author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Lester SIMS.
    No. 58913.
    Supreme Court of Louisiana.
    May 16, 1977.
    Rehearing Denied June 17, 1977.

      Michael C. Palmintier, Due, Dodson & de Gravelles, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Doug P. Moreau, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Lester Sims and Phillip Schamburger, Jr., were charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. Subsequently, defendant’s case was severed from that of his co-defendant, and, after trial by jury, Lester Sims was found guilty as charged and sentenced to serve thirty-five years in the custody of the Louisiana Department of Corrections. LSA-R.S. 15:529.1. On appeal, defendant relies upon four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in severing his case from that of his co-defendant, Phillip Schamburger, Jr. He argues that either the court lacked authority to sever the cases under LSA-C.Cr.P. Art. 704, or if the court had authority, the court abused its discretion in this case because the severance caused prejudice to him.

Both defendants moved for a severance on May 13, 1976, alleging that their defenses would be antagonistic and that any testimony given by either of them would implicate the other. Neither defendant offered any evidence to support his allegations; consequently, the court denied the motion. Later, on May 24, the date scheduled for the joint trial, the State informed the court that it intended to introduce inculpatory statements made by the defendants. In these inculpatory statements, each defendant implicated the other. The State called attention to the problems which would arise upon their introduction into evidence, and, to avoid any possible violation of the defendants’ constitutional rights, the State offered either to introduce only limited portions of the confessions, deleting the incul-patory references to the other defendant, or to sever the cases. By severing the cases, each confession could then be introduced in its entirety.

Defendants refused to consent to introducing limited portions of the confessions, arguing that they must be admitted in their entirety or not at all. After considering the matter during a brief recess, the trial court reversed its earlier denial of defendants’ motion to sever and ordered the State to sever the cases.

Defendant objected to the court’s severing the cases on the ground that the defense had been structured on the assumption that there would be a joint trial. The court overruled defendants’ objection and ordered the trials to proceed. On May 27, three days after the severance was ordered, this defendant’s trial began.

Louisiana Code of Criminal Procedure Article 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.”

The defendants requested a severance early in the proceedings, which the court denied for lack of evidence in support of their allegations. When information was disclosed which made it evident that the defendants’ right of confrontation, guaranteed by the Sixth Amendment of the United States Constitution, would be jeopardized by a joint trial, the court reversed its earlier ruling. In our opinion, there was no abuse of discretion.

Defendant was in no way prejudiced by the severance. The court ordered the severance three days before defendant’s trial, which allowed defendant the opportunity to re-examine his trial strategy. In a similar case, we found no prejudice to defendant when the severance was ordered three days prior to the trial. State v. Thompson, 256 La. 1019, 240 So.2d 899 (1970).

Moreover, defendant’s contention that the severance was prejudicial because it necessitated a drastic change in trial strategy is untenable in light of the fact that he failed to request a continuance on this ground. Under Louisiana Code of Criminal Procedure Article 712, a continuance would have been the appropriate vehicle to rectify any harsh effects which ordering the severance may have caused to defendant. In view of the facts that defendant has neither proven nor shown any prejudice suffered by him and he requested no continuance, we find his arguments to be untenable.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the trial court erred in denying his motion to suppress in which he argued that statements he made after his arrest but before he was advised of his constitutional rights were inadmissible under the United States Supreme Court holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966). Further, he contends that these statements tainted subsequent confessions, made after he was advised of and waived his Miranda rights, and rendered these confessions likewise inadmissible.

Defendant, on the opening day of his trial, filed a motion to suppress which was heard out of the jury’s presence. The following facts were established at the hearing on the motion: Sergeant Cupit, the arresting officer, testified that, as he was driving into the parking lot of the Stop and Go store, he noticed two men leaving the building. As the first man, identified as Phillip Schamburger, Jr., approached, he pointed a shotgun at the officer. Cupit managed to disarm Schamburger, drew his gun on him, and placed him against the trunk of a car. He then pointed his gun at this defendant who had entered his car and started the engine. Defendant, following the officer’s orders, got out of his car with his hands up and began to walk slowly toward Cupit. At this moment Schambur-ger bolted and escaped through an alley near the store. Believing the alley to be a dead end, Cupit elected to secure defendant’s arrest rather than to pursue Scham-burger. As defendant was approaching the officer, he asked why he was being arrested since he had not done anything wrong. While the record is somewhat unclear, it seems that Cupit responded: “Well, what were you doing here?” and advised defendant that he was under arrest for armed robbery. Defendant replied that he just happened to be in the store when the offense occurred. Cupit then handcuffed him, and after assistance arrived, turned him over to Sergeant Guidry and Detective Kennison.

Sergeant Guidry testified that he asked defendant his name, and defendant identified himself. After a cursory search of the area, Guidry returned to defendant and advised him of his rights. He then requested that defendant tell what had transpired, and defendant responded that he had gone to the store to purchase a magazine. The officer testified that defendant’s demeanor, at this point, indicated that he was about to change his story and, perhaps, implicate himself in the robbery; the officer testified that, for this reason, he then repeated the Miranda warnings to the defendant. In response to a remark by Guidry to “be straight with him,” defendant confessed his involvement in the robbery. He was then taken to an interrogation room at the Detective Office where, after being advised of his rights for a third time and after signing the waiver of rights form, he again confessed. Detective Kennison’s testimony confirmed Guidry’s testimony.

The United States Supreme Court, in Miranda v. Arizona, supra, held that the prosecution may not use statements, either incul-patory or exculpatory, which stem from the custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the right against self-incrimination. Custodial interrogation was defined as questioning by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any way. However, the court emphasized that volunteered statements were not affected.

Other decisions since Miranda v. Arizona, supra, have held that spontaneous, unsolicited and voluntary remarks made by an arrested person, prior to his being advised of his rights, are admissible in evidence and do not taint subsequent inculpatory statements given by the defendant. State v. Holmes, La., 305 So.2d 409 (1974); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971); State v. Hall, 257 La. 253, 242 So.2d 239 (1970). In a strikingly similar situation, protestations of innocence, made by two defendants as they were being arrested but before any Miranda warnings were recited to them, were ruled admissible as spontaneous declarations procured without custodial interrogation. State v. Hall, supra. We find these decisions controlling here.

Assuming that there was a full custodial arrest, because the officer was directing defendant toward him at gunpoint, the issue becomes whether or not there was an interrogation which would necessitate Miranda warnings. Defendant’s question as to why he was being arrested and his statement denying any wrongdoing were volunteered by him without any solicitation by the officer. In fact, the officer’s question was responsive to the conversation initiated by the defendant. We find that, not only was the question responsive, but in the context of the exchange between the defendant and the officer set out in the record, it was rhetorical. The defendant’s statements made prior to his being advised of his rights were not, therefore, the fruit of custodial interrogation but rather were voluntary, spontaneous remarks admissible at his trial.

Since these statements were not obtained in violation of Miranda v. Arizona, supra, they do not taint defendant’s subsequent confessions.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial court erred in overruling his objection to alleged opinion evidence elicited by the State from a witness. He argues that the testimony expressed conclusions drawn by the witness regarding the subjective attitude of the defendant and, therefore, violated LSA-R.S. 15:463 which 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.”

The prosecution called to the stand the victim of the robbery, Darrell Pyeatt, who was asked whether defendant was startled when Schamburger entered the store brandishing a shotgun. Arguing that the question called for opinion testimony, defendant objected to it, but his objection was overruled. Pyeatt then testified that, when Schamburger entered the store with the gun, defendant’s face reflected no visible surprise, shock, or curiosity, but rather his expression appeared passive. He stated that defendant followed Schamburger with his eyes and that he followed him out of the store when the robbery was completed.

As a general rule, a witness may not testify on the basis of a pure opinion; however, he may state natural inferences from facts which he had observed. State v. Da valie, La., 313 So.2d 587 (1975). Pursuant to this exception, testimony as to whether a witness felt that a drunk defendant knew what he was doing when he committed a crime has been permitted, based upon the rationale that the response to the question was based on personal observations of the witness. State v. Neal, La., 321 So.2d 497 (1975). In an early ease a witness’s remark that defendant looked “ghostly” was held to be admissible, since it merely stated a perception of the facial expression of the defendant. State v. Anthony, 166 La. 793, 117 So. 921 (1928). In a similar vein, testimony as to whether defendant was in a “bad humor” was permitted because no skill was required to observe whether an individual was in a quarrelsome mood. State v. Ussery, 178 La. 593, 152 So. 302 (1934).

Applying these standards to the present case, Pyeatt’s testimony describes defendant’s physical facial expression when the crime was being committed. The description of defendant’s appearance as passive and without shock or curiosity recited personal observations of the victim from which a natural inference could be drawn that defendant was in no way startled by what transpired in the store. In the context of the record, the testimony is not impermissible opinion testimony violation of LSA-R.S. 15:463.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Here, defendant alleges that the trial court erred in permitting the district attorney to comment on defendant’s failure to testify in his own behalf during closing argument.

The district attorney, during his closing argument, emphasized that no evidence had been produced by the defense which rebutted defendant’s involvement in or knowledge of the robbery. When these statements were made, defendant did not object nor did he move for a mistrial under LSA-C.Cr.P. Art. 770. In fact, the impropriety of the remarks was not raised by defendant until the hearing on his motion for a new trial. At that time he asserted that the references by the State to the failure of the defense to produce refuting evidence on various key issues of the case constituted impermissible comment on his failure to testify on his own behalf in violation of the fifth amendment and thereby necessitated the granting of a new trial. The trial court denied the motion.

Louisiana Code of Criminal Procedure Article 841 provides:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
“The requirement of an objection shall not apply to the court’s ruling on any written motion.”

We have held that the failure of the defendant to object at the time that the allegedly improper references in the State’s closing argument were made or to request a mistrial constitutes a waiver. State v. Clark, La., 332 So.2d 236 (1976); State v. Watley, La., 301 So.2d 332 (1974). When, as in the instant case, defendant fails to seek corrective measures timely, he cannot secure appellate relief.

Furthermore, if the merits of defendant’s contention are examined, the argument is without merit. Louisiana Code of Criminal Procedure Article 770 provides in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
“(3) The failure of the defendant to testify in his own defense; . . ..”

However, this provision must be read in conjunction with LSA-C.Cr.P. Art. 774:

“The 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 argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

This Court has consistently recognized the propriety of the State’s commenting on the lack of refuting evidence produced by a defendant. State v. Cryer, 262 La. 575, 263 So.2d 895 (1972); State v. Burch, 261 La. 3, 258 So.2d 851 (1972). The district attorney’s references in his closing argument were proper since they were confined to the lack of refuting evidence offered by defendant. They did not constitute a comment on his failure to testify in his own defense.

Assignment of Error No. 4 is without merit.

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


source: Caselaw Access Project

license: Public Domain

text:
    Elizabeth RUTHERFORD, Executrix of the Succession of Joe P. Rutherford v. J. W. RUTHERFORD, Jr.
    No. 58943.
    Supreme Court of Louisiana.
    May 16, 1977.
    Rehearing Denied June 17, 1977.

      David A. Fraser, Brame, Bergstedt & Brame, Lake Charles, for defendant-applicant.
    Jerry G. Jones, Jones, Jones & Alexander, Cameron, for plaintiff-respondent.
   SANDERS, Chief Justice.

The executrix of the donor’s succession brought suit against the donee to annul an inter vivos donation on the ground that there Was an invalid acceptance. The district court annulled the donation. The Court of Appeal affirmed. La.App., 338 So.2d 319 (1976). We granted writs to review this judgment. La., 341 So.2d 409 (1977). We reverse the judgment and sustain the donation.

On November 27,1973, Joe P. Rutherford donated an undivided Vi6th interest in certain Cameron Parish property to J. W. Rutherford, Jr., his nephew. He gave the land “in consideration of the love and affection which he [bore] for his nephew. . . ” A Jennings, Louisiana, law firm drafted the donation. H. Ward Fontenot, a Notary Public, passed the act in the presence of two witnesses.

On November 28, 1973, J. W. Rutherford, Jr., accepted his uncle’s donation by authentic act. This acceptance recited in pertinent part:

“BE IT KNOWN, that on this date before me the undersigned Notary Public and in the presence of the undersigned competent witnesses personally came and appeared:
J. W. RUTHERFORD, JR. . . .
who declared that he has taken cognizance of the Act of Donation by JOE P. RUTHERFORD, passed before Betty Rowe. Notary Public, dated November 28. 1973, of certain property fully described in said Act, and he accepts said Donation with gratitude.
“THUS DONE AND PASSED AT Conroe, Texas, on this 28th day of November. 1973, in the presence of the undersigned competent witnesses and me, Notary Public.
/s/ J. W. Rutherford, Jr.
/s/ Betty Rowe
Notary Public, Montgomery County, Texas.”

Two persons witnessed the execution of this act. The Jennings law firm, which had prepared the donation, also drafted the acceptance.

When the donee presented the drafted acceptance to Betty Rowe, the Texas Notary Public, for notarial execution, the act of donation was attached. After execution of the acceptance, donee’s father filed both authentic acts for recordation on the same date, February 25, 1974. The Clerk of Court’s office assigned both acts the same file number and recorded them simultaneously in the conveyance book on February 28, 1974.

The donor died on March 8, 1974.

The executrix alleges that the donee failed to accept the donation in “precise terms,” as required by Article 1540 of the Louisiana Civil Code. For support she points to the clause indicating that Betty Rowe (the Notary Public for the acceptance) was the Notary Public for the donation, the recital that November 28, 1973 (the date of the acceptance) was the date of the donation, and the absence of the property’s description. Further, she contends that this authentic act was an acceptance of a completely different donation.

Louisiana Civil Code Article 1540 provides:

“A donation inter vivos shall be binding on the donor, and shall produce effect only from the day of its being accepted in precise terms.
“The acceptance may be made during the lifetime of the donor by a posterior and authentic act, but in that case the donation shall have effect, with regard to the donor, only from the day of his being notified of the act establishing that acceptance.” [Emphasis supplied.]

The issue presented is whether the do-nee’s acceptance fulfills the condition that an acceptance be in “precise terms.”

Article 1540 is derived from Code Napoleon Article 932 (1804). It first appeared as Article 54 of the Louisiana Civil Code of 1808 and later as Article 1527 of the Louisiana Civil Code of 1825. The French text of these articles provides that the acceptance be in “termes exprés.”

Article 1541’s source, Louisiana Civil Code Article 1528 (1825), contains the identical French phrase. However, there the phrase has been translated as “express terms.” Article 1541 states:

“Yet, if the donation has been executed, that is, if the donee has been put by the donor into corporeal possession of the effects given, the donation, though not accepted in express terms, has full effect.” [Emphasis supplied.]

Articles 1540 and 1541 are in pari materia. One requires an acceptance in “termes exprés,” and the other deals with exceptional effect of the absence of an acceptance in “termes exprés.” Therefore, we construe them together. LSA-C.C. Art. 17. As a discrepancy exists between the English translations in these consecutive articles, the definition of the French phrase is helpful in determining the import of an acceptance in “precise terms.” In proper context, “termes” means wording, terms, expression. “Exprés” means express, precise, formal, positive, distinct, explicit, clear. Part 1, Volumes I and II; Harrap’s New Standard French and English Dictionary; ed. by J. Mansion; rev. and ed. by R. Ledésert and M. Ledésert; 1972; The New Cassell’s French Dictionary; rev. by D. Gir-ard; 1971.

In considering an acceptance in “precise terms,” this Court has used such terminology as “express acceptance” and “formal acceptance.” See Works v. Noble, 177 La. 681, 149 So. 423 (1933); Gabert v. St. Tammany Yacht Club, 166 La. 57, 116 So. 667 (1928); In re Mora’s Estate, 51 La.Ann. 316, 25 So. 123 (1899); Packwood v. Dorsey, 6 Rob. 329 (1844); Comment, Louisiana’s Approach to Gratuitous Inter Vivos Dispositions, 22 Loy.L.Rev. 743,576, n. 62.

We hold that the requirement that a donee accept the donation in “precise terms” obligates a donee to use express, formal, and unconditional language in his acceptance. This codal provision, we think, requires an explicit acceptance. A tacit acceptance or an acceptance inferred from the circumstances will not suffice.

Planiol’s interpretation of Article 932 of the Code Napoleon (1804) (Art. 1540) supports our conclusion. In his treatise, he states:

“Formality of Acceptance
“Donation is a contract and it naturally presupposes the consent of the donee. He must accept what is offered to him. This acceptance can not be expressed in just any manner: it must be formal, that means (1) express, and (2) notarized.
“EXPRESS FORM. Art. 932 [Art. 1540] requires that the donation be accepted ‘expressly.’ In ordinary contracts, the acceptance can be tacit, inferred from the circumstances such as the party’s presence during the transaction and his signature. In ease of donation, the statute requires a specific mention of the acceptance. No ritual words have to be used. The term ‘accept’ can be replaced by other terms. Actually the simplest way is to say that the donation is ‘made to such-and-such person, who accepts it.’
“NOTARIAL FORM. Because the acceptance is an essential element of the contract, it must be in the same form as the offer, that means in a notarial instrument, filed with the notary (Arts. 931, 932, par. 2 [Arts. 1536, 1540, par. 2]). Only those cases in which a donation can be made without a notarial instrument are excepted.”

Vol. 3, Par. 2; M. Planiol, Treatise On The Civil Law; §§ 2562-2563; p. 255 (11th ed. Louisiana State Law Institute transí. 1938).

Here the act of acceptance states that the donee “accepts said Donation with gratitude.” We conclude that these words of acceptance conform with Article 1540’s requirement that the acceptance be in “precise terms.”

In addition, we find that Article 1540’s mandate that the donor receive notice of the acceptance has been satisfied. The acceptance was filed and recorded prior to the donor’s death. This recordation notified the world of the donee’s acceptance. See LSA-R.S. 9:2721; Wells v. Joseph, 234 La. 780, 101 So.2d 667 (1958); Nunez v. Collins, La.App., 180 So.2d 553 (1965).

The errors in the descriptive portion of the acceptance are inconsequential to the validity of the donation. The Notary Public who passed the acceptance inadvertently inserted her own name and the date of the acceptance into the blanks provided for the name of the Notary Public who passed the donation and the date of the donation. There can be no doubt, however, as to which donation the acceptance referred. The names of the donor and donee are correctly given, and the donor made only one inter vivos donation to his nephew.

Similarly, the failure of the acceptance instrument to describe the property donated is insignificant. Both instruments were recorded together and bear the same file number. Moreover, the acceptance refers to the donation for the property description. See Lee v. Long, 166 La. 1084, 118 So. 320 (1928).

The record contradicts the executrix’s final contention that the donee accepted a different donation. Joe P. Rutherford made only one donation to his nephew during his lifetime. Hence, by the act in question, J. W. Rutherford, Jr., accepted his uncle’s donation of an undivided interest in the Cameron Parish property.

For the reasons assigned, the judgment of the Court of Appeal is reversed. Judgment is rendered in favor of the defendant, J. W. Rutherford, Jr., and against the plaintiff, Elizabeth Rutherford, dismissing plaintiff’s suit. All costs are assessed against the plaintiff.

      . There is no article corresponding to Article 1541 either in the Code Napoleon (1804) or the Louisiana Civil Code of 1808.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Ernest DANIELS.
    No. 58938.
    Supreme Court of Louisiana.
    May 16, 1977.
    Rehearing Denied June 17, 1977.

      Arthur A. Lemann, III, Supervising Atty., New Orleans, Elizabeth A. Tunks, Student Practitioner, Loyola Law School Clinic for amicus curiae.

      A. J. Schmitt, Jr., Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On February 7, 1975 Ernest Daniels and Edward Watson were charged by bill of information with the armed robbery of an employee of an Allstate Loan office on August 15,1974, in violation of R.S. 14:64. On May 9,1975, after a trial by jury, defendant Watson was found not guilty but defendant Daniels was found guilty as charged. Subsequently, after a hearing was conducted on July 25, 1975, defendant Daniels was sentenced as a multiple offender to serve ninety-nine years at hard labor. On appeal defendant relies upon six assignments of error for reversal of his conviction.

Assignment of Error No. 2

Supreme Court Rule XX provides for limited participation by law students in trial work. Rule XX, § 3 requires that the defendant and the supervising attorney must consent in writing to the eligible law student’s participation, and that this consent must be brought to the attention of the trial judge and filed in the record. Initially defendant was represented by Basile Uddo, as supervising attorney, and two Tulane Law School students participating in the school’s clinical education program. Defendant and Mr. Uddo consented in writing to the students’ participation these consent forms are filed in the record. Shortly prior to trial it became necessary for Mr. Uddo to go out of town. He requested that Frederick W. Bradley, a licensed attorney, substitute for him at trial. Mr. Bradley did not execute a written consent to act as supervising attorney and defendant did not again consent in writing to the participation of law students. On this basis defendant contends in this assignment of error that Rule XX was violated and thus mandates that his conviction be reversed.

Although a second written consent form was not signed by defendant, the record reveals the following exchange which transpired prior to trial out of the presence of the jury:

“THE COURT:
Mr. Daniels, step forward and stand by that microphone. (Defendant complies). Prior to trial today Mr. Bradley interviewed you and stated you had no objection to Mr. Bradley being present since he had been present on numerous pretrial motions, to him representing you with Mr. Dreischarf and Miss Theissen, [the student practitioners the defendant previously consented to have represent him] is this correct?
BY ERNEST DANIELS, THE DEFENDANT:
Yes.
THE COURT:
You recognize Mr. Uddo, and we are going to trial with your consent with Miss Theissen and Mr. Dreischarf and Bradley as your counsel, is this agreeable to you? BY ERNEST DANIELS, THE DEFENDANT:
Yes, sir.”

The foregoing indicates that defendant Daniels fully consented to the student participation in his defense. There was substantial compliance with Rule XX, § 3, and this assignment does not present reversible error.

Assignment of Error No. 3

In State v. Hoffman, La., 345 So.2d 1, this court held that C.Cr.P. 784 requires that the jury panel be selected from the petit jury venire indiscriminately and by lot in open court. In this assignment defendant contends that since the jury panel in this case was not selected by lot in open court, his conviction must be reversed.

In Hoffman the defense attorney timely objected prior to voir dire to the procedure of selecting the jury panel other than in open court. However, in the case before us, the transcript indicates and the minutes reflect that the defense attorney objected to this procedure only after voir dire and after the jury had already been selected. Therefore, the objection was untimely, and this error was waived. C.Cr.P. 841.

Assignment of Error No. 4

In this assignment defendant contends that the trial judge erred in permitting a defense witness, Tyrone Simpson, to refuse to .testify on defendant’s behalf on the basis of the Fifth Amendment privilege. Defendant alleges that although Simpson told the police of his involvement in the robbery, this accusation was false and was induced by a desire to stop the police from beating him.

Defendant called Tyrone Simpson as a witness and the following occurred:

“BY MR. DREISCHARF:
Q Mr. Simpson, would you — do you know Ernest Daniels?
A I refuse to answer that question under the grounds that it might incriminate me.
MR. DREISCHARF:
No further questions, your Honor.
THE COURT:
Mr. Masinter, you have questions?
DIRECT EXAMINATION BY MR. MASINTER:
Q Will you take the Fifth Amendment as to all questions asked of you?
A I refuse to answer that question as it may incriminate me.
MR. MASINTER:
No further questions.
THE COURT:
The witness is excused. Next witness for Ernest Daniels.”

Defense counsel at trial did not attempt to traverse the witness’ allegation that the answer might tend to incriminate him. In fact, as the record reveals, the defense attorneys appeared satisfied with the witness’ response. On appeal defendant now contends that the judge should not have allowed the witness to utilize the Fifth Amendment privilege. Since the court was not apprised of the action which counsel desired him to take, there is no erroneous ruling preserved for our review. C.Cr.P. 841, 920.

This assignment lacks merit.

Assignment of Error No. 5

Defendant argues that the trial judge unduly restricted cross-examination and impeachment of two prosecution witnesses. Defendant contends that Mrs. Ellenbush, a witness to the armed robbery, testified at trial that she did not remember whether defendant had facial hair at the time of the robbery. Defendant alleges that he attempted to impeach this testimony in the following manner:

“Q Didn’t I ask you if the man you recognized had facial hair?
A If he had what?
Q Facial hair. Hair on his face, mustache.
A I don’t remember if you did or didn’t.
Q Do you remember that you said, ‘He didn’t have facial hair?’
MR. DUSSOUY:
Objection. She is testifying.
THE COURT:
I think counsel is right. You are testifying. I sustain the objection.”

Defendant also contends that Mr. Madere testified at the preliminary hearing that he was shown an initial set of photographs about two weeks after the robbery, but that he did not identify any one from those pictures. He also testified that he was shown another group of pictures at a later time, but that he did not know the date or the month. At trial Mr. Madere testified he was shown the first batch of pictures four to six weeks after the robbery or maybe “a little less than that,” and the second batch on January 9, 1975. The following exchange then occurred:

“Q Mr. Madere, I asked you the same questions at the preliminary hearing.
MR. DUSSOUY:
I object to defense counsel testifying, your Honor.
THE COURT:
Sustained.
Q Mr. Madere, did you tell me at that time that you made the identification less than—
THE COURT:
Same objection, you are testifying.”

R.S. 15:493 provides in part that “[wjhenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement . . . ” (Emphasis added). In the instant case, Mrs. Ellenbush did testify at trial that she did not remember whether defendant had facial hair at the time of the robbery. However, this testimony was not adduced until sometime after defense counsel attempted to “impeach” her in the foregoing manner. Thus, although defense counsel attempted to lay the foundation to impeach the witness, since the testimony which allegedly was contradictory to a previous statement had not yet been adduced, the judge properly ruled that defense counsel was “testifying.” Thus, the questioning was improper cross-examination and impeachment and the questioning was properly limited.

At the preliminary hearing Mr. Mad-ere was not sure when he saw the first batch of pictures but he thought it was “quite awhile later.” Upon further examination he finally testified that it was “probably two weeks later.” At trial he was not sure when he saw the first batch of pictures and stated it was “four to six weeks [later], I don’t know. It may have been a little less than that.” Thus, the previous testimony was not substantially contradictory to the trial testimony. Although the judge may have improperly ruled that defense counsel was testifying, it does not appear that defendant was substantially prejudiced by the ruling.

This assignment does not present reversible error.

Assignment of Error No. 6

This assignment of error concerns allegations that defendant’s trial counsel was ineffective. (Counsel on appeal did not -represent defendant at trial). We offer no opinion as to the merits of defendant’s contentions. This matter has not been raised in the court below. Such allegations must be presented through a post-conviction writ of habeas corpus; they do not present issues reviewable under this appeal. C.Cr.P. 841, 920; State v. Tucker, 332 So.2d 797 (La.1976); State v. Mouton, 327 So.2d 413 (La.1976).

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

      . In Assignment of Error No. 1 defendant contended that his counsel, appointed for appeal purposes, was wrongfully denied a transcript of voir dire and closing argument. These proceedings have now been transcribed. They disclose no error reviewable on appeal.


author:
CALOGERO, Justice.
      SUMMERS, Justice

text:
    In re Judge Allen M. BABINEAUX, Fifteenth Judicial District Court, et al.
    No. 59562.
    Supreme Court of Louisiana.
    May 16, 1977.
    Rehearing Denied June 17, 1977.

      John P. Nelson, Jr., Patricia E. Saik, Nelson, Nelson & Lombard, Ltd., New Orleans, for plaintiffs-respondents.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., Eugene J. Murret, New Orleans, for Judiciary Commission of Louisiana.
   CALOGERO, Justice.

The Judiciary Commission of Louisiana, a constitutional body charged with initiating disciplinary action against judges for, among other things, willful misconduct relating to official duty and persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, determined after preliminary investigation made on their own motion that respondent judges had persisted in serving on the Boards of Directors of certain financial institutions or businesses affected with a public interest in violation of Canon 5(C)(2) of the Code of Judicial Conduct, and notified the respondent judges that a hearing would be instituted to determine whether there was cause for disciplinary action as provided by Article V, section 25(C) of the Louisiana Constitution of 1974.

The judges filed an answer to the complaint in which they attacked Canon 5(C)(2) on constitutional grounds. Independently, they filed a suit for declaratory judgment in the Civil District Court for the Parish of Orleans to have the canon declared unconstitutional. In that proceeding, on application of the Judiciary Commission of Louisiana, we granted writs to determine the constitutional question, 336 So.2d 218 (La.1976), and in a decision of December 13, 1976, we declared Canon 5(C)(2) of the Code of Judicial Conduct constitutional. Babineaux v. Judiciary Commission, 341 So.2d 396 (La.1976) [hereinafter Babineaux].

In Babineaux we found nonmeritorious the judges’ contention that their constitutional right of due process and equal protection as well as freedom of association were offended by the canon. In that decision we. pretermitted the question of whether or not service as a director of a financial institution in violation of Canon 5(C)(2) is per se proscribed conduct under Article V, section 25(C) of the Louisiana Constitution of 1974. We concluded that this particular question was not then properly before the Court, because the Judiciary Commission, which is vested with the initial responsibility of investigating judicial misconduct and, when justified, making appropriate recommendations to this Court for disciplinary action, had at that time made no finding and/or recommendation.

Subsequent to that decision, the Judiciary Commission held its hearing in the disciplinary matter, that hearing having previously been stayed by us pending resolution of the declaratory judgment action. Each of the seven respondent judges testified at the hearing. Following the hearing, the Judiciary Commission took the matter under advisement and on February 5, 1977 the Commission found that each of respondent judges “has been and remains in open violation of Canon 5(C)(2) of the Code of Judicial Conduct and that said violation per se constitutes persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” The Commission’s findings of fact and conclusions of law also stated that “each of respondents has been and is well aware of the existence of [the] Canon,” that “the Louisiana Supreme Court recently upheld the constitutionality of the Canon and its applicability to respondent judges,” that “[e]ach respondent has been given ample notice and ample opportunity to comply with the Canon” and has nonetheless “continued to violate the Canon.” Additionally, it found each respondent judge guilty of willful misconduct. The Commission thereupon recommended that each of the respondent judges be suspended without salary until such time as he complies with Canon 5(C)(2) by resigning his directorship or directorships on the financial institution on which he is currently serving. Under Article V, section 25 of the Louisiana Constitution, this Court must pass upon these recommendations and it is for this reason that the matter is presently before this Court.

The authority of the Supreme Court to discipline judges and the Judiciary Commission’s power to recommend such measures is contained in Article V, section 25(C) of the Louisiana Constitution of 1974 which provides:

“On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony. On recommendation of the judiciary commission, the supreme court may disqualify a judge from exercising any judicial function, without loss of salary, during pend-ency of proceedings in the supreme court. On recommendation of the judiciary commission, the supreme court may retire involuntarily a judge for disability that seriously interferes with the performance of his duties and that is or is likely to become permanent. The supreme court shall make rules implementing this Section and providing for confidentiality and privilege of commission proceedings.” (emphasis added)

The provision has been implemented by Supreme Court Rule XXIII which grants to the Judiciary Commission the power to make investigations, hold hearings, and advise this Court whether it believes that a judge is guilty, among other things, of willful misconduct relating to his official duty, or persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. The Code of Judicial Conduct was adopted by the Court pursuant to its constitutional supervisory jurisdiction over all other courts, see La.Const. art. V, § 5(A)(1974), and after lengthy deliberation on the need for greater specificity in some areas of ethical standards. For detailed historical development of the canon, see Babineaux, supra, at 399. This Code, like the Canons of Judicial Ethics which it replaced, is binding upon members of the judiciary. In re Haggerty, 257 La. 1, 241 So.2d 469 (1970). Canon 5(C)(2) of the Code provides in pertinent part that:

“a judge may hold and manage investments, including real estate, and engage in other remunerative activity but should not serve as an officer, director, manager, or employee of any bank, lending institution, homestead or savings and loan association, insurance company, public utility, and other businesses affected with a public interest.”

The issue now before us is the merit of the recommendation of the Judiciary Commission that the seven respondent judges, who retain positions proscribed by Canon 5, be suspended without salary until they comply with the canon by resigning their directorships.

The respondent judges in these proceedings again contend that the canon violates the equal protection guarantees of the federal and state constitutions, that it violates substantive and procedural due process rights of the judges because it is an arbitrary and unreasonable exercise of state power, and that it violates the first amendment because it literally establishes guilt by association alone. They acknowledge that this Court has already passed on these constitutional challenges but submit that the assumptions that provided the basis for finding this canon to be a reasonable exercise of power are not substantiated by the facts presented at the Judiciary Commission hearing. They contend further that, even if the canon passes muster on the constitutional challenges, disobedience of it does not constitute “willful misconduct relating to his official duty” or “persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute” either as a per se rule or as applied on a case by case basis to each of them. They further contend that the fact that they have taken full exercise of their legal rights to challenge the canon, standing alone, cannot be considered a breach of either of the constitutional prohibitions because such a holding would exert a chilling effect on the free and full exercise of the right to challenge the rules.

The matters before us for present consideration therefore are limited. They are 1) whether we should reconsider, as requested by respondents, the constitutional issues already ruled upon adversely to the judges in the earlier decision, in light of the record which has been made up before the Judiciary Commission; 2) whether, assuming that Canon 5(C)(2) is again held constitutional, their conduct in desisting from resigning their respective positions continues grounds under Article V, section 25(C) of the Constitution for disciplinary action; and 3) assuming we reach the issue, whether and to what extent respondents should be disciplined.

Armed with the final judgment of this Court holding the canon constitutional, the Judiciary Commission at the hearing presented no evidence other than proof that the respondent judges were persisting in violating the canon by remaining as directors on their respective boards. The judges, on the other hand, presented unopposed testimony supportive of their contention that there was no substantial conflict or risk of conflict between their duties as judges and as directors, that litigation in their respective courts by institutions on whose board they sat was rare or nonexistent, that they did not solicit business for the respective institutions, that they preferred not to be denied their freedom of association, and that resigning would constitute a financial hardship for them.

Respondents’ first contention is that the rationale on which the Court found the canon constitutional was shown by them to be unfounded in their particular situations, and the canon is therefore unconstitutional as it is applied to them. We have found the restriction neither unreasonable nor arbitrary on its face because it serves to reduce the possibility that a judge would, or would seem to, use the prestige of his judicial office to attract business for the financial institution, to eliminate the potential conflict between a director’s fiduciary duty to the corporation and his judicial duties, and to lessen the possibility of conflict of interest for the judge revolving around litigation before the court. The judges argue that they have overcome the presumption that the statute is unconstitutional as to them, because they have shown that none of the financial institutions involved gives its directors the responsibility of soliciting new accounts, that none have brought in any new accounts (other than family members), and that very seldom have any of these judges had to recuse themselves because of litigation in their court by their financial institutions. We find that this showing does not overcome the presumption that the restriction is constitutional as it is applied to them.

Furthermore, our judgment in the declaratory judgment suit holding the canon constitutional is final. We will not in this litigation reconsider the issues decided there. Even were we inclined to do so, nothing presented by respondents convinces us that we erred in that original determination. This matter has already been resolved.

Respondents’ second contention, that violation of Canon 5(C)(2), standing alone, does not fall within the conduct proscribed by Article V, section 25(C) warranting disciplinary sanctions upon recommendation of the Judiciary Commission, has not yet been answered by this Court because that question was pretermitted in the earlier opinion. The issue raised here is whether the retention of board membership on a named financial institution, in direct conflict with the canon of the Code of Judicial Conduct, constitutes either “willful misconduct relating to his official duty” or “persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute” so as to be a ground for discipline under the constitutional power of this Court. See La.Const. art. V, § 25(C) quoted above. The Commission found that the respondents’ retention of these proscribed positions, after this Court’s recent judgment upholding the canon’s constitutionality and despite ample opportunity to comply, constituted both willful misconduct and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

We essentially agree with the Commission’s conclusion for the following reasons. This Court has the constitutional authority, power and duty under Article V, section 5(A) to supervise all the courts of this state, with the right to establish procedural and administrative rules not in conflict with law, and the right to adopt standards of ethical conduct for judges. We have exercised that authority by adopting the Code of Judicial Conduct effective January 1, 1976. Included in that Code of Judicial Conduct is the canon here at issue which prohibits judges serving as directors of banks, homesteads and other business affected with a public interest. We have determined that this canon, Canon 5(C)(2), is constitutional. The Code of Judicial Conduct is binding on members of the judiciary. In re Haggerty, supra. Respondent judges have violated the canon, albeit for reasons which in their judgment required them to do so.

We find it unnecessary to decide whether what they have done by continuing to serve and refusing to resign is willful misconduct relating to their official duties, because we are satisfied that their conduct falls within the other constitutional proscription relied upon by the Judiciary Commission, namely, that it is persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. The conduct is undeniably persistent and, contrary to respondents’ positions, it is also public. Even without the publicity attendant to this litigation, respondents’ service on boards of directors of financial institutions (banks, homesteads, etc.) was and is open and cognizable to those members of the public, and the bar, with sufficient interest or inclination to want to know. In our view it is also prejudicial to the administration of justice bringing the judicial office, and the judiciary in general, into disrepute, to have judges who are constitutionally subject to the supervision of this Court deliberately, continuously and openly refusing to comply with a valid canon of ethics.

Rules, including rules of judicial conduct, are made to be followed, not disregarded. There would have been little purpose in the adoption of the Code of Judicial Conduct if they were to be merely hortatory. As was stated by the Supreme Court of Oregon in In re Hannon, 214 Or. 51, 59, 324 P.2d 753, 756 (1958):

“The rules promulgated by this court concerning professional and judicial ethics are not merely pious exhortations. They were established to be obeyed and they create rights corresponding to the duties imposed.”

Judges are not merely elected public officials. Their role in the administration of justice makes them a special breed. The administration of justice requires adherence by the judiciary to the highest ideals of personal and official conduct. If judges openly flaunt the legal and constitutionally sanctioned and adopted Canons of the Code of Judicial Conduct, there is no question but that such persistent and public conduct is prejudicial to the administration of justice and that it does bring the judicial office into disrepute.

Having found that respondent judges’ conduct constitutes grounds under Article V, section 25(C) of the 1974 Louisiana Constitution for disciplinary action, we need turn to the question of the extent to which respondents should be disciplined.

We are not unmindful of the fact that these respondent judges have violated the canon primarily in order to have their rights fully and finally tested in court. And we are aware of nothing in the backgrounds of these fine judges or in the manner in which they have conducted their respective offices except such as is exemplary. They are good judges who are being required to suffer personal economic deprivation brought on by evolving concepts of ethical propriety. As we have already pointed out, serving as members of boards of directors of these institutions had been permitted until relatively recently.

It is therefore with a degree of reluctance but with a commitment to duty that we are constrained to take disciplinary action against the respondent judges. We do so purely and simply to enforce Canon 5(C)(2), a function which is our constitutional duty.

Article V, section 25(C) of the 1974 Louisiana Constitution, appropriate to this case, permits censure or suspension with or without salary. Censure we deem inappropriate at this time, because the judges were in apparent good faith belief that their refusal to abide by Canon 5(C)(2) did not amount to constitutional cause for disciplinary proceedings against them. We are unwilling to censure them for having chosen to defend their view of the constitution by the present proceedings. Nevertheless, (preter-mitting whether censure or other disciplinary sanction, in addition to suspension from office without salary might be appropriate if respondents persist hereafter in violating the canon) in order to enforce our ruling, the discipline we now choose to impose is suspension from office without salary, subject to a grace period of thirty days from the date of finality of this judgment. During such grace period they will have the opportunity to resign their positions as members of the board of directors of their respective financial institutions. If, at the expiration of that thirty day period, any of the respondents still have not complied with the canon, by resigning their board positions, they shall be suspended until such time as they do so.

For these reasons, the recommendation of the Judiciary Commission that the seven respondent judges be suspended without pay until they comply with Canon 5(C)(2) of the Code of Judicial Conduct is adopted. Such action, however, shall be suspended for thirty days from the date of finality of this judgment' and then shall be imposed only on those judges who have not come into compliance by that date. Respondents are reserved the right to apply for a rehearing.

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

SUMMERS, Justice

(concurring in part and dissenting in part).

While I agree with the reasons assigned for finding that the respondent judges have violated Canon 5(C)(2) of the Code of Judicial Conduct, I am of the opinion that they should not be suspended without pay until they comply. In my view censure is more appropriate.

      . The respondent judges in this proceeding are the following: Judge Allen M. Babineaux of the Fifteenth Judicial District Court; Judge B. I. Berry of the Fifth Judicial District Court; Judge Lucien C. Bertrand, Jr. of the Fifteenth Judicial District Court; Judge Louis G. DeSonier, Jr. of the Twenty-fourth Judicial District Court; Judge Edward N. Engolio of the Eighteenth Judicial District Court; Judge John C. Morris, Jr. of the Fifth Judicial District Court; and Judge Walter C. Peters of the Thirty-first Judicial District Court.


author: CALOGERO, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Sammy K. LEE.
    No. 58826.
    Supreme Court of Louisiana.
    May 16, 1977.
    Rehearing Denied June 17, 1977.

      Richard V. Burnes, Gravel, Roy & Bumes, Alexandria, James A. Hobbs, West Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Sammy K. Lee was indicted for the second degree murder of Johnny Lane Etchieson which occurred during a dispute in a trailer park in Monroe, Louisiana. He was tried by jury and found guilty of second degree murder. On appeal, we reversed that conviction because the trial court erred in refusing to receive testimony as to decedent’s dangerous character in support of the accused’s plea of self-defense, after the defendant had laid the requisite foundation. State v. Lee, 331 So.2d 455 (La.1975). Defendant Lee was retried, found guilty of the lesser included crime of manslaughter, and sentenced to twenty-one years at hard labor. Because the judge in the case under present consideration did not, on defendant’s motion, grant a mistrial to which we conclude defendant was entitled, we again reverse the conviction, vacate the sentence and remánd the case to the district court.

The state strenuously argues that defendant waived any right to object and move for a mistrial by allowing the same purported error (which we will shortly discuss) without objection on an occasion earlier in the trial. For this reason we deem it wise in explaining the matter to review the pertinent occurrences sequentially.

As previously related, defendant Lee was being tried a second time after the first conviction was reversed on appeal. A number of witnesses who had testified at the initial trial testified anew. Apparently as a result of that fact, several of the witnesses upon being questioned were referred to earlier testimony which they had given. In laying a foundation to impeach one of the defense witnesses, Mrs. Goldie Cooper, on the basis of her inconsistent testimony at the first trial, the prosecutor asked her if she had testified in this matter “back on an earlier date in this trial.” There was no objection to this question and the answer thereto, but then, the question was not so explicit so as to inform the jury that the defendant had been previously tried and convicted. Shortly thereafter the assistant district attorney, in questioning the defense witness Michael Cooper, alluded to the date of the first trial, got a negative response to the question whether that witness had testified at the prior trial, then stated “that was the first time you testified in court after the conviction and motion for new trial. Is that right?” To which the witness responded, “Yes, sir.” Again there was no objection, no motion for a mistrial by defense counsel.

In closing arguments there was no mention of the previous trial or conviction by either attorney. During the state’s rebuttal argument, however, the prosecutor made several references to the first trial and two very specific references to the fact that on that first trial defendant had been convicted of murder. Shortly following these latter references, counsel for the defendant interrupted the prosecutor’s rebuttal argument and moved for a mistrial on the ground that these prejudicial and improper remarks of the district attorney warranted a mistrial under Article 770.

There is no doubt but that the district attorney in rebuttal argument referred directly to defendant’s earlier conviction for this offense. We believe that it was substantial prejudicial conduct and that such made it impossible for defendant to obtain a fair trial. See constitutional guarantees of a fair trial in La.Const. art. I, §§ 2, 16 and U.S.Const. fourteenth amendment. When a conviction is reversed on appeal, our law requires that a retrial shall be conducted “with as little prejudice to either party as if it had never been tried.” C.Cr.P. art. 857. As the official revision comment to Article 857 notes, the article expresses the “sound rule . . . that the slate is wiped clean when a new trial is granted.” We interpreted that article in State v. Reed, 324 So.2d 373, 380 (La.1975) in this way:

“As a minimum, it would seem that the article was intended to mask from the jury members the fact that a defendant before them had previously been tried, with their possible conclusion that he had previously been convicted.”

This rule was set down over one hundred years ago in State v. Hornsby, 8 Rob. 583, 587, 18 La. 316, 318 (1845) wherein it was stated:

“What is a new trial? ‘It is a re-hearing of the case before another jury; but with as little prejudice to either party as if it had never been heard before. No advantage is to be taken of the former verdict on the one side, or the rule of court, for awarding such second trial on the other.’ Blackstone, 3d vol. p. 391. A new trial results then, in placing the case exactly in the position it occupied before there had been a trial, in relation to the objects for which it had been awarded, and, with this qualification, all proceedings are set aside, and the party stands as if he had never been tried; and when this court, on the former appeal, ordered, that ‘the judgment of the criminal court be set aside, cancelled and reversed,’ the defendant stood again before that court as he stood before the trial — unprejudiced and in the full possession of all his rights, just as they existed when he first answered to the indictment.”

It is a jury’s duty to determine a criminal defendant’s guilt or innocence on the strength of the evidence presented to it, uninfluenced by the fact that on an earlier occasion (and under circumstances so defective as to invalidate the conviction), he had been found guilty of the offense by a different jury. When a jury is informed by the state that the accused was convicted of the crime on a previous occasion, the defendant’s right to a fair trial, protected by both the federal and state constitutions, has been violated. To the extent that State v. Clark, 231 La. 807, 93 So.2d 13 (1957) and State v. Holmes, 224 La. 941, 71 So.2d 335 (1954) conflict with this rule, those case are overruled.

The state does not take the position before us that the rule is otherwise. Instead, the state in brief argues that the defense counsel’s motion for mistrial on this basis was not timely made, and that by not objecting timely, defendant waived his right to avail himself of the irregularity on appeal. We need not consider the question of whether this error so infected the proceedings as to require a mistrial in the absence of a defense request, see United States v. Briggs, 457 F.2d 908 (2nd Cir. 1972), because defense counsel did make such a request by interrupting the prosecutor’s argument. The question here then is whether or not a belated motion for mistrial, or a motion for mistrial made only after repetition of an earlier unobjected-to error, will lie where counsel failed to object in the first instance.

Article 841 is not an inflexible rule imposed on criminal litigants without rationale or justification. It is necessary adjunct to our role as an appellate court which is intended to promote judicial efficiency and to insure fair play. See State v. Smith, 339 So.2d 829 (La.1977): State v. Ervin, 340 So.2d 1379 (La.1977); State v. Marcell, 320 So.2d 195 (La.1975). For example, its operation prevents a defendant from gambling for a favorable verdict and then, upon conviction, resorting on appeal to errors that could have been corrected at trial, had he but brought the errors to the judge’s attention. State v. Smith, supra; State v. Knight, 323 So.2d 765 (La.1975); State v. Marcell, supra.

The state argued orally and in brief that because the prosecutor had once mentioned the fact of Lee’s previous conviction without objection, and because trial transcripts had been placed in evidence or referred to throughout the trial, he could then repeatedly stress to the jury the fact that defendant had been convicted for murder because defendant had, by previously failing to object, waived his right to object when the fact was introduced. With this position we cannot agree. The fact of previous transcripts being available for use may merely mean that evidence was given at a preliminary hearing, or a previous trial aborted on the state’s motion for mistrial, or any of a number of things. In State v. Reed, supra, we made clear that the use of the prior trial transcript was acceptable at retrial after conviction because there were no references made as to what sort of proceeding produced that transcript. Moreover, the fact that a prosecutor has made a prejudicial reference to a previous trial without objection does not mean that he can then exploit defense counsel’s inattention or mistake by repeated prejudicial comments in the same vein. Our rules are not intended to be available for manipulation by the defense or by the state.

What our rules require is that counsel bring an error to the attention of the trial judge within a reasonable time after the error occurs so that he can cure the error or declare a mistrial. C.Cr.P. arts. 770, 771, 841. Generally, a contemporaneous objection must be made immediately. In certain instances, however, objections which come shortly thereafter will be considered timely, see State v. Foss, 310 So.2d 573 (La.1975), and there are even instances in which no objections are required because they would be a vain and useless act, see State v. Ervin, supra. Particularly may there be such exceptions to the general rule during closing argument for reasons expressed in the following law review comment:

“one must recognize that the closing argument of the prosecutor may be so permeated with improprieties that constant objections may alienate the jurors or underscore the remark rather than erase it from their minds. Therefore, an objection at the end of the summation should be considered timely, and in some cases should be allowed outside the presence of the jury.” [citations omitted] 34 L.L.Rev. 746, 759 (1974).

Moreover, we recognize that a prosecutor’s prejudicial comments in closing argument may be considered by a federal court to violate federal due process guarantees even in the absence of a defense challenge or objection at trial. United States v. Briggs, supra; United States v. Grunberger, 431 F.2d 1062 (2d Cir. 1970); United States v. Sawyer, 347 F.2d 372 (4th Cir. 1965).

The only effect we can see in counsel’s failure to promptly request relief was that the trial was unnecessarily continued beyond a point when it should have been aborted. We do not find that sufficient reason to bar defendant from making a later motion when the error was blatantly repeated. Therefore we hold that the trial judge erred in refusing to grant defendant a requested mistrial when the prosecution during rebuttal argument stated and stressed that defendant Lee had been convicted of this very murder on an earlier trial of the case.

For the reasons assigned, defendant Sammy Lee’s conviction for manslaughter is reversed, his sentence is vacated, and the case is remanded to the district court.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, C. J., dissents with written reasons.

SANDERS, Chief Justice

(dissenting).

Our law requires that before there can be a reversal on appeal, the defense must have made a contemporaneous objection or corrective motion. LSA-C.Cr.P. 841; State v. Batiste, La., 318 So.2d 27 (1975); State v. Morris, 261 La. 1069, 262 So.2d 324 (1972). This rule applies during closing argument. See State v. Leierer, 242 La. 961, 140 So.2d 375 (1962).

In the present case, there were at least five references to defendant’s prior trial.

The first reference was during the State’s cross-examination of a defense witness. Tr. 11-403. The defense made no objection.

The second reference was during the State’s rebuttal argument. Tr. Ill — 568. The defense made no objection.

The third reference was during the rebuttal argument. Tr. Ill — 569. The defense made no objection.

The fourth reference was during the rebuttal argument. Tr. III-569. The defense made no objection.

Finally, the fifth reference was likewise during rebuttal argument. Tr. Ill — 574. The defense again made no contemporaneous objection or motion.

At a later point during the rebuttal argument, while the Assistant District Attorney was discussing different subject matter, the defense moved for a mistrial on the ground that the State had referred to the prior conviction.

In my opinion, Article 841 of the Louisiana Code of Criminal Procedure bars reversal, when it clearly states:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”

In any event, the entire matter was before the jury without objection long before the motion for a mistrial.

For the reasons assigned, I respectfully dissent.

      . On the other hand, before the trial judge the prosecutor took the position that the references were proper and said that the reversal of the conviction did not wipe out the conviction, that defendant was still a “convicted person.’’


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Milton O’BLANC and Emery LeJeune.
    No. 58846.
    Supreme Court of Louisiana.
    May 16, 1977.
    Rehearing Denied June 17, 1977.

      Robert F. DeJean, Sr., DeJean & DeJean, Opelousas, Emile A. Carmouche, Jr., Crowley, Patrick C. Morrow, Morrow & Morrow, Opelousas, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Walter L. Smith, Jr., Barbara Rutledge, L. J. Hy-mel, Jr., Asst. Attys. Gen., for plaintiff-ap-pellee.
   MARCUS, Justice.

Milton O’Blanc and Emery LeJeune were jointly indicted by the grand jury of St. Landry Parish on one count of conspiracy to distribute controlled dangerous substances, to-wit: biphetamine, glutethimide and pen-tobarbitol (crimes defined in La.R.S. 40:967 and 968), in violation of La.R.S. 14:26, and three separate counts of distribution with each count charging distribution of one of the aforesaid controlled substances. After a joint trial by jury, defendants were found guilty of count one (conspiracy to distribute controlled dangerous substances) and not guilty as to the other three counts of distribution. Subsequently, defendants were sentenced to serve five years imprisonment at hard labor. On appeal, defendants rely on seven assignments of error for reversal of their convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendants assign as error the failure of the trial' court to compel responses to certain requests for information contained in their bill of particulars which related to the purpose of the alleged conspiracy to distribute controlled dangerous substances. In assigning reasons for his ruling, the trial judge stated that the information sought by defendants was irrelevant to the offense with which they were charged and was not necessary to set up more specifically the nature and cause of the charge against them.

Defendants were accused of conspiring with one Sylvia Marcotte to distribute controlled substances to Homer Guillory, an investigator with the district attorney’s office. The avowed aim of the conspiracy was to discredit Guillory’s credibility by surreptitiously “planting” the pills in his car without his knowledge. In furtherance of the scheme, defendants contacted Sylvia Marcotte in November, 1975, to enlist her aid in the venture. Miss Marcotte agreed to cooperate and subsequently placed the pills in Guillory’s car.

In their bill of particulars, defendants requested information as to whether it was the state’s contention that the purpose of the alleged conspiracy was to distribute controlled substances or to frame Guillory by placing the pills in his vehicle. Defendants contend that this information was necessary to their defense that there was no specific intent to distribute controlled substances, an essential element of the offense of conspiracy to distribute controlled dangerous substances, but only to discredit Guillory. Additionally, information was sought as to the purpose of the November meeting between defendants and Sylvia Marcotte.

The function of a bill of particulars is to inform a defendant more specifically of the nature and cause of the charge against him. La.Code Crim.P. art. 484; State v. Jones, 332 So.2d 466 (La.1976); State v. Monk, 315 So.2d 727 (La.1975); State v. Nance, 315 So.2d 695 (La.1975). However, the bill of particulars cannot be used as a device to secure the details of the state’s evidence or to burden the state with requests for information unrelated to the nature and cause of the charge. State v. Devore, 309 So.2d 325 (La.1975); State v. Rose, 271 So.2d 863 (La.1973).

The information requested by defendants in their bill of particulars is of no relevance with respect to the offense with which they are charged. The fact that the true motive of the conspiracy was to discredit Guillory, with the distribution of the controlled substances being merely the method of effectuating the main design, has no bearing on the right of the state to prosecute defendants for the crime of conspiracy to distribute controlled dangerous substances. Nor was the information as to the purpose of the meeting between defendants and Miss Marcotte necessary to inform defendants of the nature and cause of the charge against them. The indictment, as implemented .by answers of the state to defendants’ bill of particulars, clearly sets forth that the meeting among the parties was for the purpose of conspiring to distribute controlled dangerous substances to Homer Guillory. Since defendants were sufficiently apprised of the nature and cause of the charge against them, the requests for information were properly denied.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendants contend that the trial court erred in denying their motion to quash the indictment. They allege that the indictment was defective for several reasons, most important of which is that it improperly charged them with conspiracy to distribute controlled substances under La.R.S. 14:26 rather than with conspiracy under La.R.S. 40:979. It is their contention that a charge of conspiracy to distribute controlled dangerous substances must be brought under the latter provision since it is the special statutory provision which governs conspiracy in relation to violations of the Uniform Controlled Dangerous Substances Law. Failure to so charge them, they argue, renders the indictment fatally defective. In denying the motion to quash, the trial judge ruled that La.R.S. 40:979 was not exclusive and hence prosecution could be maintained under La.R.S. 14:26.

La.R.S. 40:979, a provision of the Uniform Controlled Dangerous Substances Law, states:

Any person who attempts or conspires to commit any offense denounced and/or made unlawful by the provisions of this part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
In pertinent part, La.R.S. 14:26 provides:
Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
Whoever is a party to a criminal conspiracy to commit any other crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; but such fine or imprisonment shall not exceed one-half of the largest fine, or one-half the longest term of imprisonment prescribed for such offense, or both.

(Emphasis added.)

The import of the statute is clearly to punish a conspiracy to commit any crime as defined in La.R.S. 14:7:

A crime is that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state. (Emphasis added.)

The distribution of controlled dangerous substances has been defined as criminal by the legislature in La.R.S. 40:967 and 968. It therefore follows that a conspiracy to commit these crimes is punishable under La.R.S. 14:26 as well as under La.R.S. 40:979.

Furthermore, La.R.S. 14:4 provides:

Prosecution may proceed under either provision, in the discretion of the district attorney, whenever an offender’s conduct is:
(1) Criminal according to a general article of this Code or Section of this Chapter of the Revised Statutes and also according to a special article of this Code or Section of this Chapter of the Revised Statutes; or
(2) Criminal according to an article of the Code or Section of this Chapter of the Revised Statutes and also according to some other provision of the Revised Statutes, some special statute, or some constitutional provision.

Pursuant to this section, the district attorney is vested with the discretion to elect to proceed under either a general criminal provision or a special criminal provision.

Moreover, both statutes specify the same penalty for the crime of conspiracy to distribute controlled dangerous substances, that is, one-half of the punishment prescribed for the offense contemplated by the conspirators. In light of this fact, defendants can claim no prejudice in being charged under the general rather than the special criminal statute.

For the aforementioned reasons, defendants’ claim that the indictment contained an improper charge is unfounded.

Additional attacks as to the form and the content of the indictment are asserted by defendants. La.Code Crim.P. art. 464 states:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

A review of the indictment does not reveal any defect as to its form or content. The essential elements of the conspiracy were alleged in plain and concise terms in the first count. The indictment was therefore legally sufficient.

Other attacks on the indictment are based on the contention that the only act which defendants specifically intended to commit was that of discrediting Guillory. It is therefore argued that a prosecution for conspiracy to distribute controlled substances cannot be maintained since there was no specific intent to distribute. For the reasons stated in Assignment of Error No. 1, this contention lacks substance.

In sum, Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendants contend that the trial judge erred in denying their motion to quash grounded on the allegation that the results of polygraph tests were improperly presented to the grand jury. On the other hand, the state contends that, since defendants knowingly and intelligently waived their rights against self-incrimination in the grand jury proceeding and voluntarily submitted to the polygraph examinations after conferring with counsel, the results of the examinations were properly presented to the grand jury.

La.Code Crim.P. art. 442 provides in pertinent part:

A grand jury should receive only legal evidence and such as is given by witnesses produced, or furnished by documents and other physical evidence. However, no indictment shall be quashed or conviction reversed on the ground that the indictment was based, in whole or in part, on illegal evidence, or on the ground that the grand jury has violated a provision of this article. (Emphasis added.)

We need not decide whether the submission of the results of the polygraph examinations to the grand jury was or was not proper under the present circumstances, as the above provision clearly states that no indictment will be quashed nor conviction reversed on the ground that the indictment was based, in whole or in part, on illegal evidence. Therefore, regardless of whether the results of the polygraph examinations were proper evidence for consideration by the grand jury or not, the submission of the findings to the grand jury is not a basis upon which defendants may be afforded relief. Hence, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendants contend that the trial judge erred in denying their motion in arrest of judgment and/or for a new trial on certain grounds previously considered in Assignments of Error Nos. 1 and 2. For the reasons assigned therein, Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendants contend that the trial judge erred in permitting their co-conspirator, Sylvia Marcotte, to testify as to acts and conversations which occurred after she had placed the controlled substances in Guillory’s vehicle. This contention is raised for the first time on appeal. A review of Sylvia Marcotte’s testimony at trial reveals no objection on this ground. The only objections made during her entire testimony were on the grounds of hearsay and leading questions, and these objections were properly sustained or overruled. Article 841 of the Code of Criminal Procedure provides that an error or irregularity cannot be availed of after verdict unless it was objected to at the time of the occurrence. In accordance therewith, we have consistently held that an objection not contemporaneously raised in the lower court or ruled on by the trial judge cannot be availed of on appeal. State v. Williams, 343 So.2d 1026 (La.1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976); State v. Knight, 323 So.2d 765 (La.1975); State v. Burgy, 320 So.2d 175 (La.1975). Moreover, article 841 also provides that defendant make known to the court the ground for his objection. Accordingly, a new basis for an objection cannot be raised for the first time on appeal. State v. Williams, supra; State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975). Hence, defendants’ contention that the trial judge erred in permitting their co-conspirator to testify as to acts and conversations after the conspiracy was allegedly ended is not properly before us for review.

Defendants also contend that the trial judge improperly permitted two police officers to testify as to events which occurred subsequent to the placing of the pills in Guillory’s car. Objections to this testimony on the grounds of hearsay and leading questions were asserted by defendants. After a thorough review of the testimony, we find no error in the rulings of the trial judge.

In sum, this assignment of error is without merit.

ASSIGNMENT OF ERROR No. 6

Defendants contend that the trial judge erred in denying their motion in arrest of judgment and/or for a new trial on the ground that the foreman of the petit jury had been previously charged with possession of marijuana and this fact was not called to the attention of defense counsel “until the period of deliberation by the petit jury.” Defendants argue that this placed the foreman in an “emotional predicament of compliance and rendering his answers on the ‘voir dire’ subject to the pressure under which he was laboring.”

First, no showing was made that the foreman of the petit jury was in fact charged with possession of marijuana. Secondly, the alleged charge of possession of marijuana may or may not be an “indictment for a felony” disqualifying him to serve as a juror under La.Code Crim.P. art. 401 depending upon whether he had any prior convictions for violation of subsection C of La.R.S. 40:966. In any event, to warrant a new trial, a defendant must show the exercise of reasonable diligence to discover the disqualification before verdict. La. Code Crim.P. arts. 851(4), 855. In the instant case, defendants apparently, by their own admission, had knowledge of this fact at the time of deliberation by the jury but did not object or move for a mistrial prior to verdict. Rather, their first objection was asserted in their motion in arrest of judgment and/or for a new trial. Moreover, this court has held that when the disqualification of a juror is relied upon as a basis for a new trial, defendant must show that he questioned the juror on voir dire examination concerning the subject and that the juror failed to disclose the relevant facts. Such a showing is essential to satisfy the requirement of reasonable diligence. State v. Hall, 255 La. 854, 233 So.2d 541 (1970) State v. Clark, 231 La. 807, 93 So.2d 13 (1957). The record does not reveal that defendants questioned this prospective jur- or during voir dire examination on the subject of the present complaint.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendants contend that the prosecution committed reversible error by referring during the cross-examination of defendant Milton O’Blanc to his testimony before the grand jury. The reference was made for the purpose of impeaching his testimony at trial by establishing a prior inconsistent statement before the grand jury.

The context facts are as follows. O’Blanc had testified that, during the course of his investigation of Homer Guillory, he had interviewed Mrs. Guillory, who was separated from her husband, and that he was driving a blue Ford, which he had recently rented, at the time. In view of prior testimony that he had been driving a green Ford during the course of the alleged conspiracy, O’Blanc was questioned by the state as to his reason for turning the blue car in for a green one. O’Blanc replied that he had done this shortly after his interview with Mrs. Guillory in order to obtain a later model. The witness denied that he had exchanged the vehicles because of the fact that Mrs. Guillory had reported the license plate number of the blue car to Mr. Guillory who was looking for him. O’Blanc also replied in the negative to a question as to whether he had made a previous statement before the grand jury that he “turned in the car because you got burnt.” The district attorney then handed the witness a copy of the transcript for the purpose of refreshing his memory. The witness was then asked whether he now recalled making the statement previously referred to before the grand jury. At this point, defense counsel for the first time intervened and stated:

. [Cjounsel for the defense has no objection to answering that one question, but if it is going to be used for any other purpose than showing perjury, I am going to ask the court to go into this whole matter and give us a chance to review his testimony in the Grand Jury. So the question is, he can answer that question but if it goes any further I am going to object to it.

The jury was excused from the courtroom. Defendants requested that a copy of the transcript be made available to them and that the court rule on the admissibility of the testimony of this witness before the grand jury. The court ruled that the state could ask the previous question but could go no further. The court also permitted defendants to examine the transcript. Defendants then moved for a mistrial because of the reference to the testimony of this witness before the grand jury. The motion was denied. When the jury was returned to the courtroom, the witness was questioned on the single statement previously referred to before the grand jury and thereafter no further reference to testimony before the grand jury was made during the course of the trial.

This court has previously held that the law makes the proceedings of the grand jury secret, and testimony taken before the grand jury cannot be used in a trial, other than a prosecution for perjury. The purpose of this rule is not to protect a defendant or witness at a subsequent trial, but to encourage the free disclosure of information about crime. La.Code Crim.P. arts. 431, 434, 440, 441; State v. Ivy, 307 So.2d 587 (La.1975); State v. Terrebonne, 256 La. 385, 236 So.2d 773 (1970). However, it is not every error that requires a reversal of the conviction. La.Code Crim.P. art. 921.

First, we consider that defendants waived their right to complain about the alleged error by not objecting at the time of the occurrence, La.Code Crim.P. art. 841, and by defense counsel’s statement that he had no objection to the witness answering the one question and that he would only object if the matter was further inquired into. As a matter of fact, the witness answered only that one question and the matter was not further pursued.

Even assuming that defendants did not waive the error resulting from the prosecutor’s reference to the witness’ testimony before the grand jury, we do not consider that the error was prejudicial to the substantial rights of the accused. The evidence of guilt which included the testimony of a co-conspirator was substantial. The reference to the testimony given before the grand jury related only to a single statement involving an innocuous point which had no bearing on defendants’ guilt or innocence and thereafter no further mention was made of the prior testimony. Moreover, defendants were afforded an opportunity to examine the transcript of the grand jury proceedings. Under these circumstances, there was no reversible error. La. Code Crim.P. art. 921. In sum, this assignment of error lacks merit.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.

DENNIS, J., concurs disagreeing with treatment of assignment No. 5.

      . Defendants further allege that an agreement existed with the district attorney’s office that they would not be prosecuted on the charges if they passed the polygraph examinations. No evidence of this agreement or the results of the examinations appear in the record. Moreover, the state specifically denies the existence of any such agreement. In any event, defendants are not precluded from attempting to assert this contention in a post-conviction proceeding.