text:
    Kermit T. SANDS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1834.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Kermit T. Sand§, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The appellant, Kermit T. Sands, was found guilty of the sale of a controlled substance. On appeal, the judgment and sentence were affirmed. See Sands v. State, 341 So.2d 1075 (Fla. 3d DCA 1977). The present appeal is from the denial of his motion to vacate pursuant to Fla.R.Crim.P. 3.850. The motion was properly denied under the law as set forth in Robinson v. Wainwright, 240 So.2d 65 (Fla. 2d DCA 1970). See also Arizona v. Washington, - U.S. -, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KENDALL MALL, INC., Appellant, v. CHURCHILL’S HAIR DESIGNER TO MEN AND WOMEN, INC., Appellee.
    No. 77-1889.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Risken & Dishowitz, Hollywood, Savitt, Kotzen & France, North Miami Beach, for appellant.
    Steven M. Siegfried, of Schoninger & Siegfried, Miami, for appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

The only point raised in this appeal by the defendant-lessor from an adverse final money judgment in an action for breach of lease, is that the plaintiff-lessee failed to properly prove its damages. Having considered the contentions raised in the parties’ briefs in the light of the record on appeal and the transcript of the non-jury trial, we are of the opinion that no reversible error has been demonstrated because the award of damages is supported by unrefuted competent substantial evidence.

Affirmed.


text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. Alfred J. FLECHAS et al., Appellees.
    No. GG-170.
    District Court of Appeal of Florida, First District.
    May 31, 1978.
    Charles Cook Howell, Jr., Jacksonville, for appellant.
    L. William Graham of Dell, Graham, Willcox, Barber, Ryals & Henderson, Gainesville, for appellees.
   PER CURIAM.

AFFIRMED. See Miller Elec. Co. v. Employers’ Liability Assur. Corp., 171 So.2d 40 (Fla. 1st DCA 1965); Fontainebleau Hotel Corp. v. United Filigree Corp., 298 So.2d 455 (Fla. 3d DCA 1974).

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. ACME ELECTRIC, INC., Appellee.
    No. II-135.
    District Court of Appeal of Florida, First District.
    May 31, 1978.
    David T. Johnson, Jr., and Donald H. Partington of Clark, Partington, Hart & Hart, Pensacola, for appellant.
    Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola, for appellee.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, the judgment is affirmed on authority of Fontainebleau Hotel Corporation v. United Filigree Corporation, 298 So.2d 455 (Fla.3d DCA 1974).

MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur.


author: DENNIS, Justice. TATE, Justice.

text:
    STATE of Louisiana v. Rosario OCCHIPINTI.
    No. 60666.
    Supreme Court of Louisiana.
    March 6, 1978.
    On Rehearing May 22, 1978.
    Larry P. Boudreaux, Boudreaux & Clement, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was convicted of perjury, La. R.S. 14:123, in a trial without jury and sentenced to serve two years at hard labor. Defendant appeals, relying upon two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant, Rosario Occhipinti, testified as a defense witness on March 5,1975 in the burglary trial of Joseph Cappo. During the trial, both Cappo and Occhipinti were portrayed by the State’s principal witness, Robert Tallent, as participants with him in a conspiracy organized to plan and execute burglaries in Lafourche Parish. Tallent testified that although they had not physically participated in the offenses with him, Occhipinti and Cappo had been involved in gathering information and in planning the crimes. Tallent claimed that Occhipinti was thus implicated in crimes committed during a period from December of 1972 to July of 1973. In his testimony Occhipinti contradicted these allegations by denying that he ever planned any crimes with Tal-lent or Cappo and by asserting that he had been engaged in managing a motel on a full time basis in Pascagoula, Mississippi during a substantial portion of this time. In fact, Occhipinti testified, he was in Pascagoula “twenty-four hours a day” from February, 1978, to January, 1974.

Defendant now concedes that, in truth, he did not move from New Orleans to Pas-cagoula until April, 1973, and that even after moving there he was absent from Pascagoula many times during the period specified in his testimony. Furthermore, he does not dispute the principle that false testimony which impeaches the credibility of a witness as to a material issue is always material. Defendant’s argument is simply that his false testimony did not contradict that of Tallent or attack his credibility. Our inquiry, therefore, is directed toward whether the testimony of defendant in question had contradictory impeaching value or tended to show that Tallent had erred or falsified as to certain material facts. See, C. McCormick, Evidence, § 47 (Cleary ed. 1972).

The majority rule is that materiality of false testimony is a matter of law for determination by the court, rather than a factual question to be decided by the jury. Therefore, our scope of review is not limited to an examination of the record to determine whether there was “some evidence” from which the trier of fact could have concluded that the false testimony was material, but is instead directed toward an independent decision on the question of law of materiality. After such an independent analysis, we conclude, for the reasons set forth below, that the trial court correctly determined that the false testimony was material and that the State had met its burden of proving this essential element of the crime.

During the burglary trial of Joseph Cap-po, Tallent was questioned about the participation of Occhipinti in one of the alleged crimes which occurred in Thibodaux on February 3, 1973. Tallent testified:

“Q. Did you ever see Mr. Occhipinti after the Lefort burglary?
“A. After the Lefort burglary? These dates are getting me all mixed up. That was on the 3rd of February. I was more or less thinking to myself. I can’t say for certain.
“Q. You don’t know if you ever saw him after that day. Is that correct?
“A. If I saw Mr. Cappo?
“Q. Mr. Occhipinti after the 3rd day of February, 1973, the time of the Le-fort burglary.
“A. I am almost certain I did, but I would hesitate to say positively.
“Q. Did you or did you not testify here today that Joseph Cappo, Roy Oc-chipinti, and Dave DiVincenti planned all of the crimes that you committed in Lafourche Parish?
“A. That they planned them all?
“Q. Yes, or gave you information for you to plan them.
“A. In Lafourche Parish. I believe that’s accurate for Lafourche Parish.
“Q. That Roy Occhipinti participated along with Cappo and DiVincenti in every crime that you committed in Lafourche Parish.
“A. Now, you are saying participated. I am saying that he had knowledge of these and that at one time or other actually was with me, drove me to these different residences, business places, showed them to me, described some of the circumstances along with Mr. Cappo. That’s true.
“Q. Let’s take the Sako robbery, which was in July, the end of July.
“A. The 22nd of July.
“Q. Did Mr. Occhipinti come and show you anything in connection with that crime?
“A. He showed me that some time earlier; much, much earlier than the crime itself, yes.
“Q. What would you call much earlier?
“A. Probably a month or two months maybe.
******
“Q. Did you at any time after the Le-fort burglary up to and including the time of the Sako robbery — did you ever meet with Roy Occhipinti to plan any crimes in Lafourche Parish?
“A. Roy Occhipinti?
“Q. Yes.
“A. Of that I am not certain. I will have to say I cannot remember that. I am not certain about that.”

After Tallent had testified, Occhipinti was called as a defense witness. During examination by Cappo’s attorney, he testified:

“Q. How long did you operate that furniture store? Let me ask you this. Were you operating it in 1972 and 1973?
“A. Yes.
“Q. All of’73?
“A. No, sir. I operated it up until around — I think some time like around the middle of February.
“Q. At that time what did you do?'
“A. I moved to Pascagoula. I went there to run a motel.
“Q. What motel did you run there?
“A. The Dutch Inn for Mr. William Bos-worth.
“Q. What hours did you work there?
“A. I was on twenty-four hour call, but I worked from 5:00 in the morning until 11:00 at night, and then when I would close at 11:00 at night the switchboard was connected to my apartment so any calls that came into the motel I had to be right there to answer them.
“Q. Between February, 1973 until— when did you leave that job?
“A. I left there and moved back to New Orleans around January of ’74.
“Q. Between February of ’73 and January of ’74 were you ever out of Pascagoula?
“A. Never. I was there twenty-four hours a day.”

Defendant argues that this portion of his testimony was not material because it did not contradict any definite statement made by Tallent. Since Tallent’s vacillating testimony did not amount to an assertion that defendant visited Lafourche Parish after February of 1973, defendant contends, it was completely consistent with his statement that he was never out of Pascagoula between February of 1973 and January of 1974.

We disagree. A reading of the Cappo trial testimony as a whole demonstrates that the essential effect of Tallent’s testimony was to indicate that the defendant was deeply involved in all of the burglaries which occurred in Lafourche Parish during 1973 and that there was at least a strong possibility that Occhipinti had visited him in the Parish after February of that year. The thrust of Occhipinti’s testimony was that there was absolutely no possibility that he could have been in Lafourche Parish during that time, that instead his job in Pascagoula demanded all of his time twenty-four hours per day — all of which tended to show that the likelihood of his involvement in any of the crimes with Tallent was small. Therefore, Occhipinti’s testimony had impeaching value and tended to show that Tallent had erred or falsified important facts in his testimony. Moreover, this attack upon Tallent’s credibility was sharpened by the defense attorney who informed the jury in his opening statement that Oc-chipinti “could account for every minute of his time” during the period he was in Pas-cagoula. It is clear that the primary reason Occhipinti was called as a witness was to attack Tallent’s credibility. An objective reading of the transcript supports the trial court’s finding that the statement given by Occhipinti tended to undermine the testimony of Tallent. Accordingly, we find that the false statements were material, and that defendant’s first assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant concedes that he gave the false testimony but contends that he did not understand the crucial questions put to him during the Cappo trial. Therefore, he argues that there was no evidence whatsoever to support the trial judge’s finding that he had the requisite criminal intent required for perjury. We find, however, from reading defendant’s Cappo trial testimony and his explanatory testimony in the instant case, sufficient evidence to support the trial court’s determination that the State proved this element of the crime beyond a reasonable doubt.

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

On Rehearing

TATE, Justice.

The defendant was convicted of perjury, La.R.S. 14:123, and sentenced to two years at hard labor. The charge was based upon his testimony in a previous trial of another person.

The defendant had there testified, inter alia, that he worked and lived in Pascagou-la, Mississippi, from February, 1973 to January, 1974, without leaving at any time. In actual fact, he did not move from New Orleans until the middle of April, 1973; and, while in Pascagoula, he visited New Orleans on frequent occasions.

The issue is whether this false statement under oath fell within the statutory requirement that, as an essential element of the crime, it “must relate to matter material to the issue or question in controversy.” La.R.S. 14:123. As we held in our original opinion, our review is “directed toward an independent decision on the question of law of materiality.” At 1210. “The plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant’s guilt.” La.R.S. 15:271 (1968).

The defendant Occhipinti’s testimony at the prior trial was intended to impeach the credibility of Tallent, the state’s star witness. Tallent and a confederate had actually committed the Lefort burglary of February 3, 1973, but the defendant in that case, a businessman, was charged with having helped Tallent plan the burglary, having waited outside while the burglary was committed, and with having shared in the proceeds.

Tallent also testified that the present defendant (Occhipinti) had similarly participated in that burglary, as well as had participated in planning several other La-fourche Parish crimes which were committed subsequent to the Lefort burglary.

Occhipinti, who had run a furniture store in New Orleans up through February, took the stand as a defense witness to deny ever having been in Lafourche Parish and ever having met Tallent. His obvious purpose in testifying was in support of the defense theory that Tallent had completely fabricated the alleged participation of businessmen in his crimes, for the purpose of making favorable plea bargains.

A brief part of the lengthy cross-examination of Tallent attempted to pin him down as to when he had last seen Occhipin-ti. As the attorney for the defendant in the previous trial testified, it would obviously discredit Tallent’s testimony if, in fact, Occhipinti could be proved to have been in Pascagoula on any specific such date, by the records of the motel he was operating there.

If in fact Occhipinti’s false statement contradicted Tallent’s testimony as to a date, then, as we held in our original majority opinion, the perjury related to a material issue, i. e., Tallent’s credibility.

In our original opinion, we quoted Tal-lent’s testimony at length as to the last date he claimed to have seen Occhipinti. We noted that Tallent first testified that he “would hesitate to say positively” that he had seen Occhipinti subsequent to the Le-fort burglary of February 3. He then guessed he had seen Occhipinti “much, much earlier” than the Sako robbery of July 22, and, pressed for a more precise estimate, stated it was “probably a month or two months maybe.” Finally, however, when pressed further as to whether he had seen Occhipinti after the February Lefort burglary, his final testimony was: “Of that I am not certain. I will have to say I cannot remember that. I am not certain about that.”

Under this testimony, we now conclude that the only material issue as to Tallent’s credibility concerning the date was whether in fact Occhipinti contradicted Tallent’s credibility insofar as he testified that he had seen and been with Occhipinti on February 3 (the date of the Lefort burglary) and earlier. If, through inadvertence or otherwise, Occhipinti stated that he had moved from New Orleans in mid-February or March or October, it was immaterial to any issue of the case concerning Tallent’s credibility. It made no difference as to the truth or not of Tallent’s testimony.

At the previous trial, Occhipinti testified that he left Pascagoula for New Orleans “some time about the middle of February,” where he was “on twenty-four hour call,” until he left there and moved back to New Orleans “around January of ’74.” (In truth the move to Pascagoula did not occur until mid-April 1973.)

We are re-enforced in our belief that this misstatement was immaterial to any issue in the case by the circumstance that by far the larger importance of Occhipinti’s testimony at the previous trial was that he had never seen Tallent before the Lefort burglary (and not until months later, after Tallent was arrested and had implicated him), that he had never been to Thibodaux, and that he definitely did not participate in the Lefort burglary or the other Lafourche Parish crimes in any manner; as well as by the lack of any cross-examination on the date issue. Further, “nothing is more common in court than an honest mistake as to dates, and if a charge of perjury is predicated on testimony relative to the date when a conversation occurred, the prosecution must establish beyond a reasonable doubt that the false statement was not given inadvertently.” 3 Underhill’s Criminal Evidence, Section 820, p. 1844 (5th ed., 1957).

Decree

Accordingly, we reverse the conviction and sentence, and we remand this case for further proceedings not inconsistent with the views expressed herein.

REVERSED AND REMANDED.

SUMMERS, J., dissents.

DENNIS, J., dissents for the reasons originally assigned.

      . The conviction and sentence imposed in that case were reversed by this Court in State v. Cappo, 345 So.2d 443 (La.1977).

        . State v. Smith, 126 La. 135, 52 So. 244 (1910); see also, Anderson, Wharton’s Criminal Law and Procedure, § 1312 (1957); Comment, “Perjury: The Forgotten Offense”, 65 J.Crim.L. 361 (1975); McClintock, What Happens to Perjurers, 24 Minn.L.Rev. 727 (1940).

      . Perkins on Criminal Law, p. 462 (2d ed. 1969); contra, People v. Clemente, 285 App.Div. 258, 136 N.Y.S.2d 202 (1st Dept.1954).

      . La.Const. of 1974, Art. V, § 5(C); State v. Singleton, 252 La. 976, 215 So.2d 512 (1968).

      . The counsel for the defendant in the previous case there argued in his opening statement, with regard to Tallent: “He tried to get Mr. Occhipinti into some of these cases [i. e., the other crimes], but he had to pull back because Mr. Occhipinti was running a motel in Pasca-goula and he stayed there twenty-four hours a day and could account for every minute of his time.”

      . At the perjury trial, both Occhipinti and the defense counsel in the prior trial testified that, after Occhipinti left the stand, he realized that he misstated the April date as February (allegedly, through nervous inadvertence), but that defense counsel- advised him it was not necessary to correct the misstatement because the variance was unimportant and immaterial.

      . While the record is not clear, there are implications that the state knew at the time that, in fact, Occhipinti was still in New Orleans in late February and had afterwards visited there while in Pascagoula.
      Cf. Bronston v. United States, 409 U.S. 352, 358-59, 93 S.Ct. 595, 600, 34 L.Ed.2d 568 (1973), where, in reversing a perjury conviction founded on an analogously misleading response to a question, the court stated, “If a witness evades, it is the lawyer’s responsibility to recognize the evasion and bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination”; there, the court also noted “ ‘the obligation of protecting witnesses from oppression, or annoyance, by charges, of having borne false testimony, is far paramount to that of giving even perjury its desserts. To repress that crime, prevention [e. g., by cross-examination] is better than cure * * *."


author: PER CURIAM. SANDERS, Chief Justice SUMMERS, Justice

text:
    STATE of Louisiana v. Alexander FERGUSON.
    No. 60526.
    Supreme Court of Louisiana.
    April 10, 1978.
    Concurring Opinion May 26, 1978.

      Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

A grand jury indictment charged defendant Alexander Ferguson with aggravated rape, a violation of Article 42 of the Criminal Code. A unanimous jury found him guilty of attempted aggravated rape, a lesser included offense. He was sentenced to twenty years at hard labor.

Assignments 1, 2, and 3

In a motion to quash defendant alleged that the grand jury that indicted him did not include citizens from the Desire Housing Project because the process servers would not go into that area. It was also alleged that those not registered to vote were not included in the grand jury list by the jury commission unless they volunteered. The result of this practice, it is asserted, was to systematically exclude residents of the Desire Housing Project and that segment of the community not registered to vote.

When the general venire was formed from which was drawn the August 1975 grand jury that indicted defendant, service upon prospective jurors was not made within the heart of the project. Faced with this identical issue in State v. Cage, 337 So.2d 1123 (La.1976), we affirmed the trial court’s granting a motion to quash an indictment by a grand jury from which membership of the same portion of the community had been deliberately not included, i. e., deliberately excluded.

Nevertheless, following the quashing of the indictment in Cage, the grand jury commission reformed its procedures soon after the venire for the present grand jury was selected. By the time the petit jury venire was selected for the present case, no unconstitutional exclusion of any segment of the population is shown.

We have determined that Cage should be applied only prospectively to jury venires improperly constituted by reason of the practices reprobated by the Cage holding, especially since the practices were terminated as a result of the Cage decision. The interest at stake (proper selection of jury venires) has been adequately served by Cage and the corrective measures thereafter instituted. No individual unfairness has resulted in the present case.

As in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), the application of Cage prospectively only to venires selected after the date of its decision, will adequately vindicate the constitutional interest at stake. The quashing of the indictment in Cage secured correction and purification of the venire-selection procedures held defective therein. The practice condemned in Cage — of deliberately excluding a portion of the community from potential inclusion in jury venires, because of the difficulties of effecting service in the neighborhood — “did not rest on the premise that every criminal trial, or any particular trial, was necessarily unfair,” 420 U.S. 32, 95 S.Ct. 705, because not conducted in accordance with the requirements of Cage.

Under these circumstances, the vindication of the constitutional interest protected by Cage does not require reversal of other convictions, fairly tried before petit juries selected from properly confected venires, because of Cage defects in the method of selecting the grand jury which indicted the accused.

We therefore find no reversible merit in these assignments.

Assignment 4

According to the state’s theory of the case, at approximately 4:30 on the morning of July 27,1975, Floyd Lamb was awakened by the screams of his wife that a man was in the room. A fight between Lamb and a masked intruder ensued. During the affray the light in the room was turned on and the mask fell from the intruder’s face. Lamb pleaded with him not to hurt them. Despite his plea, Lamb was stabbed until he was rendered half-unconscious and was thrown onto the floor. The attacker then raped his wife.

Lamb regained consciousness as the rapist departed. He noted at that time that the attacker was wearing light grey trousers and a figured shirt. Also he recalled having seen this same person — -the defendant Ferguson — about a week before at an apartment nearby. Later inspection revealed the rapist had entered through a side window of the Lamb apartment; five dollars were missing from Mrs. Lamb’s purse, and their tape deck and Lamb’s automobile were also missing.

About one o’clock that afternoon the police drove Lamb and his wife to the station where they were shown a group of photographs of black males. All were approximately the same age. From the photographs both Lamb and his wife identified Ferguson as the attacker.

Prior to trial defendant filed a motion to suppress identification alleging that his photograph was viewed under circumstances suggesting that he was the perpetrator of the crime. This, it was alleged, was a violation of the principles announced by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). He alleged that the impermissible suggestions so tainted his identification his constitutional right to due process was violated. The motion was denied.

At the hearing held on the motion to suppress the defense failed to establish any degree of impermissible suggestion. Lamb and his wife readily and independently identified defendant from the group of photographs exhibited by the police. In addition, their in-court identification had a source independent of the out-of-court identification. Each had met defendant on two occasions, five days before July 27 and at the time of the attack. On the latter occasion they were in close contact with him for an appreciable time. During the attack the lights were on and Ferguson’s mask fell from his face.

Even where a previous out-of-court identification is impermissibly suggestive, the witnesses’ subsequent in-court identification does not offend due process where it has a source independent of the out-of-court identification. State v. Judson, 329 So.2d 742 (La.1976); State v. Allen, 251 La. 237, 203 So.2d 705 (1967). The ruling of the trial judge was correct.

The assignment has no merit.

Assignments 5 and 12

A motion to suppress for use as evidence all objects seized on July 27, 1975, by the police in a search of the premises occupied by the defendant was filed on his behalf. Objects referred to included a radio, an automobile and other tangible things in the state’s possession. The seizure is opposed on the grounds that it was without a warrant or probable cause in violation of defendant’s Fourth and Fifth Amendment rights. The motion was denied.

At the hearing on the motion the state stipulated that law officers had seized one am-fm radio-cassette player-recorder, one pair of grey pants, one grey shirt, one brown belt, a pink and brown scarf, a set of men’s underwear, green pants and shirt, black shoes and a man’s wrist watch.

Officer Brady testified that at ten o’clock on the morning of July 27 Officer Jones informed him that he had information that Alexander Ferguson had committed a rape. Jones asked Brady to accompany him. They proceeded with other policemen to 6682 Chef Menteur Highway where Ferguson lived. Upon arrival they knocked at the door and were greeted by a pregnant woman who identified herself as Mrs. Ferguson. In Brady’s presence Jones asked her if Ferguson was home and when she acknowledged that he was, she was asked if they could talk to him. Saying her husband was in the bedroom sleeping, she consented and invited them in.

Ferguson was awakened, informed of his rights and told by Officer Jones that he was under arrest for aggravated rape. At this time Brady observed two sets of men’s clothing lying near a chair in the small bedroom. He inquired of Mrs. Ferguson what clothes her husband was wearing the night before. When she said grey trousers and a grey shirt Brady picked them up and observed bloodstains on the trouser leg. Ferguson then asserted that he was wearing, instead, a green outfit lying near the grey trousers and shirt.

Meanwhile Brady observed on the shelf of an armoire nearby a radio with the name “Lamb” inscribed thereon. All of these items were seized. As Ferguson was dressing Brady saw bloodstains on his undershirt and made him change while Brady took possession of the stained shirt. Ferguson was then transported to central lock-up.

Lorraine Johnson, who was apparently Ferguson’s common-law wife, conceded at the hearing that she lived at 6682 Chef Menteur and that she was pregnant when the officers arrived. Although she denied inviting them into the house, on cross-examination she admitted that two assistant district attorneys came to the house later that morning. At that time, she acknowledged, she spoke to them about the incident and told the officers Ferguson wore grey trousers and a grey shirt when he left the house the night before.

The constitutional validity of third party consent demonstrates the fundamentally different nature of a consent search from waiver of a trial right. Generally a spouse may consent to the search of the home, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); State v. Johnson, 343 So.2d 155 (La.1977); State v. Cooley, 260 La. 768, 257 So.2d 400 (1972); State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968); and a third party holding common authority over, or other relationship to, the premises or effects sought to be inspected may consent to a search. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

The question of consent is a question of fact under the particular facts and circumstances. Here the trial judge was called upon to decide between the testimony of the police officer or Ferguson’s wife. There is no compelling evidence in this record warranting a rejection of the trial judge’s determination of this credibility issue in favor of the state. His discretion in matters of this nature is entitled to great weight.

This assignment has no merit.

Assignment 6

Article 784 of the Code of Criminal Procedure sets forth the method for selecting the petit jury panel to try the case. The article requires that, “In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court.” The defense contends this was not done. Instead, it is asserted, the trial judge was presented with the list containing the petit jury venire on the day of trial. Examination of prospective jurors then proceeded in the order in which their names appeared on the petit jury venire. This procedure was therefore contrary to that prescribed by Article 784 and, the defense contends, unfair to the accused in this respect: By permitting voir dire in the order set forth on the petit jury venire, the state enjoyed an unfair advantage over the defendant because of its superior ability to accumulate information and data respecting prospective jurors. With this advantage the state could more favorably exercise its peremptory challenges by an overview of the entire venire enabling it to anticipate which members of the venire would more probably favor the state’s position.

In State v. Hoffman, 345 So.2d 1 (La.1977), this court considered the contention raised in the case at bar and Article 409.1 permitting a jury panel in Orleans Parish to be selected from a central jury pool rather than from the petit jury venire. In resolving the issue the court concluded that the two articles were not in conflict and the mandate of Article 784 requiring the drawing “indiscriminately and by lot in open court” was applicable whether the jury panel is selected from a petit jury venire or from a central jury pool.

Nevertheless, because the court had authoritatively construed the apparent inconsistency between Articles 409.1 and 784 for the first time in the Hoffman case contrary to the construction adopted by the judges of the Orleans Parish Criminal District Court, the Hoffman decision was given prospective operation only, inapplicable to cases where a jury panel was selected prior to the decision’s effective date — April 26, 1977.

In the case at bar the petit jury was selected on December 8, 1975 and the finding in the Hoffman case that Article 784 was applicable in Orleans Parish is inapplicable to this prosecution.

This assignment has no merit.

Assignment 7

Defense counsel complains that the trial judge erroneously granted the state’s challenge for cause of prospective jurors because they were unalterably opposed to capital punishment. Capital punishment, the defense argues, was not then a valid punishment, because statutes of other states imposing the death penalty which were similar to Louisiana’s death penalty statute for murder were held unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 decided in 1972. Subsequently, in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 212 (1976), the death penalty in Louisiana’s aggravated rape statute was also declared unconstitutional. La.Rev.Stat. 14:42.

The substance of the defendant’s objection is that it was improper to excuse jurors with objections to the death penalty, since (in view of Furman) the death penalty was inapplicable. No complaint is made that the challenges for cause were improperly sustained, if indeed this was a capital case.

As the defense argument is understood, it contends that no valid capital punishment for aggravated rape existed during the period following the decision in Furman and until the reenactment of the death penalty for aggravated rape by Act 612 of 1975, effective September 12, 1975.

The present offense was tried between Furman (which in 1975 invalidated capital punishment for the first degree murder statute) and Selman (which in 1976 invalidated capital punishment for aggravated rape). At that time, the death penalty for the aggravated-rape statute had been upheld by us against a constitutional attack. State v. Selman, 300 So.2d 467 (La.1974), later reversed in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 212 (1976).

At the time of the trial in the instant case, therefore, a challenge for cause based upon the prospective juror’s opposition to the death penalty was a relevant and permissible challenge. It was not until July 6, 1976, when the United States Supreme Court in Selman v. Louisiana declared the death penalty in Louisiana’s aggravated rape statute unconstitutional, that a challenge for cause based upon a prospective juror’s opposition to the death penalty became irrelevant for offenses committed pri- or to the effective date of Act 612 of 1975.

Under these circumstances it was not error for the trial judge to grant the challenges for cause complained of here.

Assignment 8

(Not briefed, considered abandoned.)

Assignment 9

The victim’s husband was under cross-examination by defense counsel. He was asked if he remembered saying on direct examination that he passed out during the encounter with the defendant. He replied that he remembered saying that he was “about to pass out;” whereupon, defense counsel queried, “If you said you passed out you made a mistake?”, and the witness answered “Yes.” Then defense counsel said, “So far you made two . ..” Before he could finish the statement the state’s attorney objected and was sustained.

While the record does not indicate any basis for sustaining the state’s objection to this question, likewise the defendant does not show any prejudice reflected by this ruling, which was apparently intended to reiterate the discrepancy in the witness’ testimony fully explored before the jury.

We find no reversible merit to this assignment.

Assignment 10

We find no abuse of discretion by the trial court in sustaining a state objection to an argumentative question by the defendant’s counsel.

Assignment 11

Defendant complains that it was error for the state to introduce a copy of his hospital record in evidence. The grounds stated at trial were that, although he was aware that the state had caused a subpoena duces tecum to be issued and that the motion therefor was in the record, he had never seen the hospital record which was subpoenaed. Defense counsel also asserted the hospital record sought to be introduced did not comply with law.

On this appeal these grounds for objection are apparently abandoned, and the defense brief contends instead that the hospital record was irrelevant and disclosed, to defendant’s prejudice, that he had incurred a gunshot wound years before when he was nineteen years old.

The contentions on appeal are not properly presented. The grounds for objection must be stated at the time of the ruling, and matters not urged at the trial cannot be availed of on appeal. La.C.Cr.P. art. 841.

Assignment 13

At the close of the state’s case, defense counsel moved for a directed verdict. The motion was denied and the ruling is assigned as error.

Since the amendment of Article 778 of the Code of Criminal Procedure by Act 527 of 1975, effective September 12, 1975, the motion for a directed verdict is no longer permitted in a jury trial. This amendment, being procedural in nature, is applicable to this December 8, 1975 trial although the trial involved a July 27, 1975 offense. State v. George, 346 So.2d 694 (La.1977); State v. Jackson, 344 So.2d 961 (La.1977).

This assignment is without merit.

Assignment 14

Prior to presentation of evidence on behalf of the defense, counsel for Ferguson, out of the presence of the jury, informed the trial judge that a conflict had arisen between him and his client. Based upon this representation, Ferguson was permitted to testify out of the presence of the jury for the limited purpose of establishing the conflict. He testified that counsel had advised him that error had been committed by rulings of the trial judge and the errors would be corrected by the supreme court. It was counsel’s advise to Ferguson to rest and not present any evidence for the defense. Ferguson stated, however, that it was his wish to present his defense of alibi.

At this point defense counsel asked for time to consult with the public defender and to study the American Bar Association standards relating to the proper procedure in such a case, where he and his client could not agree upon the defense tactics. The request was denied, the trial judge rhled that defense counsel must decide to either rest or proceed with the defense. After objecting to the ruling, defense counsel proceeded with the defense by interrogating several witnesses in an effort to establish an alibi for his client.

Defense counsel argues that the refusal of the trial judge to grant time to obtain advice forced him to proceed with a defense for which he was unprepared. In effect, it is claimed, the ruling deprived defendant of his right to counsel and due process.

In our view the defendant was not denied adequate assistance of counsel. To the contrary, this record demonstrates that defendant was ably defended at all stages of the trial. Defense counsel was obviously competent and well-prepared. No abuse of discretion is apparent in the ruling of the trial judge.

This assignment is without merit.

Assignment 15

At defense counsel’s written request the trial judge furnished a copy of his proposed instructions to the jury. Therein the trial judge set forth that the permissible verdicts for the charge of aggravated rape were guilty, guilty of attempted aggravated rape, guilty of simple rape and not guilty, as prescribed in Article 814 of the Code of Criminal Procedure, as amended by Act 126 of 1973.

Defense counsel objected to this proposed instruction, requesting that the judge instruct, instead, that the permissible verdicts were guilty, guilty of attempted aggravated rape, guilty of simple rape, guilty of forcible rape, guilty of attempted forcible rape and not guilty, as prescribed by Act 334 of 1975, amending Article 814 of the Code of Criminal Procedure.

The trial judge denied the requested instruction and charged the jury in accordance with the written instructions furnished to defense counsel. Objection was made to the denial of the requested instructions and to the instructions given by the trial judge.

The offense in this case occurred on July 27, 1975, at which time the instructions given by the trial judge were in effect by virtue of Act 126 of 1973 amending Article 814. However, at the time of the trial on December 8,1975, Act 334 of 1975, effective September 12, 1975, had further amended Article 814 to prescribe the permissible verdicts which were the subject of defendant’s request for special instructions — that is, guilty; guilty of attempted aggravated rape; guilty of simple rape; guilty of forcible rape; guilty of attempted forcible rape and not guilty.

Recently this court held in State v. Martin, 351 So.2d 92 (La.1977) that the permissible verdicts prescribed by Act 334 of 1975 for a prosecution for aggravated rape are procedural in nature. As such, it was held, they are to be applied retroactively. Thus, according to that decision, at the time of this trial on December 8, 1975, Act 334 of 1975 contained the permissible verdicts applicable to this July 27, 1975 offense which occurred prior to the September 12, 1975 effective date of Act 334 of 1975.

Article 803 of the Code of Criminal Procedure prescribes that when a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814, the court “shall” charge the jury as to the law applicable to each offense. Instructions on permissible verdicts prescribed by law are therefore mandatory. State v. Brown, 214 La. 18, 36 So.2d 624 (1948). Failure of the trial judge to fully charge the permissible verdicts then applicable to the charge in the indictment requires a reversal of the conviction. State v. Martin, supra.

Against these propositions mandating an instruction in this case that the responsive verdicts to this aggravated rape charge should include forcible rape is the fact that the crime of forcible rape did not exist in Louisiana law until it was provided for and established by Act 333 of 1975, effective September 12, 1975.

It is obvious that the trial judge could not instruct the jury that they could find the accused “guilty of forcible rape” or “guilty of attempted forcible rape” as required by Act 334 of 1975 when the crime of forcible rape established by Act 333 of 1975 did not exist at the time this offense was committed. For, while matters of procedure established by statute can have retroactive effect, substantive matters can only operate prospectively. State v. Sepulvado, 342 So.2d 630 (La.1977). Statutes establishing crimes and punishment are of course substantive in nature.

Faced with this dilemma, the trial judge could not give retroactive effect to the responsive verdicts prescribed by Act 334 of 1975. Therefore, he properly instructed the jury that the permissible verdicts were those in effect at the time of the offense, as prescribed in Article 814 of the Code of Criminal Procedure, as amended by Act 126 of 1973, which were the instructions proposed by him.

This assignment has no merit.

Assignment 16

Defendant calls for a review of the entire proceeding for errors patent on the face of the record. Consideration has been given to possible errors discoverable by a mere inspection of the pleadings and proceedings, without inspection of the evidence, but no such errors were found. La.C.Cr.P. art. 920.

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

SANDERS, C. J., concurs and assigns reasons.

SUMMERS, J., concurs in result and will assign reasons.

SANDERS, Chief Justice

(concurring).

As noted in the Per Curiam, the pertinent decision here is State v. Cage, La., 337 So.2d 1123 (1976). I dissented in that case and would prefer to overrule it. However, in affirming the conviction, the present judgment makes that decision prospective only, thus limiting its effect. Hence, I concur.

SUMMERS, Justice

(concurring).

While I agree with the result reached in this appeal, it is necessary that I express my disagreement with the Court’s treatment of Assignments 1, 2 and 3.

As I understand the facts of this case, the general venire from which the grand jury was formed which indicted the defendant Ferguson is the identical venire and grand jury which indicted Cage. (337 So.2d 1123 (La.1976)). It is also the identical venire and grand jury which indicted Harvey and Atwell, (No. 60979 on the docket of this Court), 358 So.2d 1224 and Youngblood (No. 61322, pending on the docket of this Court). 354 So.2d 211. This grand jury was impaneled on March 1, 1975 and remained in office until August 31, 1975.

By this grand jury Harvey and Atwell were indicted on April 3, 1975, Youngblood was indicted on April 17, 1975, Ferguson was indicted on August 7, 1975 and Cage was indicted on August 14, 1975.

According to the record involving the selection and impaneling of the grand jury, service of prospective jurors was not made within the heart of the Desire Project. The Commissioner accounted for the failure to serve residents within the heart of the project by saying the process servers were threatened by the residents of the project, their tires were cut “and everything else”. He stated, however, that residents on the outskirts of the project were served.

Of those who lived within the project and whose names were drawn for inclusion on the jury venire from which the grand jury was drawn, the chairman of the jury commission guessed that less than fifty percent resided within the heart of the project. He was also of the opinion that much less than ten percent of the grand jury venire were residents of the project.

The jury wheel from which the grand jury venire of 425 was drawn consisted of eighteen thousand names. These names were, in turn, taken from files containing two hundred thousand names compiled from the voter registration list. The commissioner could not say how many residents of the Desire Project were included on the list from which the grand jury venire was selected.

A claim that this practice was to systematically exclude residents of the Desire Project is not well-founded. Prospective jurors from the Desire Project were served and included in the list from which the grand jury venire was drawn. While a segment of the housing project was not included because of the danger to the process servers, a reasonable conclusion from the evidence is that the excluded percentage was small. Furthermore, the exclusion, if any did in fact occur, resulting from the temporary situation existing at the time, was not an intentional or systematic exclusion. It was instead justified under the circumstances. La.Code Crim.Pro. art. 409, 409.1; State v. Edwards, 287 So.2d 518 (La.1973). The record indicates that, beginning the next month, September 1975, process servers did in fact serve prospective jurors throughout the project, presumably with the help of police protection not theretofore available.

While the record does not set forth the size or population of the Desire Project, courts can take cognizance of the fact that there are several other projects of like size in the city of New Orleans. La.Rev.Stat. 15:422(6). Together these projects represent only a small fraction of the city’s total population. It cannot be said, therefore, that the Desire Project includes a substantial segment of the community from which the jury was drawn. Only 2,695 of those residents are above eighteen years of age, some of whom were undoubtedly not qualified as jurors — hardly a substantial segment of Orleans Parish where 539,471 citizens reside. La.Code Crim.Pro. art. 401. See 1970 census.

From the foregoing it must follow that the grand jury was selected generally and impartially from a cross section of the community. The record will not uphold a contrary inference, speculation or assumption. Purposeful discrimination may not be assumed or merely asserted. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

In the instant case it is obvious that the jury commission has not totally excluded a definable group from the grand jury panel, a condition which should exist if we are to hold that a cross section of the community is not represented by the jury venire from which the grand jury was selected.

The requirement that a cross section of the community be represented on the jury does not mean that every jury must contain representatives of all the economic, social, religious, racial, political and geographic groups of the community; frequently such complete representation is impossible. Thiel v. Southern Pacific Company, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); La.Const. art. V, § 34; State v. Clifton, 247 La. 495, 172 So.2d 657 (1965).

Reason, the facts and the law support a finding, therefore, that no fraud has been practiced and no great wrong has been committed warranting setting aside the grand jury venire in this case. La.Code Crim.Pro. art. 419; State v. Rue, 236 La. 451, 107 So.2d 702 (1958). It is for these reasons I feel that Ferguson’s conviction should be affirmed. It is for these same reasons that I dissented in State v. Cage, 337 So.2d 1123 (La.1976). As the majority opinion points out, this is the “identical issue in State v. Cage", nevertheless the Court did quash the indictment in Cage. Strangely, the decision in Harvey and Atwell, supra, also resulted in an affirmance of those convictions notwithstanding that the parties stipulated in Harvey and Atwell that the same evidence used in Cage on the issue would be applicable to Harvey and Atwell.

In addition to my disagreement with the decision in State v. Cage, I cannot agree with the majority that “No individual unfairness has resulted in the present ease.”

Fairness cannot result when three indictments are upheld and one is quashed despite the fact that all four attacks on the indictments were based upon the identical contention that the same improper procedure was practiced in the selection of the grand jury venire. So long as courts adhere to the principles of due process of law and equal protection of the laws, such a result should not be condoned. U.S.Const. Amends. 5 and 14; La.Const. art. I, §§ 1 and 3.-

Ferguson will never be convinced that Cage should have his indictment quashed and Ferguson’s indictment should serve to convict him.

While the majority makes the Cage decision prospective only, seeking thereby to avoid overruling that decision, the facts do not lend themselves to a prospective application of Cage. To begin with, the quashing of the indictment in Cage did not “secure correction and purification of the ve-nire-selection procedures held defective therein,” the fundamental premise upon which the validity of that decision depends. Shortly after Cage was indicted on August 14, 1975, and before the indictment was quashed in the trial court on December 15, 1975, the jury commission in September 1975 began serving all those whose names were drawn for the grand jury venire throughout the Desire Project. Purification of the venire-selection procedures had been accomplished when Cage was decided.

Under accepted principles the solution to this case and the dilemma in which the Court found itself was to reverse the decision in State v. Cage, acknowledge the error there, and affirm the convictions in Harvey and Atwell, Youngblood and Ferguson.


author: DENNIS, Justice. CALOGERO, Justice, MARCUS, Justice SUMMERS, Justice

text:
    STATE of Louisiana v. James HARVEY and Rennie Atwell.
    No. 60979.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.
    Concurring Opinion May 26, 1978.

      John M. McCollam, Andrew L. Gates, III, Gordon, Arata & McCollam, New Orleans, for James Harvey.
    Ralph H. Fishman, Peter S. Title, Sessions, Fishman, Rosenson, Snellings & Bois-fontaine, New Orleans, for Rennie Atwell.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

James Harvey, Rennie Atwell, and Diane Lawrenson were indicted for the first degree murder of one Robert A. Alexander. La.R.S. 14:30. Lawrenson’s indictment was subsequently severed from her co-defendants’. She was granted immunity by the State and testified at the trial of Harvey and Atwell, implicating both in the crime. According to the State’s theory of the case, as presented through Lawrenson’s testimony, Atwell, Harvey and Lawrenson conspired to rob Alexander; the murder of Alexander occurred during an armed robbery committed by Atwell and Lawrenson pursuant to the conspiracy; and the proceeds of the robbery were later divided among the three co-conspirators.

After a trial by jury, both Harvey and Atwell were found guilty of first degree murder without capital punishment. They were subsequently sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. On this appeal Atwell relies upon eleven assignments of error and Harvey relies upon nine assignments of error.

ASSIGNMENTS OF ERROR: NO. 1 OF BOTH DEFENDANTS

In these assignments, defendants argue that the trial court erred when it refused motions for severance made prior to trial.

In his motion for severance, Atwell alleged that Harvey would testify that “he was not present during the armed robbery and murder, and that he is wholly innocent and uninvolved in the case,” and that such testimony would have the effect of placing the entire blame for the armed robbery on Atwell.

Harvey argues that he was prejudiced by the failure to sever because he was prevented from calling his co-defendant as a witness in his behalf. La.R.S. 15:461. He contends that “by being denied a severance from Rennie Atwell, James Harvey was in effect denied his constitutional right to compel the attendance of witnesses because he could not even call much less compel Rennie Atwell to take the stand.” He asserts that the joint trial precluded him from calling “the one witness who could have exculpated him from the crime of murder.”

We find that the instant record does not indicate that the trial judge abused his discretion in refusing to sever the trials of the co-defendants. La.C.Cr.P. art. 704 provides:

“Jointly indicted defendants shall be tried jointly unless:
“(1) The state elects to try them separately; or
“(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance." (Emphasis supplied.)

In support of his motion for severance, At-well relied upon State v. Thibodeaux, 315 So.2d 769 (La.1975), for the proposition that a severance is mandated when a defendant presents convincing evidence that his defense is antagonistic to the defense of his co-defendant. In that case, we discussed the import of Article 704 in the face of a claim by co-defendants that their defenses are antagonistic:

“[I]t is clear that defenses of co-defendants are mutually antagonistic where each defendant attempts to place the blame on the other. Under such circumstances, a defendant must defend not only against the state, but also against his co-defendant. In such an instance, justice would require a severance.
“However, mere allegations that the co-defendant intends to point an accusatory finger at the defendant as his own defense is not enough. Article 704 requires the defendant seeking a severance to satisfy the trial judge by convincing evidence that justice requires a severance. While the granting or refusal of the motion for severance is within the sound discretion of the trial judge, his rulings are subject to our review for abuse.” 315 So.2d at 771.

See also, State v. Singleton, 352 So.2d 191 (La.1977).

In the instant case, Atwell’s co-defendant James Harvey testified at the trial. Contrary to Atwell’s assertions, Harvey said nothing which would in any way implicate Atwell in the robbery, rather, he denied any knowledge whatsoever of the armed robbery and the murder of Anderson. To the extent that he refuted state testimony regarding a conversation during which the robbery plot was allegedly concocted, Harvey’s testimony was actually favorable to Atwell. We find in the record no “convincing evidence that justice require[d] a severance,” and we therefore conclude that the trial judge did not abuse his discretion in denying Atwell’s motion.

We likewise find no error in the trial court’s rejection of defendant Harvey’s motion for severance, which was based on his desire to call his co-defendant, Atwell, as a witness. In State v. Medlock, 297 So.2d 190, 193 (La.1974), we set forth the general rule relating to such allegations by stating that “defendants’ bare allegation that a joint trial would deprive them of the right to call the co-defendants as witnesses” is not of itself a sufficient ground to grant a severance. This Court stated that “such an allegation does not, of itself, warrant severance since the co-defendants can plead the Fifth Amendment privilege against self-incrimination at the separate trials.” See also, State v. Hunter, 340 So.2d 226 (La.1976); State v. Baker, 288 So.2d 52 (La.1973). We do not find that the trial judge abused the discretion afforded him by the Louisiana Code of Criminal Procedure in denying James Harvey’s motion for severance. Defendants’ first assignments of error lack merit.

ASSIGNMENTS OF ERROR: HARVEY’S NO. 2 AND ATWELL’S NO. 9

Defendants argue that the trial judge erred in allowing the introduction of State’s Exhibits 3, 4, 5, 6, and 7, photographs of the victim taken at the scene of the crime and at the morgue prior to the coroner’s autopsy. They contend that, under State v. Gilmore, 332 So.2d 789 (La.1976), their offers to stipulate as to the victim’s identity, the cause of his death, and the fact of his death deprived the photographs of any probative value which they might have had and rendered their admission highly prejudicial. The State, however, asserts that the photographs were probative as tending to corroborate the testimony of its eyewitness, Diane Lawrenson, as to the manner in which the robbery was committed and Alexander killed.

In State v. Gilmore, 332 So.2d 789 (La.1976), we discussed the effect of a defense offer to stipulate to the content of photographs offered into evidence by the State. We stated:

“ * * * Particularly where, as here, the fact to be proved is not seriously at issue a judicial admission offers an expeditious means of serving both the State’s interest in meeting its burden of proof and the defendant’s interest in excluding prejudicial material. To reserve to the State the right to accept or reject the stipulation is to forego an objective balancing of these countervailing interests and to invite the State to exploit the prejudicial impact of the evidence. This was demonstrated in the instant case. When the State asked at trial that the photograph be shown to the jury, the judge remarked, T don’t see why the jury has to see the picture;’ but at the State’s insistence, he complied with the request. Implicit in the State’s refusal to accept the stipulation is the suggestion that it sought to gain something more from the admission of the photograph than proof of the murder victim’s identity. If this ‘something more’ was merely the inflammatory effect of the photograph, the trial judge should have had the authority to prevent it.
“On the other hand, a defendant may not be permitted to rob the State’s evidence of its fair and legitimate weight by means of a unilateral stipulation:
“ ‘Nevertheless, a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases), so as to be technically but not practically a waiver of proof.’ Id. [9 Wigmore on Evidence, § 2591 (3d ed. 1940)]
The sensible solution, offered by Wig-more, is to leave the question of admissibility to the trial judge:
“ ‘ * * * Hence, there should be no absolute rule on the subject; and the trial Court’s discretion should determine whether a particular admission is so plenary as to render the first party’s evidence wholly needless under the circumstances.’ Id.
“Therefore, when the case is tried again, it will be for the trial judge to determine whether a stipulation may prevent the admission of the photograph into evidence.” 332 So.2d at 796.

From an examination of the photographs and a survey of the record before us, we are unable to conclude that the trial court abused its discretion in allowing admission of the photographs. Unquestionably, the photographs of the robbery scene and of the victim’s body, showing the entry wound made by the bullet, are corroborative of Diane Lawrenson’s account of the commission of the crime. State v. George, 346 So.2d 694 (La.1977). Further, the photographs in question are not particularly gruesome, although the use of black and white film is certainly preferable to the color photographs here admitted. Taking into account the fact that the defendants’ offer to stipulate diminished considerably the probative value of the evidence, we are nevertheless unable to find that the trial judge abused his wide discretion in determining that the stipulation was not so plenary as to render the State’s evidence wholly needless under the circumstances. State v. Gilmore, supra; State v. Williams, 343 So.2d 1026 (La.1977). Consequently, these assignments present a serious question, but not reversible error.

ASSIGNMENT OF ERROR NO. 2 BY ATWELL

In this assignment, defendant At-well argues that the trial court should have quashed the indictment which charged him with first degree murder because the grand jury was illegally selected as a result of the exclusion of the residents of Desire Housing Project from the grand jury venire. In making this argument, Atwell relies upon our decision in State v. Cage, 337 So.2d 1123 (La.1976). In that opinion, we affirmed a trial court decision granting a motion to quash based upon the identical grounds advanced by the present defendant. Atwell now argues that the Cage decision should be applied retroactively so as to invalidate his indictment by a grand jury drawn from the same jury venire which was reprobated by this Court in Cage.

Today, in State v. Ferguson, 358 So.2d 1214 (La.1978), we determined that “Cage should be applied only prospectively to jury venires improperly constituted by reason of the practices reprobated by the Cage holding, especially since the practices were terminated as a result of the Cage decision.” Id. at 1216.

Accordingly, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 3 BY HARVEY

This assignment presents the issue of the refusal of the trial court to grant defendant Harvey’s motion for a new trial. At the hearing on the motion, Atwell testified that he and Diane Lawrenson had committed the robbery, and that Harvey was in no way involved in the conspiracy. At the conclusion of Atwell’s testimony, the court denied the motion, stating: “I feel the defendant [Harvey] was indeed a principal in the case.”

In State v. Bastida, 271 So.2d 854 (La.1973), this Court considered a similar situation in which a trial court denied a motion for a new trial despite the posttrial exculpatory testimony of a convicted co-defendant. Our holding that the trial judge’s decision to deny the motion fell within the broad range of discretion afforded him was expressed as follows:

“This Court has repeatedly held that the trial judge has wide discretion in ruling on a Motion for a New Trial. Since the judge found as a fact that the allegedly newly discovered evidence is incredible, his denial of a new trial will not be disturbed on appeal. State v. Miller, 254 La. 73, 222 So.2d 862 (1969); See also State v. Cancler, 252 La. 380, 211 So.2d 298 (1968), and authorities there cited.” 271 So.2d at 857.

Although the trial judge in the instant case has not favored us with a per curiam to this assignment of error, it is apparent from his oral comments at the conclusion of the hearing on the motion that he found Atwell’s testimony lacking in credibility. In view of the wide range of discretion afforded the trial judge, there is a sufficient evidentiary basis in the record to support the refusal to grant the new trial. Accordingly, we find that this assignment is unmeritorious.

ASSIGNMENTS OF ERROR NOS. 3 AND 4 BY ATWELL

Prior to trial, Atwell filed written motions to require the State to disclose the prior arrest and conviction records of all jurors and prospective witnesses, or in the alternative, to enjoin the State from using such information. Defendant subpoenaed the district attorney, the first assistant district attorney, the chief investigator of the district attorney’s office, and the superintendent of the New Orleans Police Department in an attempt to prove that the district attorney’s office ascertains the prior criminal records of all jurors and witnesses in a pending case by checking each juror or witness through either the National Crime Information computer or the City of New Orleans Police computer. Defendant alleged that the officials who control the computers will not permit him to use the computers to obtain the same information; he further alleged that no alternative method for acquiring such information was available to him.

The trial judge denied the motion and quashed the subpoenas, stating:

“Well, accepting everything you say to be true, relative to the factual statements, I feel that your motion should be denied.”

Harvey also requested that he be allowed to examine the prior voting records of prospective jurors; his motion was likewise denied by the trial court.

A motion for disclosure of information relating to the prior criminal records of jurors presents an issue analogous to that raised by a defendant’s request for access to the State’s compilation of the voting records of prospective jurors during their service on previous petit juries. Consequently, such motions are controlled by this Court’s decisions in State v. Singleton, 352 So.2d 191 (La.1977); State v. Rey, 351 So.2d 489 (La.1977); State v. McGhee, 350 So.2d 370 (La.1977); State v. Holmes, 347 So.2d 221 (La.1977); State v. Wright, 344 So.2d 1014 (La.1977). In Singleton we reviewed the earlier eases and discussed at length the showing which a defendant must make to support a claim that denial of access to such information constitutes reversible error:

“This issue has recently been before us several times. In the case of State v. Wright, 344 So.2d 1014 (La.1977), the defendant moved before jury selection for a copy of the district attorney’s list which indicated how prospective jurors had voted in prior jury trials and the type of case heard by each of the prospective jurors. We assumed without deciding that the lists were the work product of the district attorney’s office and held that to discover a work product a litigant must demonstrate thait denial of such production would unduly prejudice the preparation of his case or cause him hardship or injustice. We stated that:
“ ‘In order to make such a showing . he would have been required to demonstrate that he could not practicably obtain information from other sources, and that the state intended to use it in selecting the jury. Had defendant done so, he should have been given the information before voir dire or else allowed to question the prospective jurors on the subject.’ 344 So.2d at 1017.
“In State v. Rey, La., 351 So.2d 489, handed down October 10, 1977, the Court again found no merit in defendant’s complaint that he had not been given the lists because:
“ ‘In the present case, the record indicates that the prosecutor assembled his information on the voting records of prospective jurors from the records in the office of the clerk of court and that the same records are available to any defense attorney. The defendant has failed to demonstrate the required prejudicial effect of the denial of access.’
“Moreover, in State v. Holmes, 347 So.2d 221 (La.1977), this Court found defendant's request for lists premature because voir dire examination had not been conducted and defendant had not shown that he could not get the information by other means (i. e. by questioning jurors on voir dire). And in State v. McGhee, La., 350 So.2d 370, handed down September 19, 1977 the Court found error in the trial judge’s refusal to allow counsel to ask prospective jurors on voir dire what the verdict was in previous juries of which they had been a member. * * *
“In the case now before us, we conclude that defendant Singleton has failed to make a showing that he could not gain the information he requested other than by the state’s production of the lists in question. None of the prospective jurors were questioned about their past jury service nor criminal records on voir dire examination. Under these circumstances, we find no reversible error in the refusal of the trial judge to order production of the lists. C.Cr.P. art. 921.” 352 So.2d at 193-194.

In the instant case, the trial judge accepted as true the allegations contained in defendant’s motion — i. e., that the State possessed the information, that it intended to use it in selecting the jury, and that the' defendant could not practically obtain the information from other sources. Under the circumstances, the defendant was then entitled to be “given the information before voir dire or else allowed to question the prospective jurors on the subject.” State v. Wright, supra, at 1017. The defendant was not given the information before voir dire. However, the record provided for our review does not reflect that the defendant was denied the right to question the prospective jurors on the subject. Under these circumstances the trial court’s denial of defendant’s motion for prospective jurors’ criminal records did not amount to reversible error.

Under these assignments' defendant At-well further argues that the trial court erred in refusing to order the State to provide him with the prior criminal records of prospective state witnesses in response to a pretrial motion. Defendant relies by analogy upon State v. Singleton, supra, and other cases concerning discovery of information relating to prospective jurors. In our view, however, defendant’s motion was actually a request for access to exculpatory evidence based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In Brady, the Court stated that the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment . . . .” 373 U.S. at 87, 83 S.Ct. at 1196. This Court in State v. May, 339 So.2d 764 (La.1976) held that Brady can encompass evidence which is materially favorable to the accused as impeaching evidence. See also, Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968).

The Supreme Court, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), enunciated principles for determining the materiality of evidence suppressed by the prosecution, stating:

“ * * * Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable. 96 S.Ct. at 2399.”

However, a trial court’s failure to follow this procedure before trial may not be reversible error. In Agurs, the Court, in delineating the significant and practical difference between the pretrial decision of the prosecutor or the trial judge and the post-trial decision of the judge on the issue of disclosure, stated:

“ ‘The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that [in a post-trial hearing by the court] if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.’ 96 S.Ct. at 2401-02.”

This Court, in State v. May, 339 So.2d 764 (La.1976) adopted and applied the Agurs procedure. See also, State v. Falkins, 356 So.2d 415 (La.1978), No. 60,628.

In the instant case, the defendant’s request for information from the prosecutor, insofar as it called for the prior conviction records of the State’s witnesses, constituted a specific and relevant request. Therefore, we conclude that the trial judge fell into error in not requiring the prosecutor to respond to the specific request of the defendant by stating whether the State had knowledge or possession of the conviction records, and, if so, by not requiring the prosecutor to furnish them to defendant or submit them to the court for a determination as to whether the defendant was entitled to this material.

In light of the procedure established in Agurs, supra, and State v. May, supra, this case will be remanded to the trial court for it to determine, (1) if there was a suppression of subject matter requested for which there was a substantial basis for claiming that materiality existed, and, if so, (2) whether the material suppressed by the State would upon its evaluation in the context of the entire record create a reasonable doubt as to the defendant’s guilt. Should the trial court find such a reasonable doubt exists after its evaluation, a new trial will be required. If the trial court finds there was no suppression of material which should have been disclosed, or if it finds, after an evaluation as described, there is no reasonable doubt as to the defendant’s guilt, the conviction and sentence will be affirmed. Of course, the proceedings and determinations of the trial court will be subject to review by this Court on appeal.

ASSIGNMENTS OF ERROR: NOS. 4 BY HARVEY AND 10 BY ATWELL

In these assignments of error, the defendants contend that the closing argument of the State’s attorney was so prejudicial that they were effectively denied the right to a fair trial. Despite the fact that the defendants requested neither an admonition nor a mistrial, the trial judge did admonish the jury on several occasions after sustaining defense objections to state argument. Although the defendant, by failing to move for a mistrial pursuant to Louisiana Code of Criminal Procedure Articles 770 and 774, waived his right to complain of the action of the trial judge in giving only an admonition, and although the prompt action of the trial judge in strongly ' admonishing the jury probably prevented the inflammatory statements from being so prejudicial as to require reversal, we nevertheless believe that the rhetorical excesses of the prosecuting attorney, which tended to characterize the trial as a vehicle for vindication of the victim, are deserving of comment.

Louisiana Code of Criminal Procedure Article 774 provides that the State’s argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” The article specifically commands that the argument “shall not appeal to prejudice.”

In the instant case the record easily supports a conclusion that the State’s attorney intended to engage in conduct directly vio-lative of the mandate of the article; but the record also reasonably supports the conclusion that the prosecuting attorney was merely transported by the zeal of advocacy and did not intend to inflame the sentiments of the members of the jury. This Court in the past has demonstrated reluctance to find that improper argument was so prejudicial that the defendant was effectively denied a fair trial. However, our past disinclination should not be construed by the State as an indication that flagrant and deliberate prosecutorial misconduct will be countenanced.

Although these assignments raise again an issue over which we have a growing concern, we find that in this case they do not present reversible error.

ASSIGNMENTS OF ERROR NOS. 5 AND 6 BY HARVEY

Defendant Harvey argues that the Court erred in allowing the jury to convict him of the charged offense because he was not proved guilty beyond a reasonable doubt and because the Louisiana principals statute, La.R.S. 14:24, is unconstitutionally vague and overbroad.

Defendant’s claim that the State did not prove his guilt beyond a reasonable doubt presents nothing for this Court to review. Our examination of the record indicates that there was substantial evidence of each essential element of the charged offense, and we therefore find defendant’s contention to be meritless. State v. Lewis, 332 So.2d 223 (La.1976); State v. Douglas, 278 So.2d 485 (La.1973).

Defendant further argues that La. R.S. 14:24 is unconstitutionally vague and overbroad. The statute provides:

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

Article I, Section 13 of the Louisiana Constitution of 1974 provides that an accused in a criminal prosecution “shall be informed of the nature and cause of the accusation against him.” This Court, in State v. Mitchell, 319 So.2d 357 (La.1975), held that the Louisiana constitutional guarantee of due process of law is synonymous with the federal constitutional requirement of statutory definiteness set forth by the Supreme Court in United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954):

“The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”

See also, Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Connick v. Lucky Pierre’s, 331 So.2d 431, 434 (La.1976).

We do not find the statute in question to be either vague or overbroad. The clear language of La.R.S. 14:24 is quite sufficient to “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” The instant assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 5 BY ATWELL

Defendant Atwell contends that he was denied his “right to a speedy trial and due process of law” by the action of the State in “intentionally waiting two and one-half years before obtaining an indictment against him.” A motion to quash, asserting this claim, was filed by defendant’s trial counsel; however, the court minutes of January 27, 1976 indicate that the motion to quash based upon a denial of speedy trial was withdrawn by the defendant. Therefore, the trial court was not called upon to rule on the motion and the issue was not properly preserved for review by this Court. Cf. State v. Neyrey, 341 So.2d 319 (La.1976); State v. Speed, 335 So.2d 28 (La.1976). Defendant’s fifth assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 7 BY HARVEY

Harvey asserts that the trial court erred in denying his motion for a new trial based on the affidavit of a juror, Mrs. Donna Leeson, who stated that she was not convinced beyond a reasonable doubt that he was guilty of the charged offense. The instant situation is controlled by La.R.S. 15:470, which provides:

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

We have consistently held that, under the above-cited article, a juror’s affidavit that he erred in voting for conviction may not be considered on a motion for a new trial. See, State v. Hatch, 305 So.2d 497 (La.1975), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 63, and authorities cited therein.

Defendant’s seventh assignment of error is insubstantial.

ASSIGNMENTS OF ERROR NOS. 7 AND 8 BY ATWELL

Atwell contends that the admission by the trial court of .testimony relating to inculpatory statements made by Harvey which referred to Atwell constituted prejudicial, reversible error on the part of the trial court. He argues that the admission of the statements violated the right to confrontation and cross-examination of witnesses guaranteed to him by both the Sixth Amendment to the United States Constitution and by Article I, § 16 of the Louisiana Constitution of 1974. He relies upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), for the proposition that a correct interpretation of the Sixth Amendment guarantee forbids the admission of such testimony.

Bruton is inapposite to the instant prosecution. The Supreme Court in that case was confronted with a situation in which a co-defendant’s confession was admitted and the confessor chose not to take the witness stand. Bruton’s conviction was reversed because “[pjlainly, the introduction of [the co-defendant’s] confession added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination, since [the co-defendant] did not take the stand.” 391 U.S. at 127-8, 88 S.Ct. at 1623. In the case at bar, however, James Harvey testified and was subject to cross-examination by Atwell’s counsel as to the content of the statements which he purportedly made to Barbara Hooper and Diane Lawrenson. Thus, the rule enunciated in Bruton is not applicable to the case at bar, and defendant’s assignments of error are therefore without merit.

ASSIGNMENT OF ERROR NO. 8 BY HARVEY

Defendant contends that the trial court erred in granting the State’s motion for a continuance and “forcing him to trial with defendant Atwell.” In support of his position, Harvey relies upon Louisiana Code of Criminal Procedure Article 714, which provides:

“When defendants are jointly indicted and a continuance is granted to one of them, the court may grant a continuance to any of the others, on his motion. However, a continuance granted to one defendant shall not deprive other jointly indicted defendants of a prompt trial unless the state can show good ground for continuance as to them.”

Harvey asserts that he was deprived of a prompt trial without an affirmative showing by the State that good cause existed for a granting of the continuance.

In its motion for continuance, the State alleged that the continuance was necessary because the recent extradition of Atwell had made it impossible for his attorney to be ready for trial and because “the State would be forced to bring [witnesses] in from out of town twice if the Court does not grant this continuance.” This Court has repeatedly held that a trial judge’s ruling on a motion for continuance will not be disturbed unless there was an arbitrary or unreasonable abuse of the discretion vested in him. State v. Roberts, 278 So.2d 56 (La.1973); State v. Polk, 258 La. 738, 247 So.2d 853 (1971), and authorities cited therein. A review of the record in the instant case demonstrates that the trial judge did not abuse his discretion by granting a continuance of approximately one month to the State; further, we find that the defendant has failed to demonstrate that he was prejudiced as a result of this delay. La.C.Cr.P. art. 921. Defendant’s eighth assignment is meritless.

ASSIGNMENT OF ERROR NO. 11 BY ATWELL

Defendant Atwell contends that the trial court erred in denying his written motion for special jury charges. Louisiana Code of Criminal Procedure Article 807 provides that such a charge shall be given by the court “if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.” The article further states that the charge “need not be given if it is included in the general charge. . ."

In the instant case, the record designated to this Court by the defendant for our review does not contain the general charge given by the trial court to the jury. Under these circumstances, the instant assignment of error presents nothing for review. State v. Martin, 250 La. 705, 198 So.2d 897 (1967); see also, State v. Fox, 251 La. 464, 205 So.2d 42 (1967).

For the reasons assigned, defendants’ convictions and sentences are affirmed but the case is remanded for further proceedings in accordance with the views expressed herein, reserving unto the trial court the authority to grant a new trial herein and reserving the defendants’ rights to appeal from any adverse ruling by the trial court.

SANDERS, C. J., concurs in the affirmance of the conviction, but otherwise dissents.

CALOGERO and MARCUS, JJ., concur in part and dissent in part and assign reasons.

SUMMERS, J., dissents in part and concurs in part and assigns reasons.

CALOGERO, Justice,

concurring and dissenting.

I believe that the trial court mistakenly refused to grant defendant Harvey’s motion for new trial, and I would therefore find merit in his third assignment. At the motion hearing Harvey’s co-defendant Rennie Atwell testified that he and another person had committed the robbery, and that defendant Harvey was not at all involved, even as a conspirator. Although the majority finds that the trial judge must have found Atwell’s testimony incredible and upholds the presumed holding as a proper exercise of the judge’s discretion I do not agree with that finding. I believe that Atwell’s statement was indeed credible because it was made against his own self interest. He, after all, admitted his personal complicity in the crime at a time when his appeal was pending and his counsel had advised him to remain silent. His counsel informed him j before he testified at the hearing on the motion for new trial that any testimony he gave could be used against him should his case be reversed on appeal and should he be retried. Atwell nevertheless exonerated his co-defendant. Under these circumstances, I believe that in the interest of fairness and justice a new trial was required for defendant Harvey and that the trial judge abused his discretion in refusing his request for one. See State v. Williams, 258 La. 251, 246 So.2d 4 (1971).

Therefore, I respectfully dissent from the affirmance of defendant Harvey’s conviction, although I concur in the majority’s affirmance and remand as to defendant At-well’s conviction.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendants’ convictions and sentences by the majority; I dissent from the remand to the trial court for reasons hereinafter assigned.

I do not consider that prior arrest and conviction records of prospective state witnesses constitute “evidence [which] is material either to guilt or to punishment” under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Moreover, it is not the type of evidence, if omitted, that would create a reasonable doubt as to guilt that did not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Nor do I consider Brady and Agurs applicable to such criminal records as evidence which is materially favorable to the accused as impeaching evi-denee under our decision in State v. May, 339 So.2d 764 (La.1976), involving a possibly exculpatory statement of the accused’s co-indictee. Also, such records are public records available to defendant under La.R.S. 44:1, et seq. Finally, defendant had a statutory right to question the state witnesses at trial as to their prior convictions (cross-examination on prior arrests not permitted) for the purpose of impeaching their credibility. La.R.S. 15:495. No showing is made that defendant’s limited inquiry at trial in this regard did not produce truthful responses.

Accordingly, I respectfully concur in part and dissent in part.

SUMMERS, Justice

(concurring).

I concur in the result in this case for the reasons assigned in my concurring opinion in State v. Ferguson, La., 358 So.2d 1214.

      . For an excellent discussion of the problems encountered by this Court in enforcement of Article 774, see Comment, The Paradox of the Prosecutor: Justice Versus Conviction During Closing Argument, 34 La.L.Rev. 746 (1974).

      . See, e. g., State v. Brumfield, 263 La. 147, 267 So.2d 553 (1972), noted by the author of the above-cited article as a “classic illustration of prosecutorial abuse;” but see also State v. Hamilton, 356 So.2d 1360 (La.1978), No. 60,630; State v. Kaufman, 278 So.2d 86 (La.1973).

      . Harvey’s testimony was to the effect that he had no knowledge of the robbery and had made no incriminating statements whatsoever.

      . See also, Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); State v. Hopper, 253 La. 439, 218 So.2d 551 (1969).