author: BOLIN, Justice.

text:
    STATE of Louisiana v. Joseph K. TARVER.
    No. 56718.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      E. B. Dittmer, II, Dittmer & Yeager, Alexandria, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., L. Paul Gianfala, Asst. Dist. Atty., for plaintiff-appellee.
   BOLIN, Justice.

Relator was arrested on April 29, 1975, and charged by bill of information with knowingly and intentionally possessing a controlled dangerous substance, to-wit, marijuana, with intent to distribute, a violation of La.R.S. 40:966. Before the date set for trial, relator filed a motion to suppress the evidence seized on the ground that it was the fruit of an illegal search and seizure. Following a hearing, the trial court refused to suppress the evidence, holding no search warrant was required and the evidence was thus legally obtained. Defendant sought and was granted writs by this Court to examine the circumstances surrounding the warrantless search.

On the evening of April 28, the day before relator was arrested, he was visited by an undercover agent for the state police who requested that relator meet him the next morning at a convenience store to complete a sale of marijuana. After relator had agreed to sell the marijuana, the undercover agent told the police officers and a scheme to arrest relator was devised. The agent agreed to leave from the convenience store with relator in his car, drive to a particular bowling alley and, if relator had marijuana with him, the agent was to feign loss of control of his car in front of the bowling alley; police officers would then stop the car, seize the marijuana and arrest relator.

When the agent picked up relator the following day, relator brought marijuana with him. As planned, the agent was stopped by the police officers near the bowling alley, arrested, removed from his car and placed in the police car. The agent testified he told the arresting officer relator had marijuana in his boot.

The arresting officer ordered relator to get out of the car and then searched his person. When the officer felt in relator’s boots, he found bags of marijuana. Without removing the marijuana, the officer then handcuffed relator and placed him in the police car. He waited until another officer arrived; they removed the marijuana from relator’s boots and searched under the seat of the car, where they found more marijuana. No search warrant was obtained.

When a police officer has probable cause to believe that a person has committed a felony or is committing a misdemeanor, he may arrest the suspect without a warrant. This clearly was the case here, as the undercover agent’s signal did give the arresting officer probable cause to believe the relator was at least possessing marijuana at the time.

La.C.Cr.P. Art. 201 defines arrest as follows:

“Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restrain may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

We find that when the arresting officer ordered relator to get out of the car, the detention constituted an arrest.

This brings us to the question of whether the arrest conformed to the requirements of La.Const. Art. 1, § 13:

“When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. * * * ”

It is well settled that evidence obtained as a result of a constitutionally infirm arrest is inadmissible at trial, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), based upon the theory that the evidence is the “fruit of the poisonous tree.”

Relator argues that because he was not informed as required by La.Const. Art. 1, § 13, the search conducted in connection with the arrest is tainted. In this case relator learned of the reason for his arrest at the scene almost contemporaneously with the arrest. We find the constitutional mandate was satisfied.

We hold the police officers had probable cause to arrest relator, that the search of relator’s person was incident to a lawful arrest, and that the search of the area under the seat of the undercover agent’s car was with the consent of the owner. The searches were therefore legal.

The ruling of the trial court refusing to suppress the evidence is correct. Accordingly, the writ and stay order heretofore issued are recalled.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. James LARUE.
    No. 56637.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Samuel P. Love, Jr., Love, Rigby, Dehan & Love, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   BOLIN, Justice.

Defendant was convicted of the crime of aggravated battery in violation of La.R.S. 14:34. He was sentenced to ten years’ imprisonment. Defendant appeals, arguing seven assignments of error. We affirm.

This prosecution arose out of an altercation which took place at a bar in Sabine Parish, Louisiana. On the evening of November 21, 1974, defendant entered the bar and ordered two beers. The victim was present in the bar and he and defendant introduced themselves. Thereafter the defendant and the victim exited the bar but the victim reentered almost immediately. Shortly thereafter, defendant also returned to the bar, asking the victim why he had followed him from the bar. A discussion ensued and defendant soon struck the victim on the head. The victim attempted to hit defendant with a bar stool. It was not established whether the stool actually struck the defendant. If he was hit by the stool, defendant quickly recovered because he admitted he then administered a serious beating to the victim. The blow required extensive suturing of the victim’s head and face and he was hospitalized for four days.

When arrested shortly after the incident defendant was wearing steel-toed boots. He was charged with having committed a battery with a dangerous weapon “to-wit: a boot.”

ASSIGNMENT .OF ERROR NO. 1

On the day of trial defendant filed a motion for continuance, alleging a delay •was necessary because a witness whom he had subpoenaed was not present. The trial judge denied the motion, which ruling formed the basis of the first assignment.

Defendant concedes in brief the witness whose attendance he sought was not a resident of the parish where the trial was held. He likewise admits no application for the issuance of a subpoena was made in conformity with La.C.Cr.P. art. 740. All counsel admit the continuance was refused because of this non-compliance. Nevertheless, defendant argues, the continuance should have been granted because it was customary for the Clerk of Court of Sabine Parish to issue subpoenaes for out-of-parish witnesses without a formal order from the judge. He likewise avers the witness whose attendance was sought had actual knowledge of the request for, and the existence of, the subpoena. Assuming for the sake of argument such a custom would be relevant to this issue, there is no support in the record for defendant’s assertions. Nor does the record show there was knowledge on the part of the witness that she was aware of the subpoena and simply failed to come to court.

The trial court did not err in refusing to grant a continuance.

ASSIGNMENT OF ERROR NO. 2

This assignment is levelled at the trial court’s refusal to quash the general and petit jury venires. The alleged basis for the motion to quash was that the ve-nire lists were drawn on a selective basis, whereby certain persons and groups were arbitrarily, capriciously or knowingly excluded. The selection process used is alleged to have denied defendant his right to a jury representative of a fair cross-section of the community. Defendant focuses his attack on the alleged exclusion of persons between the ages of 18 and 21 and systematic exclusion of persons granted personal exemptions.

At the hearing on the motion the testimony of the clerk of court, an ex-officio member of the Jury Commission, revealed the parish-wide voter registration list being used by the Commission was for the year 1970. However, he testified more up-to-date lists received from political candidates had been used. Testimony reflects the Commission members also used the telephone directory as well as their personal knowledge of residents of the parish in selecting the general venire. While the testimony of the clerk of court reflects the Jury Commission had excluded some persons who are entitled to exemptions under Rule XXV (Rules of the Supreme Court of Louisiana), he likewise testified there were persons who were members of designated groups entitled to exemptions who had been included. 5

We find defendant has failed to establish fraud or that irreparable injury was caused by the method of selecting jury ve-nires in Sabine Parish in this and related cases. Such proof is required in order to set aside a general or petit jury venire. La.C.Cr.P. art. 419. We also hold defendant has failed to establish he was deprived of his constitutional right of a general or petit jury venire representative of a fair cross-section of the community in which he was tried.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 3

During direct examination of a deputy sheriff the State asked the witness to tell what he observed when he arrived at the bar where the altercation occurred. The witness’ reply concluded with the observation that “* * * [t]he man had obviously been dragged around in circles all over the bar room floor and chairs and tables.” The defense objected to this testimony, stating, “* * * [h]e can’t testify to that. He wasn’t there.” The trial court immediately sustained the objection. The prosecutor commented, “[a]ll right. Skip that part * * and the testimony of the witness proceeded without further defense objection. Defense counsel did not request the judge to admonish the jury nor did he ask for a mistrial. Defendant contends the trial judge should have taken cognizance of the extreme prejudice engendered by the witness’ remark and ex proprio motu declared a mistrial. This contention is not well founded. In State v. Johnson, 261 La. 620, 260 So.2d 645 (1972), we stated:

“But be that as it may, in relying on Article 771, counsel completely disregarded the provision of the article that ‘tipon the request of the defendant or the state’ (emphasis added) the court shall admonish the jury to disregard a remark or comment which is immaterial and prejudicial to the defendant or the state. No request for an instruction was made in the instant case. We hold, therefore, that there is no substance in the assertion that the judge committed reversible error in failing to admonish the jury to disregard the remarks.” 260 So.2d at 652.

ASSIGNMENT OF ERROR NO. 5

This assignment stems from the trial court’s overruling defendant’s objection to the admission into evidence of photographs of the victim’s face and head. The photographs depicted wounds requiring approximately 150 to 200 sutures. Defendant contends the pictures are irrelevant and have no probative value, since they were taken four days after the beating was inflicted.

The trial judge did not abuse his discretion in overruling defendant’s objection. The photographs of the victim’s face showed the jury the various wounds which were shown to have been inflicted during the course of the beating. Having been introduced for the purpose of illustrating this point to the jury, the pictures were of substantial probative value. We have reviewed the photographs and have determined they were not unduly prejudicial.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 6 and 7

These assignments complain of the trial court’s failure to direct a verdict of not guilty on its own motion, as allowed by La.C.Cr.P. art. 778, prior to its July, 1975 amendment. Defendant contends the trial court should have directed a verdict of acquittal because there was no proof a battery had been committed and no proof a dangerous weapon had been used. The basis of this argument is that defendant was acting in self defense and that the State failed to prove he used his steel-toed boots to inflict the injury.

For a reviewing court to reverse the trial court’s refusal to direct a verdict, it must appear from the record there was “no evidence” of the crime or of an essential element thereof. State v. Evans, 317 So.2d 168 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973). The issue of sufficiency of the evidence, as opposed to the question of total lack of evidence, is a matter for the jury’s resolution. Our review of the record shows there was evidence establishing the attack upon the victim was unjustified and that defendant used his steel-toed boots to commit the battery upon the victim.

These assignments have no merit.

ASSIGNMENT OF ERROR NO. 8

This assignment is based on a ruling allowing the State to cross-examine the defendant about a prior criminal conviction. Defendant argues, citing La.R.S. 15: 481, that this line of inquiry, designed to put his character at issue, is prohibited except in rebuttal of evidence produced by defendant to show good character.

The State properly argues that under La. R.S. 15:495 evidence of a prior criminal conviction is admissible for the purpose of impeaching the credibility of a witness.

The trial court’s ruling was correct and the assignment lacks merit.

Having found the assignments of error lack merit, we accordingly affirm defendant’s conviction and sentence.


author: TATE, J.,

text:
    STATE of Louisiana v. Edwin MOORE.
    No. 56427.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Edwin Moore applying for writs of certiorari, prohibition and mandamus.

Application denied.

TATE, J.,

dissents. The defendant, a 15-year-old juvenile, pleaded guilty to second degree murder, a non-capital offense. This voluntary plea, whatever its consequences and whatever the lack of jurisdiction of the district court to impose a penitentiary sentence on this juvenile, forbids his being tried again on the indictment for first degree murder, a capital offense. As the dissent in this case at 309 So.2d 675 (La.1975) shows, double jeopardy and due process principles prevent the relator’s successful annulment of an invalid penitentiary sentence by post-conviction proceedings to subject him now to trial for a capital offense. He cannot be punished more severely than before because of his invalidation of an illegal sentence.

DIXON, J., concurs in the denial for the reasons that jeopardy did not attach in the first trial, (C.Cr.P. 592) and even if convicted, applicant cannot receive a greater sentence than that previously imposed.

CALOGERO, J., dissents from the refusal to grant writs.


text:
    STATE of Louisiana v. Edwin MOORE.
    No. 57318.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Edwin Moore, applying for writs of certiorari, prohibition and mandamus.

Writ denied. See the Court’s action in No. 56,427, State v. Moore, La., 324 So.2d 388.

TATE, J.,

dissents for reasons assigned in Docket No. 56,427, January 7, 1976, 324 So.2d 388).

DIXON, J., concurs for reasons stated in No. 56,427.

CALOGERO, J., dissents from writ denial.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Osby BRYANT, Jr., et al.
    No. 56854.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.
    Billy R. Pesnell, John M. Madison, Jr., Sidney B. Galloway, Samuel P. Love, Jr., Shreveport, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

We granted writs in this case because it involved the same subject matter as that in several applications from another district in which conflicting rulings had been made.

Defendants, Osby Bryant, Jr., Billy George Payton, Willie Marie Washington and Leona Sadler, were charged with murder in an affidavit filed by the district attorney. The district judge appointed a lawyer to represent each defendant. Following the indictment of the defendants the lawyers appointed to represent them filed, on their own behalf and on behalf of the defendants, a motion to stay the prosecution and revoke the appointments, or, in the alternative, to order the State of Louisiana to pay the lawyers reasonable compensation for services to be rendered.

After a hearing on the motion it was denied, the court finding no merit in the principal demands and finding the alternative demands for compensation premature.

The motion argues, that the Louisiana indigent defender board statute (R.S. 15 :141, whose source was Act 366 of 1966) does not comply with Art. I, § 13 of the La. Const.; that defendants are deprived of their rights to effective assistance of counsel as guaranteed by Art. I, §§ 2 and 13 of the La. Const, of 1974 and the Fifth and Fourteenth Amendments of the Constitution of the United States; and that the lawyers are deprived of their rights to reasonable compensation under Art. I, § 13 of the La. Const. of 1974, which constitutes a taking of their property, involuntary servitude and a deprivation of equal protection in violation of the United States and Louisiana Constitutions.

Relator Madison argued that, although he has volunteered to serve on the panel of attorneys on the indigent defender board, he believes it is unable to pay him reasonable compensation.

I

The last argument can be disposed of first. The hearing on the motion developed the fact that the Caddo Parish Police Jury had never refused to pay any bill approved by the indigent defender board and the district court. There is no evidence which indicates that Mr. Madison will not be paid.

II

Further, there was no showing on the hearing of any possibility that these defendants will not be effectively represented by counsel skilled in the profession.

Ill

Next, we find it unnecessary to treat re-lators’ contention that uncompensated lawyers are deprived of property without due process and equal protection and are forced into involuntary servitude because, in brief, relators admit that the traditional and majority view does not support them (see State v. Clifton, 247 La. 495, 172 So.2d 657 (1965); Annotation, 21 A.L.R.3d 819. Relators contend, however, that changed conditions increase the confiscatory nature of the appointments.

First, we do not find that any of these relators will be uncompensated. One is on the volunteer panel, and there is no rule or provision obstructing his payment. The other three contend they will not be paid because, as developed on the hearing, the First Judicial District Court as a rule and practice does not certify for payment the services of lawyers not on the list of volunteers. At one time, when appointments were not so numerous, there might have been a valid reason for some such provision. However, when the need for appointed lawyers far exceeds the number of volunteers on the panel, the rule should be revised. The court has the inherent power to make appointments of lawyers not on the volunteer panel, and this power is specifically recognized in R.S. 15:141(G) and (I). R.S. 15:141 does not limit payment to appointed lawyers who are on the volunteer panel. If the district court should deny compensation to lawyers' because they are not on the volunteer panel, this court will be open to receive and consider a proper application for relief. (Here, the district court has simply denied relators’ claim because it is premature, no services having yet been rendered in the case).

As for changing conditions, this court knows of the increase in crime, the increasing difficulty of criminal practice, the necessity of appointing lawyers in misdemeanor cases as well as in felony cases, and can imagine the burden on some lawyers if the load is inequitably distributed. We also have firsthand knowledge of the tremendous increase in the number of lawyers in Louisiana and probably in Caddo Parish in the last few years. We are aware, in addition, that we seldom encounter, as appointed counsel, lawyers who are employed full-time by business enterprises or governmental agencies, or whose practice seldom carries them to the criminal courts. Relators, however, complain only that it is the bar, generally, which bears an inordinate proportion of society’s obligation; they do not complain that the individual lawyers before us are the victims of discrimination in appointment. Consequently, even if relators were not to be compensated, the record before us would not support a finding that changed conditions require the adoption of the proposition that forcing uncompensated lawyers to serve as counsel for indigents amounts to deprivation of property without due process, nor involuntary servitude.

IV

Relators’ principal argument is that existing legislation does not meet the constitutional requirements of Art. I, § 13 of the La. Const. of 1974:

“When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

The core of the argument is that the legislation for appointing and paying lawyers for indigents is not uniform.

At the outset, we note that, in the absence of any legislation, and regardless of any provision which might be in the Louisiana Constitution, the United States Constitution and decisions of the United States Supreme Court (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Argersinger v. Hamlin, 407 U. S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) ), would require the appointment of counsel for indigents accused of crime. We do not consider as seriously made the suggestion that we stay the prosecution until further legislative action.

In demonstrating the lack of uniformity of existing legislation, relators point out R.S. 15:141, 142, 143,145 and 868.

Only R.S. 15:145 was enacted subsequent to the effective date of the Constitution of 1974. R.S. 15:141 was last amended in 1972. R.S. 15:142 was added in 1972 and amended in 1974. R.S. 15:143 was added in 1974. R.S. 15:868 was 1956 legislation.

R.S. 15:142 and 145 provide for public defenders, in lieu of the indigent defendant boards of R.S. 15:141, for the Seventh, Eighteenth, Twenty-second, Eleventh and Thirteenth Judicial Districts. Except for the Thirteenth, these are multi-parish districts. R.S. 15:868 applies only to the appointment of attorneys to defendant inmates of the Louisiana State Penitentiary who are charged with crime in West Feli-ciana Parish, where the penitentiary is located — obviously a provision to satisfy a need peculiar to the area.

For all except five of the thirty-four judicial districts, therefore, R.S. 15:141 is applicable. The provisions of that statute are set out in the appendix to this opinion. Since relators were appointed and will be paid under the provisions of section 141, théy are entitled to no relief unless 15:141 is constitutionally deficient. To find section 141 unconstitutional, we must find, not that the legislature has not fulfilled the expectations of the Constitutional Convention, but that it conflicts with the Constitution.

“(A) Retention. Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation.
“(B) Expiration of Conflicting Law. Laws which are in conflict with this constitution shall cease upon its effective date.” (Art. 14, § 18, La.Const. 1974).
The only conflict argued is a lack of “uniformity.”

R.S. 15:141 by its terms applies to the whole State, including the Parish of Orleans. Every judicial district is required to establish an indigent defender board, under the supervision of the district court (or the criminal district court in Orleans Parish). The appointment of counsel is treated, provision for the funding and operation of an indigent defender fund is made, and payment from the fund is directed for necessary expenses in the preparation and trial of indigent defendants, including reasonable compensation to counsel.

Section I of R.S. 15:141 permits any judicial district to substitute for the indigent defender board a legal aid bureau or association, if it substantially complies with the act and is satisfactory to the district court.

The problem of “uniformity” was noted and discussed by Professor Lee Hargrave in 35 La.L.Rev. 1, at page 47:

“The final sentence, mandating the legislature to ‘provide for a uniform system for securing and compensating qualified counsel for indigents,’ was added by floor amendment. The committee proposal concentrated on establishing judicially enforceable rights and did not generally concern itself with mandates to the legislature which do not lend themselves to enforcement through judicial proceedings. However, the convention, in an effort to encourage more state efforts in this regard, adopted the mandate by an overwhelming 99-11 vote. In any event, though no enforceable device exists to require the legislature to adopt a system for securing and compensating counsel, the third sentence of the section is nevertheless enforceable by the courts so that no valid conviction can be obtained unless the right to counsel has been granted as required.
“The terms of the mandate may not be clear in the reference to a ‘uniform system.’ The natural meaning of the word would seem to require one standard system for the whole state. However, the author of the amendment, Delegate Thomas Velazquez, agreed with Delegate Walter Lanier’s appraisal of the provision that, ‘in other words, in Lafourche Parish if we wanted to have the indigent defense system we could have that, and in New Orleans if they wanted the public defender system they could have that providing there was uniform legislation establishing both systems.’ At the same time, other delegates questioned this construction and expressed the view that ‘uniform’ means identical throughout the state. Another delegate saw the mandate as related to a public defender system. Still another view reflects the historical development in Louisiana which considers legislation as uniform if it treats all cities within certain population classes equally. This last construction of the uniformity requirement would correspond with Article VI, § 3, which allows the legislature to ‘classify parishes or municipalities according to population or on any other reasonable basis related to the purpose of the classification’ and to limit legislation to any such class or classes.”

The author of the amendment to Art. I, § 13 containing the words “uniform system” was not a lawyer. We have read the debate at the Constitutional Convention when the amendment was adopted (State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts Sept. 7, 1973 at 39), and are not convinced that the delegates who spoke on the amendment intended that the “system” be “uniform” except in furnishing “qualified counsel for indigents.” Such an interpretation, which at first seems to disregard the clear meaning of words, was not an unnatural concept to delegates whose task often required them to balance the needs for uniformity against the need for workability in a State with political subdivisions of widely varying population, geography, customs and problems. See, for example, the definition of “general law” in Art. 6, § 44 of the La. Const. of 1974, defined in part as being “uniformly applicable to all persons.” It was the application of the amendment to all indigent defendants which was of primary concern to most of those who debated the amendment at the Constitutional Convention.

We could not, even in the absence of a record of the Convention debates, hold that R.S. 15:141 so lacked uniformity that it violated the constitutional requirement. Nor could we say that the lack of uniformity was so clear to the legislature that it capriciously abdicated its responsibility under the constitutional mandate. Short of such a finding, or a finding of the existence of such exigent emergent conditions that extraordinary measures were required by this court, we could not grant to relators the relief sought.

For these reasons, the judgment of the district court is affirmed.

APPENDIX

R.S. 15:141

§ 141. Indigent defender boards

A. Each judicial district (including the parish of Orleans) shall establish an indigent defendant board, which shall have the duty of providing adequate legal representation of indigent persons who are charged with commission of felonies or of state misdemeanors punishable by imprisonment or who are alleged to be delinquent juveniles.

Amended by Acts 1972, No. 736, § 1.

B. Each indigent defendant board shall be composed of no less than three and no more than five members, who shall be attorneys licensed to practice in this state and qualified voters in the judicial district, appointed by the district court (in Orleans parish, the criminal district court) for such terms as the court may fix, not to exceed three years each. The members of the indigent defender board shall serve without compensation.

C. The indigent defender board shall establish and maintain a panel of volunteer attorneys licensed to practice in this state, from among whom the board shall furnish counsel to defend indigent persons who are entitled under this section to appointed counsel. When the accused is charged with commission of a capital offense, the attorney furnished by the board shall have been admitted to the bar for at least five years. An attorney with less experience may be assigned as assistant counsel. Amended by Acts 1972, No. 736, § 1.

D. The district court (in Orleans parish, the criminal district court), shall exercise general supervision over the indigent defender board and shall, upon consultation and advice of the board, adopt reasonable rules and regulations relating to the duties of the board, including:

(1) The selection of counsel to serve on the defender panel and to serve in individual cases.

(2) The determination of reasonable compensation to counsel when funds are available.

(3) The determination of the indigency of the accused.

E. The attorney who undertakes the representation of an accused through the indigent defender board shall counsel and defend the accused at every stage of the proceedings thereafter and shall prosecute any appeals or other remedies before or after conviction which he considers to be in the interest of justice.

F. Whenever an accused charged with commission of an offense other than a capital offense shall have declared under oath that he desires counsel but is financially unable to procure counsel, the court shall refer the accused to the indigent defender board and the board shall provide for representation of the accused by counsel in accordance with the provisions of this section. The board may traverse the declaration of the accused by motion and hearing, and if the court finds the declaration not to be true, the board shall be relieved of further responsibility to provide counsel. If an accused without counsel is charged with a capital offense or if the question of his mental capacity to proceed is raised the court shall refer the accused to the board, and the board shall provide representation, regardless of the means of the accused.

Amended by Acts 1972, No. 736 § 1.

G. Counsel assigned by the indigent defender board, after a referral by the court, shall be considered as having been assigned by the court. If the board fails to assign counsel within seven days after referral of the case by the court, the court shall appoint qualified counsel to represent the accused. In any case, upon application of the accused or upon its own motion, the court may, in its discretion, appoint an attorney to represent the accused in substitution of the attorney assigned by the board under its regulations.

H. In all criminal cases in any court of the state of Louisiana, under any offense proscribed by any state statute contained in Title 14 of the Louisiana Revised Statutes of 1950 there shall be taxed as costs against every defendant who is convicted after trial or after a plea of guilty or who forfeits his bond, the sum of three dollars (in Orleans Parish, the sum of ten dollars), in addition to all other fines, costs of forfeitures lawfully imposed. The same additional costs of three dollars may be taxed against every defendant who is convicted after trial or after a plea of guilty or who forfeits his bond in connection with any other criminal offense, provided, however, in Orleans Parish the additional costs of ten dollars may be taxed against every defendant who is convicted after trial or after a plea of guilty or who forfeits his bond in connection with any other criminal offense, except a traffic violation where the additional costs shall be three dollars. The proceeds from these costs shall be retained by the parish treasurer (in Orleans Parish, the department of finance for the city of New Orleans) in a special fund to defray the expenses of the indigent defender board (in Orleans Parish, seven dollars of the ten dollars shall be retained by the auditor of the criminal district court for the indigent transcript fund and be dedicated specifically to the payment of all transcripts prepared for indigent defendants, including transcripts of trials, motions, hearings on writs, bills of exceptions, and all court proceedings). Payment shall be made from the fund by the parish treasurer, upon order of the court, for necessary expenses incurred in preparation and trial of cases, including cost of transcription, and for reasonable compensation to counsel for indigent defendants. The parish governing authority may, at the end of the fiscal year, transfer any surplus in the indigent defender fund and the indigent transcript fund into the parish general fund, and may meet any deficit in the indigent defender fund and the indigent transcript fund by payment from the parish general fund.

Amended by Acts 1967, No. 126, § 1; Acts 1968, No. 448, § 1; Acts 1972, No. 736, § 1; Acts 1973, No. 152, § 1.

I. In each judicial district of the state (including the parish of Orleans) wherein the functions of an indigent defender board, as herein defined, are being performed by a legal aid bureau or legal aid association in a manner substantially complying with the provisions of this Section and satisfactory to the district court (in Orleans parish, the criminal district court) such court may by rule (adopted en banc in multiple-judge courts) designate such legal aid bureau or legal aid association as the indigent defender board of such district (including the parish of Orleans) and order the payment monthly to such legal aid bureau or legal aid association of the proceeds in the special fund herein provided for to assist in paying the costs of its operation. The adoption of such rule shall in no way affect the court’s right to appoint counsel to indigent defendants in specific cases and to provide for the payment of his approved fees and expenses out of such fund. The court may re-examine such rule from time to time and revoke or amend it in its discretion.

J. This Section shall in no way repeal or supersede the provisions of R.S. 15 :868. All other laws or parts of laws in conflict herewith are hereby repealed. Acts 1966, No. 366, §§ 1-10.


text:
    STATE of Louisiana v. Isaac CAMPBELL, Sr. STATE of Louisiana v. Joseph P. PHILLIPS, Jr. STATE of Louisiana v. Isaac CAMPBELL, Sr. and Joseph P. Phillips, Jr.
    Nos. 56763, 56765, 56766.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Edward F. Glusman, Baton Rouge, for Isaac Campbell, Sr.
    Wray & Robinson, Bert K. Robinson, Baton Rouge, for Joseph P. Phillips, Jr.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., for the State.
    Joseph F. Keogh, Parish Atty., Samuel R. Cicero, Asst. Parish Atty., for City of Baton Rouge.
   DIXON, Justice.

These applications are among several granted to consider rulings made concerning payment of counsel appointed to defend indigents.

In No. 56763, Isaac Campbell, Sr. was charged with murder and the Office of Public Defender was appointed to represent him. After some proceedings in the case, the Public Defender was relieved, and Edward Glusman and MacAllynn J. Achee were appointed to represent Campbell.

In No. 56765, Joseph P. Phillips, Jr. was charged with, simple robbery. The Office of Public Defender was appointed to represent him, but was later permitted to withdraw; Bert K. Robinson was appointed to represent him.

Identical motions were filed in each case by appointed counsel, and heard and decided together by the trial court. The motions prayed that counsel be allowed to withdraw as “uncompensated counsel that counsel be paid reasonable compensation at the conclusion of the appointment, and be compensated for expenses paid; and that an investigator and doctor be provided defendants.

In its judgment on the motions the trial court denied the motion to withdraw and denied the prayer for payment by attorneys Robinson and Glusman. Achee was granted a “declaratory judgment” against the City and Parish of East Baton Rouge for attorneys’ fees to be fixed by the Indigent Defender Board. (The city and parish were to pay if the board determined that it could not). The defendants were denied the appointment of an investigator and doctor, provided that the court would appoint a doctor on a proper, subsequent showing, to be paid by the city and parish.

In No. 56763 (State v. Campbell), Glusman applies for writs.

In No. 56765 (State v. Phillips), Robinson applies for writs.

In No. 56766, the City of Baton Rouge and Parish of East Baton Rouge apply for writs in both State v. Campbell and State v. Phillips.

The trial judge was correct in denying the motions of counsel to withdraw. The court has the inherent power to appoint lawyers to represent indigents, and the duty of the lawyer to serve is both traditional and specific. The Code of Professional Responsibility provides, in Canon 2, Ethical Consideration, 2-25:

“Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services, and other related programs have been developed, and others will be developed, by the profession. Every lawyer should support all proper efforts to meet this need for legal services.”

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), if nothing else, make the appointment of counsel for indigent defendants essential.

Robinson and Glusman are not on the panel of volunteers maintained by the Indigent Defender Board. For that reason alone we gather the trial judge ruled against them on their prayer for payment under the erroneous belief that R.S. 15:141 prohibited payment from the indigent defender fund except to volunteer members of the panel.

With this interpretation of R.S. 15:141 we cannot agree. Subsections G and I of 15:141 recognize the power of the court to appoint lawyers not on the panel. Subsection H (and I when applicable) provides for payment to appointed lawyers from the fund, as well as other necessary expenses. The statute does not limit payment to lawyers who are on the panel of volunteers. See State v. Bryant et al., La., 324 So.2d 389, this date decided.

Nor do we agree with the decision of the trial court to cast the City of Baton Rouge and the Parish of East Baton Rouge for payment of that part of the fee of Achee which is not paid from the indigent defender fund.

The ruling anticipates that the indigent defender fund will be insufficient to meet the fees to be fixed. The city-parish resists because of budgetary and fiscal reasons: it is required to budget and appropriate any funds to be expended.

It is true that R.S. 15:141 does not by its specific terms require, but only permits the parish to “meet any deficit in the indigent defender fund” R.S. 15:141 H. This is the source of the strong contention that the legislature has not met its constitutionally required task of providing a “uniform system for securing and compensating qualified counsel for indigents.”

We do not conclude that funding for indigent defenders is solely a State obligation. The State has full power, and more than one option, to provide for funding. Until this point, however, the statutes have placed the burden on the parish, but have refrained from making it mandatory, in order to give the parish governing authority as much latitude as possible in administering public funds in unforeseeable circumstances.

The city-parish does not plead poverty, but only that fiscal legislation prohibits payment from current funds. Without deciding that proposition, we merely note that only time is involved, and a future budget and a future appropriation can adequately provide for claims against the indigent defender fund which mature during the current fiscal year.

Nor do we decide that in an appropriate proceeding, under appropriate circumstances, the district court would lack the power to require a particular subdivision, or the State itself, to provide for payment of necessary expenses, including counsel fees, for the trial of indigent defendants. This case can be decided before that point is reached.

For these reasons we decide:

In State v. Campbell, No. 56763, and State v. Phillips, No. 56765, the judgment of the trial court is affirmed in its refusal to permit the withdrawal of counsel, and refusal to appoint an investigator and doctor, but amended to permit the compensation of counsel for fees and necessary expenses under R.S. 15:141, as fully as if counsel were listed on the panel of volunteers.

In State v. Campbell and State v. Phillips, No. 56766, that part of the judgment of the district court which orders the City of Baton Rouge and the Parish of East Baton Rouge to pay that portion of the attorneys’ fee not paid from the indigent defender fund is reversed and set aside, reserving to the attorneys involved the right to take further appropriate action in the event the fee is not paid from the indigent defender fund and in the event any deficit in the fund is not met by the “parish governing authority,” per R.S. 15 :141 H.


text:
    STATE of Louisiana v. Denver JACKSON.
    No. 56764.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Wray & Robinson, MacAllynn J. Achee, Baton Rouge, for Denver Jackson.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., for the State.
   DIXON, Justice.

MacAllynn J. Achee, appointed to represent the indigent defendant, filed a motion to withdraw as counsel and for a judgment against the State of Louisiana declaring that counsel shall be paid a fee and expenses, and that defendant be provided an investigator and a medical doctor at no expense. The motion assumes that counsel will not be paid.

The trial judge denied the motion, and on application of the attorney we granted writs.

The trial judge was correct when he refused to issue a declaratory judgment in a summary proceeding in a criminal case. See State v. Carruth, La., 324 So.2d 400, decided this date. Nor has any showing been made to warrant either the motion to withdraw or the motion to appoint an investigator and a medical doctor. Furthermore, there exists statutory material governing the appointment and compensation of attorneys to represent indigent defendants. R.S. 15:141. We know of no impediment to the payment of assigned counsel under the provisions of R.S. 15:141. See State v. Bryant et al., La., 324 So.2d 389, decided this date.

The judgment of the trial court is affirmed.


text:
    STATE of Louisiana v. Ernest WELLS.
    No. 56767.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Ralph Brewer, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

The defendant, through his court appointed counsel Ralph Brewer, filed a motion to quash and/or petition for a writ of habeas corpus, alleging that the appointment of counsel without compensation deprives an indigent of his right to effective assistance of counsel and the attorney of his property without due process of law, in violation of the federal and state constitutions.

The trial judge denied the motion to quash and/or petition for a writ of habeas corpus, and we granted writs.

There is nothing in the record before us to show that defendant’s lawyer will not or cannot be paid. There is no order prohibiting payment. The rules of court in the record do not prohibit payment. R.S. 15:141 does not prohibit payment. See State v. Bryant et al., La., 324 So.2d 389, decided this date.

In brief, the argument is made that the system for providing counsel for indigents is “inadequate.” That may be true, or it may be that the “system” complained of is not properly and efficiently managed and supervised. Nevertheless, there is no showing of any possibility that defendant will not be represented by skilled and diligent counsel. The trial court was correct in recalling the writ of habeas corpus and denying the motion to quash.

Therefore, the judgment of the trial court is affirmed.


text:
    STATE of Louisiana v. Donald CARRUTH.
    No. 56768.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, L. J. Hymel, Jr., Asst. At-tys. Gen., Della H. Boyd, Staff Atty., Baton Rouge, Ossie Brown, Dist. Atty., for plaintiff-relator.
    Wray & Robinson, Bert K. Robinson, Baton Rouge, for defendant-respondent.
   DIXON, Justice.

After his client was sentenced, Bert K. Robinson, who had been appointed to represent the indigent defendant, moved the court to fix his fee and tax it as costs to be paid by the State of Louisiana, Parish of East Baton Rouge and City of Baton Rouge. The attorney’s fee was fixed at $1000.00 and a “judgment” was signed in favor of Robinson and against the State of Louisiana. We granted writs on application of the State.

There is nothing in the record before us applicable to the question presented except the motion of the attorney, the “judgment” and the brief of the attorney. The brief is not (nor should it be) factually informative. Its theme is that lawyers for indigents should be paid. We agree.

However, we are cited to no authority permitting a summary proceeding against the State in a criminal case resulting in a judgment against the State. Were there no statutory device for compensating ap-; pointed lawyers, extraordinary judicial measures in aid of the jurisdiction of the court might be required. There is, however, statutory material governing the appointment and compensation of attorneys appointed to represent indigent defendants. R.S. 15:141. See State v. Bryant et al., La., 324 So.2d 389, decided this date.

The judgment of the district court of August 1, 1975 is reversed.


text:
    STATE of Louisiana v. George CUMMINGS, Sr.
    Nos. 56780, 56815.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Mac Allynn J. Achee, Bert K. Robinson, Wray & Robinson, Baton Rouge, for defendant-relator in No. 56780 and for defendant-respondent in 56815.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., for plaintiff-respondent in 56780; and for plaintiff-relator in 56815, in addition to L. J. Hymel, Jr., Asst. Atty. Gen., for plaintiff-relator in 56815.
   DIXON, Justice.

Bert K. Robinson, appointed to represent the indigent defendant, filed a motion to withdraw as counsel and for a judgment against the State of Louisiana declaring that counsel should be paid a fee and expenses, and that defendant be provided an investigator and a medical doctor at no expense. The motion assumes that counsel will not be paid because he was not on the volunteer panel provided for in R.S. 15:141.

In an “order and judgment” the trial judge ordered the petition for declaratory judgment dismissed without prejudice, and then proceeded to “rule” that R.S. 15:141 did not meet the constitutional mandate (Art. I, § 13, La.Const. 1974) that the legislature provide for “a uniform system for securing and compensating qualified coun-ever, State v. Bryant et al., La., 324 So.2d 389, decided this date.

The trial judge also ruled that the duty to compensate appointed counsel was a State, not a local, government obligation, and that the court would, on a “case-by-case basis” fix attorneys’ fees and expenses incurred representing indigent defendants and order the State Treasurer to pay.

On the application of the State in No. 56815, and on the application of the attorney Bert K. Robinson in No. 56780, we granted writs.

Robinson complained of the denial of his motion to withdraw, the declaratory judgment and the motion for appointment of an investigator.

The trial judge was correct when he refused to issue a declaratory judgment in a summary proceeding in a criminal case. See State v. Carruth, La., 324 So.2d 400, decided this date. Nor has any showing been made to warrant either the motion to withdraw or the motion to appoint an investigator.

Nor is there anything in the record, except the opinion of the trial judge that the obligation to pay counsel for indigents is a State, not local obligation, to support his intention expressed in the “order” to cast the State and order the Treasurer to pay attorneys’ fees and expenses.

The “order”, therefore, insofar as it may be more than an expression of the trial judge’s opinion, cannot stand.

The “order and judgment on rule” dated July 30, 1975 is therefore vacated and annulled, insofar as it purported to cast the State of Louisiana and the Treasurer of the State of Louisiana.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Johnnie Lee ROGERS.
    No. 56573.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      C. Jerome D’Aquila, New Roads, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Cashio, Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Johnnie Lee Rogers was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged. Subsequently, he was sentenced to serve twenty-five years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, he relies upon sixteen bills of exceptions for reversal of his conviction and sentence.

FACTS

On March 13, 1973 at approximately 10:00 a. m., Edward G. Stuard, a Louisiana state policeman, received a call on his patrol car radio informing him that the Livonia branch of the Guaranty bank had just been robbed by two black males. Trooper Stuard at once drove to the For-diche Highway, intending to encounter the robbers en route from the town. He observed an oncoming vehicle driven by defendant, a black male, traveling at a high rate of speed. He turned his vehicle around, switched on his red lights and began to follow the car, which then pulled off the road. Defendant got out of the car and was ordered to stand against it with his hands on top of the car. Defendant was asked whether he had a driver’s license and he replied in the negative. While standing outside the automobile and looking through the glass, the trooper observed, in plain view, a twenty-dollar bill crumpled in the car ashtray and a ten-dollar bill on the seat. Defendant was advised that he would be arrested for operating a vehicle without a driver's license and was also given his Miranda warnings. Upon being questioned concerning the bank robbery that had just taken place in Livonia, defendant insisted that he was innocent of any wrongdoing and, to prove this to the trooper, asked him to search the car so that he could see for himself that there was no weapon inside of it. Trooper Stuard conducted a preliminary, or “surface,” search of the automobile and discovered a ten-dollar bill in the glove compartment. He then placed defendant under arrest, handcuffed him, searched his person, and found a wallet that contained about $500.00 in ten-dollar bills. The bills in defendant’s wallet happened to be “bait” money, i. e., the serial numbers of the bills had been recorded by the bank that had been robbed. Trooper Stuard, calling the sheriffs officer on his radio, ascertained that the serial numbers of the bills in defendant’s wallet matched those recorded by the bank. At that point, he requested the assistance of FBI agents who arrived to question defendant further.

BILLS OF EXCEPTIONS NOS. 1, 8 AND 17

(Reserved During Hearing on Motion to Suppress )

At the hearing on his motion to suppress evidence seized in his automobile and on his person, defendant attempted to call Trooper Stuard, FBI Agent London M. Howard, and Deputy Sheriff Ray Pourciau to the witness stand for the purpose of cross-examination. Defendant reserved these bills to the trial judge’s ruling that they were not subject to his cross-examination because they were his own witnesses.

In State v. Brent, 248 La. 1072, 184 So.2d 14, cert. denied, 385 U.S. 992, 87 S.Ct. 605, 17 L.Ed.2d 452 (1966), and State v. Bush, 297 So.2d 415 (La.1974), we held that an accused does not have the right to call a witness under cross-examination in a criminal prosecution. As we stated in Brent and Bush, a witness called by defendant before he is called by the state becomes defendant’s witness. We believe that the prohibition against calling one’s own witness under cross-examination is applicable to a hearing on a motion to suppress. Accordingly, there is no merit in these bills.

BILL OF EXCEPTIONS NO. 7

(Reserved During Hearing on Motion to Stippress)

This bill was reserved when , the trial judge refused to rule that the testimony of FBI Agent Elmer B. Litchfield, whom defendant called to the stand, was subject to impeachment,

La.R.S. 15:487 and 488 provide as follows:

La.R.S. 15 :487.
No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.
La.R.S. 15:488:
‘Surprise’ in the sense of the last preceding article does not arise out of the mere failure of the witness to testify as expected, but out of his testifying upon some material matter against the party introducing him and in favor of the other side.

Therefore, defendant was not permitted to impeach his own witness unless (1) the witness’ testimony took him by surprise; or (2) the witness proved to be hostile. Defendant contends that the surprise occurs, within the meaning of La.R.S. 15 :488, whenever the witness testifies upon some material matter against the party introducing him and such testimony is favorable to the other side. Defendant ignores, however, the part of the statute’s definition of surprise, which states that the witness must fail to testify as expected. Although Agent Litchfield’s testimony was, arguably, materially adverse, defendant makes no showing that such testimony was unexpected since the testimony, although slightly at variance with prior statements on one point, was not sufficiently contrary to justify impeachment.

Moreover, defendant makes no showing that Agent Litchfield was a hostile witness. From our review of the record, we conclude that he was a wholly cooperative witness and that he readily answered all questions in a straightforward manner. Since defendant made no showing that the witness was hostile or that his testimony took him by surprise, the judge correctly ruled that it was improper for defendant to attempt to impeach his own witness. La.R.S. 15:487. See State v. Mims, 263 La. 193, 267 So.2d 570 (1972). This bill has no merit.

BILL OF EXCEPTIONS NO. 14

(Reserved During Hearing on Motion to Suppress)

Defendant attempted to cross-examine Agent London M. Howard, whom defendant had called to the stand. When the state objected, the trial judge prevented him from doing so. Defendant then asked the trial judge to rule that Agent Howard was a hostile witness so that defendant could cross-examine him. Upon the trial judge’s refusal, this bill was reserved.

Defendant makes no showing that this witness was hostile. Defendant’s only complaint regarding this witness was that he limited his answers to the questions specifically asked of him. As the trial judge stated: “Well, the fact that a witness answers a question in a legal precise manner doesn’t indicate hostility. [T]he ideal witness is the witness who only answers the questions that are asked him.” Hence, the trial judge correctly ruled that this witness was not hostile. Defendant alleges in brief that Agent Howard’s testimony was contrary to his previous testimony at a preliminary hearing. The record clearly shows that defendant did not make this contention at the time he sought to impeach this witness. Hence, there was no showing of surprise. In sum, the trial judge correctly ruled that defendant could not impeach his own witness. La.R.S. 15:487. This bill is without merit.

BILL OF EXCEPTIONS NO. 13

(Reserved During Hearing on Motion to Suppress)

In this bill, defendant alleges that the trial judge erred in permitting the prosecution to ask Agent Howard whether, in his opinion, defendant’s written confession was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Defendant contends that the question was improper because it called for an opinion on the part of the witness.

As a general rule, a witness is ordinarily incompetent to give opinion testimony. La.R.S. 15:463 provides:

Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.

It is nonetheless well settled that, in exception to the rule of La.R.S. 15:463, a witness may state a natural inference from facts that he has observed. State v. Davalie, 313 So.2d 587 (La.1975); State v. Kirklin, 283 So.2d 713 (La.1973). However, it is necessary that the witness state the basic facts upon which the inference was based. State v. Lewis, 288 So.2d 324 (La.1974).

In the instant case, Agent Howard himself secured the written confession from defendant. He personally observed his signing of the confession and was therefore competent to testify whether he offered any promises or made any threats in order to obtain it. Voluntariness of the confession was a natural inference that he could draw from the absence of promises or threats. Howard, in response to questions propounded by the prosecution, stated all the facts surrounding the securing of the confession from which he concluded that it was freely and voluntarily made. This bill therefore lacks merit.

BILL OF EXCEPTIONS NO. 22

(Reserved During Hearing on Motion to Suppress)

Defendant took the witness stand to testify at the hearing on the motion to suppress. On direct examination, he stated that he had spent a period of time at the state reformatory in Scotlandville. On cross-examination, the prosecution asked defendant why he had been sent there. Defendant reserved this bill when the trial judge overruled his objection to this question.

It is defendant’s contention that the state, in asking him the reason he was sent to a reformatory, sought to elicit evidence of prior arrests or criminal proceedings that did not result in convictions. Under La.R.S. 15:495, only evidence of prior convictions is admissible for purposes of impeaching the credibility of any witness, including that of a defendant who takes the stand, on cross-examination.

Defendant’s contention has no substance. Defendant himself testified on direct examination that he had been sent to Scot-landville. The questions of the state, following the overruling of defendant’s objection, were directed to whether defendant had been sent to the reformatory in order to go to school and the extent of his education there. Defendant’s literacy was at issue in the case. Thus, it was relevant on cross-examination for the state to inquire into these matters. At no point in the cross-examination did the state inquire of defendant the nature of the offense that caused his assignment to Scotlandville. Under La.R.S. 15:280, when a witness has testified to any single fact in his examination in chief, he may be cross-examined upon the whole case. State v. Cordier, 297 So.2d 181 (La.1974); State v. Vassel, 285 So.2d 221 (La.1973). Hence, this bill is without merit.

BILL OF EXCEPTIONS NO. 24

(Reserved During Hearing on Motion to Suppress)

BILLS OF EXCEPTIONS NOS. 11 AND 12

(Reserved During Trial)

Defendant moved to suppress written and oral inculpatory statements that he made to Trooper Stuard and to agents of the Federal Bureau of Investigation. The trial judge ruled that the inculpatory statements were freely and voluntarily made and denied the motion. At trial, defendant’s objection to the admission in evidence of his written confessions were likewise overruled. Defendant reserved these bills to the rulings of the trial judge and adopts the same argument in support of both.

On a trial of a motion to suppress evidence, the state has the burden of proving that a purported written confession or written inculpatory statement was made freely and voluntarily and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.Code Crim.P. art. 703(C) (1966). Likewise, before a confession can be introduced in evidence, the state must make the same affirmative showing. La.R.S. 15:451 (1966).

On the night of May 4, 1973, while defendant was incarcerated in the parish jail, Agents Litchfield and Howard presented to him a printed form fully advising him of his fifth amendment rights (S-11). See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the bottom of the form is a paragraph entitled “Waiver of Rights,” with a space for defendant’s signature. Although defendant did not sign this form, it is stated thereon that: “Rogers read this form, stating he understood it, but did not desire to sign anything.” This statement is corroborated by the testimony of Agents Litchfield and Howard who both testified to the same effect. Thereafter, defendant gave an oral statement to Agents Litchfield and Howard admitting his part in the bank robbery.

On May 7, 1973, defendant was again presented with a printed form advising him of his Miranda rights and containing a section providing for waiver of these rights. This time, he signed the form (S-10). He then signed a six-page statement, written by Agent Howard, in which he recounted the events of the robbery and confessed his participation (S-1S). Agents Howard and Litchfield were witnesses to his signing of the statement. They both testified that defendant read the statement after it was completed. Agent Howard stated that he also read the statement to him in its entirety and, prior to signing the last page, defendant wrote in his own handwriting: “I have read this six-page statement and it is true and correct to the best of my knowledge.” On the following day (May 8), defendant also signed a one-page statement that inculpated an accomplice in the robbery (S-16). Agent Howard and Deputy Sheriff Arnold F. Hess were present at the time. Agent Howard testified that he orally advised him of his Miranda rights on this occasion. Deputy Sheriff Hess corroborated Agent Howard’s testimony that the latter gave defendant his Miranda warnings before defendant made the statement.

Defendant advances essentially three arguments in support of his contention that the inculpatory statements were not freely and voluntarily made. First, he alleges that he was not informed of his Miranda rights before making the statements because he could not read the “Advice of Rights” form handed him. This argument is insubstantial. Defendant testified at the hearing on the motion to suppress. He admitted that he could write but denied that he could read. The trial judge properly gave little weight to this assertion. Defendant had an eighth-grade education. When asked to read the forms advising him of his constitutional rights, he gave all indications that he could do so. It was also established that he wrote letters to relatives while in jail. His testimony that he was illiterate was clearly self-serving and was contradicted by the weight of the evidence.

Second, defendant argues that the incul-patory statements were obtained by a promise that state charges would be dropped by the district attorney. Defendant testified at the hearing on the motion to suppress that Agent Howard told, him charges would be dropped under the Louisiana armed robbery statute and would be brought only under the federal bank robbery statute, which imposes a lesser maximum sentence. Although Agent Howard testified that he did inform defendant of the penalty for his offense under both federal and state law, he also testified that such an explanation was standard procedure and was not given in connection with any promise or inducement whatsoever. Defendant’s testimony that he was induced to sign the inculpatory statements because he was led to believe that a “deal” was in the making with state authorities was uncorroborated and was unequivocally contradicted by Agent Howard and all other federal and state officials. Further, defendant offered no evidence that the district attorney was a party to the alleged arrangement. His consent would have been necessary for a dismissal of state charges. La.Code Crim.P. art. 61 (1966).

Third, defendant avers that Agent Howard’s promise that a federal charge of possession of an illegal weapon against him and his commonlaw wife would be dropped if he confessed to participation in the bank robbery. Agent Howard, testifying at the hearing on the motion to suppress, strongly denied this allegation. Moreover, it was not corroborated by any other witness.

Upon reviewing the testimony of the witnesses at the motion to suppress, we believe, as did the trial judge, that the state satisfied its burden of proving that all in-culpatory statements were made freely and voluntarily and were not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.Code Crim.P. art. 703(C) (1966). Consequently, the trial judge correctly denied the motion to suppress. For similar reasons, the confessions were properly received in evidence at trial. La.R.S. 15:451 (1966).

Finally, defendant’s oral statements made to Trooper Stuard before he was placed under arrest and given his Miranda warnings were totally unrelated to the charge of armed robbery nor were they obtained at a time when defendant was under “custodial interrogation.” Rather, the questions were merely asked at a stage of preliminary investigation. See State v. Roach, 322 So.2d 222 (La.1975).

Defendant next contends that the incul-patory statements, even if made freely and voluntarily, are inadmissible because they are tainted by an unlawful arrest. It is urged that Trooper Stuard arrested him without probable cause and that these statements are the fruits of that arrest. He relies on the recent decision of the United States Supreme Court in Brown v. Illinois, 42 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Reviewing the sequence of events that led to his arrest, we believe that defendant’s contention has no substance. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the United States Supreme Court stated:

In Terry this Court recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” [citation omitted] The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. [citation omitted] A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time, [citations omitted]

See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Jefferson, 284 So.2d 882 (La.1973).

Applying the standards set forth in Adams v. Williams and Terry v. Ohio to the facts of this case, we conclude that Trooper Stuard was justified in stopping defendant’s vehicle for investigatory purposes. Trooper Stuard was informed that two black males had just robbed a Livonia bank. He witnessed a speeding vehicle driven by a black male en route from the town soon after he received this information. Trooper Stuard therefore had reasonable cause to make an investigatory stop of the vehicle, even though probable cause might not have existed at that point in time for defendant’s arrest.

Having made a lawful, investigatory stop, Trooper Stuard witnessed, through the car window, in plain view, loose paper money in defendant’s car. The “plain view” doctrine was therefore applicable. It is settled that objects falling within the plain view of an officer who had a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The “plain view” doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

We believe that his observation of the loose bills lying in the car in suspicious circumstances, together with his knowledge of the armed robbery that had so recently taken place, gave Trooper Stuard probable cause to arrest defendant. Accordingly, his inculpatory statements were not tainted by an unlawful arrest. These bills are therefore without merit.

BILL OF EXCEPTIONS NO. 25

(Reserved During Hearing on Motion to Suppress)

Defendant filed a motion to suppress the tangible evidence seized from his person and automobile on the ground that the items were seized in violation of his fourth amendment rights. This bill was reserved to the trial judge’s denial of this motion.

At the trial of a motion to suppress evidence other than a written confession or written inculpatory statement, the burden is on the defendant to prove the grounds of his motion. La.Code Crim.P. art. 703(C) (1966).

Contending that Trooper Stuard’s initial investigatory stop of his vehicle was unlawful, defendant urges that, as a result, all evidence seized in connection therewith should have been suppressed. The contention that Trooper Stuard’s investigatory stop was unlawful was discussed and rejected in our disposition of Bills of Exceptions Nos. 24 and 11, and hence has no merit.

The first search of defendant’s vehicle occurred after Trooper Stuard observed the two bills in defendant’s car. As stated previously, these items were in the officer’s “plain view” and he had a legitimate right to have that view. Therefore, they were subject to seizure without a search warrant. Coolidge v. New Hampshire, supra; State v. Hargiss, 288 So.2d 633 (La.1974). Trooper Stuard testified that his “surface” search of the vehicle, during which another bill was located in the glove compartment, was conducted pursuant to defendant’s free and uncoerced verbal consent. A valid search or seizure may be made without a warrant where the accused consents to such a search or seizure. State v. Sears, 298 So.2d 814 (La.1974); State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968).

The next search occurred when Trooper Stuard, after placing defendant under arrest, searched his person and seized his wallet, which contained about $500.00 in “bait" money. In our treatment of Bills of Exceptions Nos. 24, 11 & 12, we stated that Trooper Stuard had probable cause to arrest defendant. The search of defendant’s person, occurring immediately thereafter, was clearly incident to this lawful arrest. No warrant was necessary for this search; a search incident to a lawful arrest is an exception to the warrant requirement of the fourth amendment. State v. Hargiss, supra.

Defendant was again searched by Deputy Sheriff Pourciau, accompanied by Trooper Stuard, on the day after his arrest while he was incarcerated in the parish jail. Deputy Pourciau testified that the purpose of the search was to disclose the existence of dangerous weapons or other contraband on his person. The search was in accordance with the sheriff’s department’s usual practice of searching ar-restees for keys, guns, knives, drugs, or other contraband. Instead, Deputy Pour-ciau happened to discover $480.00 in twenty-dollar bills in defendant’s pants pockets. He checked the serial numbers on these bills against the list of numbers supplied by the Guaranty bank and ascertained that they matched. The trial judge properly refused to suppress this evidence. Searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. Both the arres-tee’s person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place, and, if evidence of crime is discovered, it may be seized and admitted in evidence. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

The final seizure at issue is that of the items discovered in defendant’s automobile pursuant to a consent search. A search that is conducted pursuant to a consent is one of the specifically established exceptions to the requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Following his arrest, defendant’s vehicle was towed to the parish courthouse. While in the company of the federal agents in the courthouse, defendant was approached by Agent Delbert W. Hahn. At the hearing on the motion to suppress, Agent Hahn testified that he asked defendant for his consent to search the car. After defendant indicated that his consent would be given, Agent Hahn told him that he was presenting him with a consent-to-search form. Voicing no objections, defendant read and signed the form. Agents Litchfield, Hahn and Wood then proceeded to conduct a search of defendant’s vehicle, which was parked outside the courthouse. Three currency bills, a bank money wrapper, and some clothing were seized. Agent Hahn testified that no threats, promises, or inducements were used to obtain the signature, and defendant does not allege to the contrary. He contends, however, that the consent was invalid because Agent Hahn did not inform him that he had a constitutional right to refuse his consent. This contention was rejected by the United States Supreme Court in Schneckloth, which held that voluntariness of consent is a question of fact to be determined from all the surrounding circumstances. While defendant’s knowledge of the right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. In this case, defendant introduced no evidence tending to show that his signature on the written consent form was the result of any form of coercion or promise. On the contrary, the facts in this case, as set forth above, clearly disclose the giving of a free and voluntary consent.

In sum, defendant failed to satisfy his burden of proving, at the hearing on the motion to suppress, that the tangible evidence was obtained by an unlawful search or seizure. Lienee, the trial judge correctly refused to suppress this evidence. This bill therefore has no merit.

BILLS OF EXCEPTIONS NOS. 1 AND 4

(Reserved at Trial)

These bills were reserved when the trial judge refused to allow defense counsel to advise two prospective jurors of their personal exemption as peace officers. The trial judge also denied defense counsel’s request that he read the applicable exemption provisions to every prospective juror. Defendant exercised peremptory challenges against both prospective jurors, and exhausted his peremptory challenges prior to completion of the panel. La.Code Crim.P. art. 800 (1966).

Prior to its amendment by La.Acts 1974, Ex.Sess., No. 22, § 1, article 403 of the Code of Criminal Procedure provided that exemptions from jury service are personal to the juror and not a ground for challenge. The fact that a prospective juror has a personal exemption does not affect his qualifications to serve as a juror. The scope of examination of jurors is within the discretion of the trial judge. La.Code Crim.P. art. 786 (1966). We do not find that the trial judge abused this discretion by refusing either to permit defense counsel to advise two prospective jurors of their personal exemptions or to read the applicable exemption provisions to each prospective juror. Hence, this bill lacks merit.

BILL OF EXCEPTIONS NO. 7

(Reserved at Trial)

This bill was reserved when the trial judge refused to grant defendant’s motion for a mistrial. The basis for this motion was the following question propounded to Trooper Stuard by the district attorney:

DISTRICT ATTORNEY: Now, is that all you know about this case: You don’t know that this is the man, one of the men, that robbed the bank, do you?
WITNESS: Yes, I would say, yes.

Defendant contended at trial that this question called for an opinion as to his guilt. The district attorney’s question actually contained two questions. First, “[I]s that all you know about the case [?]” and second, “You don’t know that this is the man, one of the men, that robbed the bank, do you?” The latter question was phrased in the negative. In responding, Trooper Stuard apparently answered the first question, for immediately after defendant’s objection, the witness stated he was not present to see defendant rob the bank. Therefore, in this context, there is no merit in the contention that the answer complained of voiced an opinion as to defendant’s guilt. This bill has no merit.

BILL OF EXCEPTIONS NO. 8

{Reserved at Trial)

After his car was stopped by Trooper Stuard, defendant explained that he was leaving town in order to meet someone from Texas. The state asked Trooper Stuard at trial whether he had believed that story, whereupon defendant objected that this question called for an opinion from the witness. Defendant reserved this bill to the trial judge’s overruling of his objection.

The question propounded by the state did not call for inadmissible opinion evidence. The purpose of the question was to determine why Trooper Stuard failed to make an investigation of the truth of defendant’s story. The question, in this context, did not call for an opinion as to the truth or falsity of the story, but rather for the fact of Trooper Stuard’s state of mind upon hearing it. The fact that he did not believe the story was relevant to explain his failure to investigate the story and his other actions. This bill has no merit.

BILL OF EXCEPTIONS NO. 9

(Reserved at Trial)

The prosecution asked Agent Litchfield to examine the serial number on a bill and state whether or not a bill of that description and serial number was included on the Guaranty bank’s “bait list.” Defendant objected to this question. He reserved this bill to the trial judge’s overruling of his objection.

Under La.R.S. 15 :463, a witness can testify as to facts within his knowledge. It was a fact within Agent Litchfield’s knowledge that the serial number of the bill and the serial number on the “bait list;” both of which had already been admitted in evidence, were the same. Agent Litchfield was therefore competent to testify as to this fact. This bill is without merit.

We note, ex proprio mo hi, that the minutes of the trial proceedings fail to show that the trial judge, in imposing sentence, gave defendant credit toward service of his sentence for time spent in actual custody prior to its imposition. Such an allowance of credit is mandatory. La.Code Crim.P. art. 880 (1966), as amended, La. Acts 1970, No. 285, § 1. The case must therefore be remanded to the trial court for correction of sentence.

DECREE

For the reasons assigned, the conviction is affirmed and the case is remanded to the trial court for correction of sentence.

DIXON, J., concurs, disagreeing with the treatment of bills 1, 4 & 13.

      . Defendant reserved and perfected a total of forty-two bills of exceptions of which only sixteen were briefed and argued before this court on appeal. The remaining bills are therefore considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

      . Trooper Stuard did not actually seize and remove the paper bills from the car at this time. They were later seized by federal agents pursuant to a consent-to-search form with defendant’s signature.

      . It should be noted that Trooper Stuard, after completing the search, did not seize these items or remove them from the car.

      . Although advising defendant of his right to refuse consent is not essential to our finding of voluntariness, we note that the consent-to-search form, reads: “I Johnny Lee Rogers, having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search, . . . ” Thus, when defendant read this form, he was made cognizant of his constitutional right to refuse his consent.

      . Rules of this court now provide for exemptions from jury service. La.Const. art. 6, sec. 33(B) (1974); Louisiana Supreme Court Rule 25.

      . The failure of the trial judge to allow credit for time served in actual custody prior to imposition of sentence is an error that is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920(2), as amended, La.Acts 1974, No. 207, § 1; State v. Dillard, 320 So.2d 116 (La.1975); State v. Hall, 287 So.2d 798 (La.1973).


text:
    STATE of Louisiana v. Willie T. BATTS.
    No. 56677.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Robert E. Piper, Jr., Huckaby, Piper & Brown, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nes-bitt, Jr., Asst. Dist. Atty., for plaintiff-ap-pellee.
   MARCUS, Justice.

Willie T. Batts was charged by bill of information with distribution of marijuana in violation of La.R.S. 40:966. After trial by jury, he was found guilty as charged. He was subsequently sentenced to serve four years at hard labor. On appeal, defendant relies upon two assignments of error for reversal of his conviction and sentence.

FACTS

On July 30, 1974, Noel H. Reed, an undercover narcotics agent with the state police, was in Salute’s Lounge located on the river front in Shreveport. He was accompanied by an informant. Reed and the informant had prior knowledge that Larry Wayne Martin, then seated in the lounge, knew where drugs could be purchased. The informant approached Martin and informed him that Reed wanted to purchase a quantity of marijuana. These parties left together for the purpose of .having Martin make a contact for the purchase of marijuana for Reed. They located defendant, Willie T. Batts, in his car and followed him to a gas station where a conversation took place between Martin and Batts. Martin then informed Reed that Batts would follow them in his car to Tuminello’s grocery store where they would be able to purchase the marijuana. At the grocery store, they were met by Batts. Reed gave Martin fifty dollars to purchase five lids of marijuana from Batts. Martin and Batts then left in Batts’ vehicle. They returned in about five minutes, and Martin delivered five lids of marijuana to Reed. Batts immediately left the scene. Martin, Reed and the informant then drove back to Salute’s Lounge. Batts was later arrested and charged with distribution of marijuana.

ASSIGNMENT OF ERROR NO. 1

A motion for mistrial was filed by defendant claiming that three witnesses had conversed with each other in the district attorney’s officer during the course of the trial in violation of an order to sequestration issued pursuant to article 764 of the Code of Criminal Procedure. After a hearing, the motion was denied. Defendant objected to his ruling and makes it the subject of this assignment of error.

At the beginning of the trial, upon defendant’s request, the court ordered the witnesses sequestered. Both the state and defendant named the witnesses that were to be sequestered. During the course of his cross-examination, Larry Wayne Martin, a state witness, was questioned for the first time concerning a statement he had signed on February 18, 1975. This statement exculpated the defendant. According to Martin, defendant came to his house for the purpose of having him sign this prepared statement. He was sleeping at the time of his arrival, but Batts had his mother awaken him. Martin testified that he did not read the statement in full. Rather, he simply glanced at it and, being under the impression that it merely recited that he and Batts did not know each other prior to the date of the alleged sale of marijuana, he signed it. He further stated that, other than Batts, his mother was the only person present when he signed the statement. At this point, the state requested that Mrs. Martin, who was then present in the courtroom, be placed “under the rule” of sequestration in the event her- testimony might become necessary. Prior to this time, the state had no knowledge of the statement or of Mrs. Martin’s presence when it was signed. On the other hand, defendant not only knew of the statement, but was also aware that Mrs. Martin was present when it was signed. Nevertheless, defense counsel objected, claiming a violation of the rule of sequestration and stated that he would oppose Mrs. Martin testifying. The trial court then placed Mrs. Martin under the rule of sequestration. The examination of Martin continued. Over the state’s objection, defense counsel was permitted to offer Martin’s statement in evidence. At the conclusion of Martin’s testimony, the court recessed for lunch.

When the trial resumed after the recess, Mrs. Martin was called as a witness for the state. Her testimony generally corroborated that of her son. On cross-examination, Mrs. Martin was questioned on her activities during the lunch hour. Thereupon, it was revealed that she had gone to the district attorney’s office with the prosecuting attorney and there conferred with him. Martin and other members of her family had accompanied her. Testimony taken outside the presence of the jury on the motion for mistrial reveals that Martin was standing near the doorway when the prosecuting attorney questioned Mrs. Martin concerning her knowledge of the statement. It was not established that Martin either participated in or overheard this conversation. To the contrary, Mrs. Martin emphatically stated that she did not discuss the case with her son at that time or thereafter. During this meeting between the prosecuting attorney and Mrs. Martin, an assistant district attorney and Noel H. Reed, another state witness, stopped by the office to inquire as to whether the prosecuting attorney wanted to go to lunch with them. They (the assistant district attorney and Reed) immediately left. Reed did not converse with Mrs. Martin nor did he participate in her conversation with the prosecuting attorney.

The rule providing for sequestration of witnesses at trial is’ contained in article 764 of the Code of Criminal Procedure. It recites:

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

The purpose of this article requiring sequestration of witnesses is to prevent their being influenced by testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts. State v. Raymond, 258 La. 1, 245 So.2d 335 (1971), cert. denied, 404 U.S. 805, 92 S.Ct. 101, 30 L.Ed.2d 38; State v. McAllister, 253 La. 382, 218 So.2d 305 (1969). Article 764 vests discretion in the trial judge as to the disqualification of a witness even when the rule of sequestration has been violated. State v. McKinney, 302 So.2d 917 (La.1974); State v. Browning, 290 So.2d 322 (La.1974).

In the instant case, the state was not aware of the statement or that Mrs. Martin had witnessed it until brought out by the defense during the cross-examination of Martin. The state immediately moved to have this witness sequestered. On the other hand, defendant had prior knowledge of these facts. Also, no evidence was produced that either Martin or Reed overheard or participated in the conversation between the prosecuting attorney and Mrs. Martin. Under these circumstances, we are unable to say that the trial judge abused his discretion either in permitting Mrs. Martin to be placed under the rule and thereafter to testify even though present in the courtroom during most of her son’s testimony, or in his factual conclusion that the witnesses had not violated his sequestration order during the recess. Hence, the motion for mistrial was properly denied. In any event, Mrs. Martin’s testimony simply corroborated the testimony of her son regarding the statement. There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in failing to admonish the jury to disregard the testimony of Mrs. Martin since she had violated the court’s order of sequestration. This assignment of error presents the same issue as the previous one. For the reasons therein, we find no merit in the contention that the trial judge should have admonished the jury to disregard Mrs. Martin’s testimony. Hence, this assignment of error is likewise without substance.

DECREE

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

      . Defendants perfected another assignment of error; however, in brief to this court, he specifically abandoned same.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Booker T. DEMERY.
    No. 56730.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Samuel P. Love, Jr., Love, Rigby, Dehan & Love, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., William L. Goode, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Booker T. Demery by bill of information with the attempted second degree murder of Johnny Stewart on July 7, 1974, in violation of LSA-R.S. 14:27, 30.1. After trial, the defendant was found guilty. The court sentenced him to imprisonment for ten years in the custody of the Louisiana Department of Corrections. He appeals his conviction and sentence, relying on five assignments of error; Assignment of Error No. 5 has been abandoned.

On July 6, 1974, at approximately four o’clock in' the afternoon, Booker T. De-mery and L. S. Stevens fought at the Club Forest Lounge in Shreveport, Louisiana. The proprietor of the establishment, Johnny Stewart, ordered both men to leave. Demery departed but returned later that night, armed with a pistol. A gunfight ensued between Demery and Stewart, both were wounded. The State charged De-mery with attempted second degree murder of Stewart.

ASSIGNMENTS OF ERROR NOS. 1, 2, AND 3

Defendant contends that the court erred in allowing the introduction of photographs depicting the scene of the crime, the area in which a .38 caliber pistol was found, and a close-up of the .38 caliber Smith and Wesson pistol and cartridges. He assigns the introduction of the photographs as Assignment of Error No. 1. In Assignment of Error No. 2, defendant contends that the court erred in allowing the introduction of the pistol into evidence without proof of ownership. He assigns the admission of a spent .38 caliber cartridge and bullet into evidence as Assignment of Error No. 3.

Three Shreveport police officers testified that they were at the scene immediately after the crime was committed. Lieutenant McEachern identified the photographs and testified as to the condition of the scene as shown in the photographs. He pointed out where he found the spent .38 caliber bullet and related that the blood in the photographs was present at the scene. He also identified the .38 caliber Smith and Wesson, some spent rounds, and the live rounds which he removed from the gun, and a spent bullet which he found on the floor. The spent slug and the cartridges from the gun had been tagged for identification and were identified on that basis.

Officer Hendrick and Officer Barrish corroborated the testimony of Officer McEachern as to the authenticity of the scene as depicted in the phoographs and that the exhibits or physical evidence were actually taken from the scene.

The legal principles applicable to the introduction of demonstrative evidence are set forth in State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), as follows:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
“The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Coleman, 254 La. 264, 223 So.2d 402; State v. Martin, 250 La. 705, 198 So.2d 897; State v. Bertrand, 247 La. 232, 170 So.2d 386.
“The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury. State v. Wright, 254 La. 521, 225 So.2d 201; State v. Whitfield, 253 La. 679, 219 So.2d 493; State v. Progue, 243 La. 337, 144 So.2d 352; 2 Wharton’s Criminal Evidence (12th Ed.), § 673, p. 617.”

Under these principles, the foundation as to each of the items was adequate for.admission.

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

ASSIGNMENT OF ERROR NO. 4

Defendant assigns as error the court’s allowing Stevens to testify that he had had a confrontation with the defendant in that club earlier that day. He contends that the witness’s testimony is irrelevant and highly prejudicial. However, the defendant is precluded from raising this contention in this Court as he withdrew his objection. When later asked by the court if he still wished the court to admonish the jury relative to Stevens’ testimony, defense counsel replied, “No, sir.” (Tr. p. 60, lines 16 through 18).

Assignment of Error No. 4 is, therefore, without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant bases Assignment of Error No. 6 on the trial court’s failure to instruct the jury to ignore a remark made by the District Attorney in his closing statement. The District Attorney commented that the defendant was a “gunslinger.” Defendant argues that the remark is a violation of Article 774 of the Louisiana Code of Criminal Procedure, which provides that arguments shall be confined to evidence admitted at trial and that the argument shall not appeal to prejudice.

Although the District Attorney's closing argument is not in the record, we note that defendant, himself, testified that he always carried a gun and that he had taken a shot at Stevens earlier in the day. The evidence, therefore, justifies the inference made by the District Attorney.

Assignment of Error No. 6 is, therefore, without merit.

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