerced because she was not advised of her right to deny the officers’ entry and was intimidated by the police.

Questions of consent are issues of fact, dealing as they do with witness credibility. State v. Temple, 343 So.2d 1024 (La.1977); State v. Bartley, 329 So.2d 431 (La.1976). The determination of the trial judge, who has the opportunity to hear and observe the witnesses, is entitled to great weight on review. State v. Temple, supra. The fact that a person was not warned of his or her right to refuse entry, while a significant factor in determining whether consent was given, is only one factor in determining the voluntary nature of consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Temple, supra. Under the circumstances of this case, we cannot say that the trial judge erred in finding that the state had carried its burden of showing that the entry fell under the exception to the warrant requirement which allows a lawful search without a warrant on proper consent.

Since police entry into the apartment was lawful on the basis of the voluntary consent of a co-inhabitant, denial of the motion to suppress the pistol, the purple handkerchief and the victim identifications was proper. Officer Wilson inadvertently came across the pistol while admitting Officer Leufray through the front door of the apartment. The police officer had a right to be where he was and therefore could seize the incriminating object which was in plain view. See Harris v. U. S., 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Williams, 349 So.2d 286 (La.1977); State v. Williams, 347 So.2d 231 (La.1977). The handkerchief was properly seized in a search incident to a valid arrest. The victim identifications are not tainted by the warrantless entry, for the entry was not legally impermissible.

The assignment has no merit.

ASSIGNMENT OF ERROR NO. 2 (Dunbar), NO. 3 (Gordon)

Defendants contend that the one-on-one show-up identifications of defendants at the scene of their arrest by the victims was impermissibly suggestive and conducive to misidentification. Thus, they argue, the trial court erred in denying their motion to suppress the out-of-court identifications. They further argue that the in-court identifications made by the victims did not meet criteria to show that those identifications had a source independent of the tainted out-of-court identification and, therefore, should not have been permitted at trial.

The record reveals that the victims were sitting in the back of a police unit in front of 3316 Thalia Street at the time the arrests were effected. The victims were asked if the defendants, now in handcuffs, were the perpetrators. Both boys positively identified defendant Dunbar, and Sheppard positively identified defendant Gordon. The identifications were made from a distance of approximately 25 to 35 feet.

While one-on-one confrontations between a suspect and victim are not favored by the law, identifications made in this matter are permissible when justified by all of the circumstances. State v. Frank, 344 So.2d 1039 (La.1977); State v. Lee, 340 So.2d 1339 (La.1976); State v. Maduell, 326 So.2d 820 (La.1976). In particular, such identifications are permitted when the accused is apprehended within a relatively short period of time after commission of the offense and is returned to the scene of the crime for on-the-spot identification. State v. Collins, 350 So.2d 590 (La.1977); State v. Maduell, supra; State v. Bland, 260 La. 153, 255 So.2d 723 (1971). As the court explained in Maduell, 326 So.2d at 825, one theory behind permitting such in-field identifications is that prompt confrontations may promote fairness “by assuring reliability and the expeditious release of innocent suspects.”

In the instant case, the victims were present where defendants were arrested so that circumstances did not necessitate the defendants being transported back to the scene of the crime, or of the arrest, for identification. The victims saw defendants within a short time after the incident and only a few blocks from its location as they searched with police for the robbers. Moreover, consistent with the theory espoused in Maduell that on the scene confrontations allow for the release of innocent suspects, the confrontation resulted in the release of a man who remained on the porch steps next to the stolen hat after the other man had run; the victims told the police officers they were certain he was not involved in the crime. Thus we find that under the circumstances here presented the one-on-one show-up identifications were not impermissibly suggestive. State v. Frank, supra.

There is no merit to this assignment.

ASSIGNMENT OF ERROR NO. 3 (Dunbar), NO. 2 (Gordon)

Defendants assign error to the trial court’s denial of their motions to sever. They argue that their defenses were antagonistic to each other and therefore they should have been tried separately.

Defendant Gordon filed a motion to sever with a request that he be afforded a separate trial from defendant Dunbar, contending that his defense was antagonistic to the defense of Dunbar. He related in his motion that Dunbar had made a signed statement protesting his own innocence and that defendant Gordon alone had committed the offense. The Dunbar statement attached to the motion said that Gordon had taken Dunbar’s father’s gun from Dunbar, and that Gordon robbed the two juveniles in Dunbar’s presence, threatening to shoot the juveniles as Dunbar was telling him not to do so. In the statement Dunbar also expressed that Gordon had not told Dunbar what he was going to do with the gun.

Defendant Dunbar also filed a motion to sever with a request for a separate trial, but his motion did not specifically set forth that the two defendants had antagonistic defenses. He stated in response to a prayer for oyer that the state had presented to the defendants copies of written statements in which each contended that the other had committed the crime. Dunbar’s motion goes on to assert that the assistant district attorney had expressed in open court that she did not intend to use his statement in the trial in chief but that she intended to use both statements in cross examination of the defendants for impeachment purposes if they decided to testify in their own behalf. The motion further related that the district attorney’s statement of intention and the nature of the defendants’ written statements effectively prohibited them from testifying in their own behalf, and thus they were deprived of an opportunity for a fair trial. Under Article 704(2) of the Code of Criminal Procedure, they assert, justice required a severance of their cases.

Article 704(2) requires that “jointly indicted defendants shall be tried jointly unless . . . the court ... is satisfied that justice requires a severance.” We recently set out the law in this area in State v. Singleton, 352 So.2d 191, 192 (La.1977) wherein we said:

“There is no more classic situation of the need for a severance than one in which two co-defendants each place the blame for a crime on the other. State v. Thibodeaux, 315 So.2d 769 (La.1975); State v. Birbiglia, 149 La. 4, 88 So. 533 (1921). However, a mere allegation that a co-defendant intends to accuse the other does not automatically require severance. State v. Hunter, 340 So.2d 226 (La.1976). Instead, co-defendants seeking severance must present evidence of actual antagonism. State v. Jenkins, 340 So.2d 157 (La.1976); State v. Medlock, 297 So.2d 190 (La.1974). The trial judge’s decision to disallow a severance under Article 704 is a discretionary one which will not be upset by this Court absent abuse. State v. Thibodeaux, supra; State v. Medlock, supra; State v. Smith, 283 So.2d 470 (La.1973).”

We will consider the motions of the defendants separately.

Defendant Gordon in his motion contended that the co-defendants’ defenses were antagonistic; he relied in that motion upon the existence of the two statements as evidence of that antagonism. At the hearing on the motion, however, the trial judge offered Gordon’s attorney the opportunity to state what his defense was going to be: “It’s not necessary for you to take the stand as long as you tell me what the defense is going to be,” said the judge. Counsel sought and received permission to speak to his client, and did so, and then stated:

“Your honor, if I could be assured that the statements will not be used on the impeachment, I can see there’s no contradiction in the defenses of the two co-defendants.”

The judge immediately advised he would not hold the state to an assurance of non-use of the statement and denied the motion to sever.

Thus, given a chance to assert that the defenses would be antagonistic, and after conferring with his client, the attorney, while admittedly attempting to secure the advantage of a state commitment not to use the statements, not only desisted from giving such showing but asserted: “I can see there’s no contradiction in the defenses of the two co-defendants.” Although the admission of two mutually accusatory statements given soon after arrest would normally comprise evidence of actual antagonism, under these circumstances defendant’s stark motion allusion to the existence of purportedly contradictory accusatory statements is hardly evidence of anticipated at-trial “actual antagonism.” Furthermore, defendants’ trial defense was alibi.

Defendant Dunbar in his motion did not allege antagonistic defenses, and at the hearing on the motion to sever presented no evidence or statement concerning what his defense would be. As related hereinabove, his position in motion and at hearing was simply that the existence of the mutually accusatory statements, and the district attorney’s asserted intention to use the statement or statements for impeachment purposes in the event one or both defendants should testify, effectively prohibited both defendants from testifying in their own behalf. At the hearing, however, counsel did rely in fact on the case of State v. Thibo-deaux, supra, which grants a severance to defendants on the basis that their defenses were antagonistic, and, in brief, defendant Dunbar argues that his conviction should be reversed because the trial judge wrongly denied his motion for severance made because of antagonistic defenses. Thus, we will consider defendant Dunbar’s motion to sever as if made on the basis of antagonistic defenses.

Like defendant Gordon, defendant Dunbar had given a statement which implicated himself, in that it put him at the scene, and accused his co-defendant directly of the crime. As we have heretofore stated, while such mutually accusatory statements would normally supply the evidence necessary to justify a severance under Article 704, here, defendants Dunbar and his attorney, like defendant Gordon and his attorney, were unable or unwilling to say at the hearing that the statements accurately represented their proposed trial defense. When defendant Gordon’s attorney was asked to assert whether his client intended to adhere to his written admission, defendant Dunbar had the opportunity to insist that his position, unlike that of his co-defendant, was indeed the same as related in his written statement. He did not take that position, however, and, as we stated earlier, did not at the hearing emphasize or detail the defenses or the antagonism of the two eo-defend-ant’s trial defenses.

Thus we find that the assignments of both defendants have no merit, and that the trial judge did not abuse his discretion in refusing their severance motions.

ASSIGNMENT OF ERROR NO. 4 (Dunbar)

Dunbar alleges that the trial court erred in denying him a new trial. This assignment merely realleges those assignments previously discussed and found to be without merit.

Decree

Accordingly, the convictions and sentences of defendants Dunbar and Gordon are affirmed.

AFFIRMED.

DENNIS, J.,

dissents. See State v. Shivers, supra, and remarks in footnote 3 of the majority opinion.

      . The officers went upstairs, ostensibly to assure themselves the apartment was free of other accomplices, and found a white cap, a golf type cap and a wrist watch. These items were not introduced into evidence by the state.

      . The record does reflect that Officer Wilson personally checked Apartments B and D. Other back up personnel had arrived and also were engaged in the search of the building, but the record does not reveal if they checked the remaining apartments or if any particular attention had been directed to defendant’s apartment before that apartment was entered.

      . At least two Justices of this Court, including the author, believe that determination of the correctness of the trial judge’s ruling should be limited to evidence adduced at the hearing without reference to the trial testimony. See State v. Shivers, supra at 663.

      . Gordon’s statement is not made part of the record before us.

      . We concede that if Gordon and Dunbar and/or their attorneys had told the court when invited to do so that the trial defenses of the two would be that posed in the statements— “he did it” — and inferentially or directly — “I didn’t do it” — it would be immaterial that following denial of the motion the defendants respectively presented a different defense (alibi). But here where we construe Gordon’s attorney’s comment, “there’s no contradiction in the defenses of the two co-defendants,” use of the ensuing alibi defense, rather than the accusatory defense, has relevance.