author: SAMUEL, Justice Ad Hoc.

text:
    STATE of Louisiana v. Billy Joe HUCKABY.
    No. 62925.
    Supreme Court of Louisiana.
    March 5, 1979.

      Frank W. Middleton, III, Michael Wolf, McCollister, McCleary, Fazio, Mixon, & Hol-liday, W. L. Wilson, Taylor, Porter, Brooks, & Phillips, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Mary Y. Gilliland, Asst. Dist. Atty., for plaintiff-appellee.
   SAMUEL, Justice Ad Hoc.

Defendant Billy Joe Huckaby was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. On May 27,1976, after trial before a jury of twelve persons, he was found guilty as charged. Thereafter, the trial court sentenced defendant to serve fifty years at hard labor in the custody of the Department of Corrections. Before this Court, defendant relies upon twelve assignments of error for reversal of his conviction and sentence.

Context Facts

On January 22, 1976, Ms. S. went to the market, then returned home and was preparing lunch, when her door bell rang. When she answered the door, she was confronted by a man with a gun who ordered her into a bedroom and proceeded to rape her. Based on the victim’s description of her rapist and on descriptions of an automobile seen parked in front of the victim’s house by her neighbors, and likewise observed by Ms. S. as she looked out her window immediately following the incident, an investigation ensued leading to defendant’s arrest. Both prior to and during trial, the victim identified defendant as the perpetrator of the crime. Evidence seized from defendant’s residence, pursuant to a search warrant, was introduced at trial.

Assignments of Error Nos. 1, 2 and 3

Defendant argues that the trial court erred in restricting defense examination of witnesses at the hearing on the motion to suppress identification evidence (Assignments of Error Nos. 1 and 2).and in denying the motion to suppress at the close of the hearing (Assignment of Error No. 3).

Defendant was arrested on January 23,1976, the day following the alleged rape, and at 6:00 p. m. was placed in a lineup and identified by the victim. Prior to the lineup, an attorney was appointed to represent the defendant, and defendant and appointed counsel selected the lineup participants. At the hearing on the motion to suppress the identification, defense counsel attempted to question various police officers, as well as the victim herself, about the details of the victim’s description of her assailant given to authorities prior to the lineup. When the prosecuting attorney objected to these questions, defense counsel argued that evidence of the victim’s prior descriptions was relevant to establish that, with the exception of defendant, the state failed to include in the lineup any individuals manifesting the particular features previously described by the victim. Noting that defendant had not established any state control over the selection of the lineup participants, the trial court sustained the state’s objection and precluded counsel from eliciting details of the prior descriptions.

Frequently, evidence of the victim’s prior description of the perpetrator of the crime charged is relevant to a determination of whether a pre-trial identification should be suppressed. See State v. Guillot, 353 So.2d 1005 (La.1977). However, under the facts of this case, the trial court did not abuse its discretion in ruling that such evidence was not pertinent to the suppression issue. Although counsel was given an opportunity to show otherwise, the evidence established that defendant and the attorney appointed to represent him at the lineup selected the five other lineup participants. Thus the victim’s prior description of her assailant was not relevant to show that the state had discriminatorily excluded from the identification procedure individuals displaying characteristics similar to those described by the victim.

Moreover, the trial court did not err in denying the motion to suppress the identification. It is the likelihood of misidenti-fication, not merely suggestive identification procedures, which violates due process. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Guillot, supra. Here the totality of circumstances establish that the pre-trial identification had independent indicia of reliability: although the victim’s assailant apparently wore a wig and sunglasses, she had a face to face confrontation with him for some period of time; her identification at the lineup procedure was positive; and the lineup took place the day following the commission of the offense. Moreover, the victim described a tatoo including the words “Can I” or “I Can” she observed on her assailant’s leg. The accuracy of this description was established at trial when the state introduced a photograph of defendant’s leg depicting a tatoo which reads “Can I Do It,” with the words “Can I” appearing larger than the rest of the slogan. See State v. Guillot, supra.

Assignments of error 1, 2 and 3 are without merit.

Assignments of Error Nos. 4, 9 and 10

Defendant contends that the trial court committed reversible error in denying his motion to suppress the fruits of a search conducted pursuant to a warrant (Assignment of Error No. 4) and in admitting into evidence at trial various items seized during the search (Assignments of Error Nos. 9 and 10).

On January 23, 1976, the day following the rape, officers from the Baton Rouge Police Department obtained a search warrant for a residence on Walker Drive, Brown Heights Subdivision, in Baker, Louisiana. The warrant was issued upon the following affidavit by Sergeant Wayne Spi-na and Detective William Rose of the Baton Rouge City Police Department:

That on 1/22/76, Det. Sgt. Phil Theriot, of Baton Rouge City Police Dept, contacted, Baker, La., Police Department Personnel, Sgt. Funderburk, and was advised that one Warren Gable, W/M, RT. 4, Box 90, Denham Springs, La., owned a vehicle (a white over maroon Chrysler, with a whip C.B. Antenna, Lie # 40A559), which fits the description of auto used in crime as described by victim to affiant. Upon checking with Warren Gable by Det. Perkins and Sgt. O’Brien, (B.R.C.P. D.), it was learned that above described vehicle had been purchased by one Billy Joe Huckaby, W/M who resided in Brown Heights Subdivision. Sgt. Wayne Spina located above vehicle at 7251 Walker Drive, Brown Heights Subdivision, Baker, La. Above Billy Joe Huckaby was found in Denham Springs, La., on 1/23/76, and came to Denham Springs, La. Police Department, where he was observed by affi-ant to fit the description given to them by the victim of the Aggravated Rape. It was also learned by officers that Billy Joe Huckaby was in the vicinity of 12411 East Robinhood Drive at the time of the Aggravated Rape and Armed Robbery.

The warrant was executed that same day at approximately 6:30 p. m. Various items were seized and later introduced into evidence at trial.

The affidavit clearly recites facts sufficient to establish probable cause for the issuance of a search warrant. La.Const. Art. 1, § 5 (1974); La.C.Cr.P. art. 162. See State v. Richards, 357 So.2d 1128 (La.1978); State v. Harris, 343 So.2d 145 (La.1977). Defendant, however, relying upon this Court’s decision in State v. Rey, 351 So.2d 489 (La.1977), asserts that the evidence seized pursuant to the warrant must nevertheless be suppressed because the affidavit contains deliberate misrepresentations made by the affiant.

In State v. Rey, supra, this Court observed that minor inaccuracies in an affidavit may not affect the validity of a search warrant. When faced with an affidavit containing inaccurate statements, the general rule is to excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause. However, a warrant based on an affidavit containing intentional misrepresentations must be quashed. See also State v. Hysell, 364 So.2d 1300 (La.1978); State v. Babbitt, 363 So.2d 690 (La.1978); State v. Lamartiniere, 362 So.2d 526 (La.1978); State v. Segers, 355 So.2d 238 (La.1978).

In the instant case, we are satisfied that the trial judge properly denied the motion to suppress based on the alleged misrepresentations in the supporting affidavit. Specifically, defendant alleged that the evidence adduced at the hearing on the motion established that (1) Sergeant Funderburk of the Baker Police Department did not advise Sergeant Theriot of the Baton Rouge Police Department that Warren Gable owned a vehicle fitting the description given by the rape victim to Detective Rose; (2) no description of the alleged rapist’s car was given to the affiant by the victim; (3) the victim gave no description to anyone referring to a whip C.B. antenna and a license number; (4) the affiant did not actually receive any description of the assailant from the victim; and (5) the defendant did not tell the affiant that he had been “in the vicinity of [the address of Ms. S.’s residence] at the time of the aggravated rape and armed robbery.”

Relative to the first defense allegation, the evidence adduced at the suppression hearing established that contrary to the affidavit Sergeant Funderburk did not inform Sergeant Theriot that Warren Gable owned a car matching the victim’s description, but merely supplied him with a license plate number of a similar car, which was then apparently checked with vehicle registration to reveal the name of Warren Gable. However, this misstatement, attributable to the affiant, was clearly a reasonable mistake made in good faith. Excising the incorrect portions of the statement, ample probable cause existed for the issuance of the warrant.

The next three allegations present a more difficult question. Evidence presented at both the hearing and the trial established that the victim gave a description of the vehicle as a maroon or reddish car with a different color top and a CB antenna, together with a description of her rapist, to Sergeant Spina and not to Detective Rose. The affidavit itself states that both Sergeant Spina and Detective Rose appeared before the judge who issued the warrant. However, according to the testimony, only Detective Rose appeared before the issuing judge and only Detective Rose signed the affidavit. Under the facts of this case, this discrepancy is not fatal. It is not required that each investigator appear and swear to the affidavit. State v. Culotta, 343 So.2d 977 (La.1976). Here the affidavit, although signed by only Detective Rose, sufficiently indicates that the information contained therein was the result of the combined investigative efforts of both Sergeant Spina and Detective Rose. See State v. Lamartiniere, supra; State v. Segers, supra. Thus, with the exception of the reference to the license plate number, referred to above, there are no misrepresentations which must be excised from the affidavit.

Likewise our review of the evidence establishes that defendant’s fifth allegation is not truly a misrepresentation or otherwise inaccurate statement. Prior to obtaining the search warrant, the officers had spoken to defendant who informed them that on the morning of the rape he had gone to a K-Mart to buy transmission fluid and oil. The location of that particular store is in the vicinity of the victim’s home.

Assignments of error 4, 9 and 10 are without merit.

Assignments of Error Nos. 11 and 12

Defendant contends that the trial court erred in accepting a state witness as an expert in the comparison of hairs (Assignment of Error No. 11) and in permitting the introduction into evidence of the hair samples used by the witness in her comparison tests (Assignment of Error No. 12).

La.R.S. 15:466 provides:
The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

Thus the competency of an expert witness is a question of fact to be determined within the sound discretion of the trial judge; his rulings will not be disturbed in the absence of manifest error. State v. Sepulvado, 359 So.2d 137 (La.1978); State v. Gray, 351 So.2d 448 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976).

In the instant case, the trial judge did not abuse his discretion in overruling defendant’s objection to Shirley Phillips’ qualification as an expert in the comparison of hair samples. Ms. Phillips, a criminalist at the State Police Crime Lab for five years, received on the job training, attended an instructional course sponsored by the F.B.I. specifically directed toward the examination of hairs, and had made several hundred hair comparisons during her tenure at the crime lab. She had previously been accepted as an expert in this field. The witness’ reliance on procedures and techniques developed by others in making her comparisons does not prevent her from qualifying as an expert. See State v. Titus, 358 So.2d 912 (La.1977).

Defendant also complains of the admission of hair samples used by Ms. Phillips in her comparison test. These hair samples were obtained from the victim’s bedspread following the incident here in question and from defendant subsequent to his arrest. In Ms. Phillips expert opinion, although the nature of hair precludes positive identification, the hairs from the two samples were sufficiently similar that they could have come from the same person. When the state sought to introduce the hair samples into evidence, defendant objected “on the basis that the witness was not sufficiently qualified to testify about the information elicited in connection with these exhibits.” As previously noted, the trial court did not abuse its discretion in qualifying Ms. Phillips as an expert in the field of hair comparisons. Thus there was no error in permitting her to state her opinion. La.R.S. 15:464.

In brief, defendant additionally argues that the admission of the exhibits was error since Ms. Phillips did not employ diagrams or slides to demonstrate to the jury the manner in which she compared the two hair samples. However, the witness did carefully state the facts upon which her opinion was based. This verbal explanation was sufficient. La.R.S. 15:465. Moreover, as defendant did not present this objection before the trial court, he cannot now complain on appeal. La.C.Cr.P. art. 841.

Assignments of error 11 and 12 are without merit.

Assignment of Error No. 13

Defendant argues that a mistrial should have been declared when it was revealed during trial that the state had failed to provide the defense with certain exculpatory evidence. Defendant’s complaints relate to a fingerprint analysis of the scene of the offense and the victim’s initial description of her rapist.

Prior to trial, defendant filed a motion to inspect. Included in the motion was a request to inspect any fingerprints obtained in connection with the state’s investigation of the case. The request was denied. Defendant had also filed a pre-trial motion to be furnished “with any and all evidence or information . . . known to any agents of the State tending to show that defendant is innocent of the offense charged, serving to impeach the credibility of any potential witnesses, or that may lead to the discovery of any such evidence or information.” The state responded that it would furnish defense counsel with such information if any became available.

During trial Sergeant Spina, one of the investigating officers, testified that two men from the crime laboratory, Mr. Eth-ridge and Mr. Churchman, came to the scene and “advised me that they had picked up some prints.” Neither Sergeant Spina nor Mr. Churchman, who was subsequently called as a state witness relative to hair samples, were examined or cross-examined about the nature of the prints. Following the close of the state’s case-in-chief, the defendant moved for a mistrial based in part on the failure of the state to inform him that Ms. S.’s residence had been dusted for prints. The prosecutor responded “we don’t have fingerprints, all that shows that he didn’t touch anything or that they just weren’t found.” The trial court denied the motion.

In moving for the mistrial, defendant additionally argued that the prosecution had improperly failed to inform the defense pri- or to trial of a prior description given to the authorities by the victim, which description did not match defendant’s appearance. The evidence presented during the state’s casein-chief revealed that on at least one occasion the victim had described her rapist as having shoulder length brown hair. However, additional testimony and evidence tended to establish that the defendant had worn a wig during the commission of the offense. Defendant’s request for a mistrial based on this evidence was also denied by the trial court.

At the time of the trial of this offense, in May 1976, there was limited pre-trial discovery in Louisiana in criminal cases. State v. Gray, supra. Neither statements made by witnesses nor the results of fingerprint tests were generally discoverable. State v. Thornton, 351 So.2d 480 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Hunter, 340 So.2d 226 (La.1976); State v. Chase, 327 So.2d 391 (La.1976). However, these limitations upon discovery may not be allowed to infringe upon an accused’s constitutional rights to due process of law or to offend principles of fundamental fairness. State v. Gray, supra. Suppression by the state of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Moreover, “if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to disclose, that duty should arise equally even if no request is made.” United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). However, when no specific request has been made by the defense, a post-trial discovery that evidence has been suppressed requires a determination of whether the subject matter requested would, upon its evaluation in the context of the entire record, create a reasonable doubt as to the defendant’s guilt. United States v. Agurs, supra. See also State v. Harvey, 358 So.2d 1224 (La.1978); State v. Falkins, 356 So.2d 415 (La.1978); State v. May, 339 So.2d 764 (La.1976).

We have reviewed the defendant’s complaints relative to suppression in light of these general principles and conclude that the trial court did not err in refusing to declare a mistrial. Even assuming that defendant’s motion to inspect was a specific request for disclosure of the failure of state experts to discover defendant’s fingerprints in the victim’s residence, non-disclosure pri- or to trial does not constitute a basis for reversal of defendant’s conviction under the facts of this case. Although not presented to the jury, the information was made available to defendant during the course of the trial. Moreover, the evidence concerning the fingerprints was not such that it created a reasonable doubt about guilt which did not otherwise exist when considered in the context of the entire record, i. e., the victim’s positive identification of a distinctive tatoo on defendant’s leg, her positive identification of defendant as the perpetrator of the rape at the pre-trial lineup, the testimony by the victim and two neighbors identifying defendant’s car as having been parked in the front of the victim’s house at the time of the rape, and the opinion evidence by the state’s expert witness that pubic hairs taken from the scene of the rape and from the defendant matched and thus could have come from the same person. See State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977).

With respect to the alleged “misidentifi-cation” of defendant by the victim, evidence that the victim had previously described the perpetrator of the offense as having shoulder length brown hair was before the jury when it deliberated defendant’s guilt or innocence. Thus, it could not be said to have created a reasonable doubt as to defendant’s guilt which did not otherwise exist. See State v. Falkins, 356 So.2d 415 (La.1978); State v. Schamburge, 344 So.2d 997 (La.1977).

Assignment of error 13 is without merit.

Assignments of Error Nos. 17, 20 and 28

Defendant argues that the trial court erred in denying his motion for a new trial on the grounds that the verdict was contrary to the law and the evidence, that new evidence had been discovered post-trial and that the ends of justice would be served by the granting of a new trial.

Defendant’s argument that the verdict is contrary to the law and the evidence is based on an analysis of the sufficiency of the testimony introduced at trial. However, it is only where there is no evidence at all of the offense or of some essential element thereof that this Court has the authority to annul the conviction. State v. Banks, 362 So.2d 540 (La.1978); State v. Blackstone, 347 So.2d 193 (La.1977). See La.Const. Art. 5, § 5(C) (1974). Our review of the record in this case establishes that there was at least some evidence to support a jury finding of each of the essential elements of aggravated rape and of defendant’s connection with the offense.

The contention that the discovery of new evidence after trial mandated the granting of a new trial is based on a food stamp receipt found in a defense witness’ purse. In considering a motion for a new trial based on newly discovered evidence, the test employed is whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Lovett, 359 So.2d 163 (La.1978); State v. Provost, 352 So.2d 661 (La.1977). In reviewing the denial of such motions on appeal, this Court has held that the trial judge has considerable discretion in evaluating the impact of newly discovered evidence on the verdict and that his ruling will be disturbed only when there is a clear showing of abuse of that discretion. State v. Kelt, 362 So.2d 751 (La.1978); State v. Provost, supra. Here the food stamp card proved that the witness was in a certain place on a certain day, but did not substantially change any of the trial testimony nor add significantly to defendant’s alibi defense. Thus the trial court did not abuse its discretion in denying the motion for a new trial on this ground.

Finally, we conclude that the trial court did not abuse its discretion in rejecting defendant’s argument that the ends of justice would be served by the granting of a new trial. See State v. Carter, 362 So.2d 510 (La.1978); State v. Matthews, 354 So.2d 552 (La.1978).

Assignments of error 17, 20 and 23 are without merit.

Decree

For the reasons assigned, the conviction and sentence of defendant Billy Joe Hucka-by are affirmed.

      . This is the appropriate penalty following the judicial declaration that the statutory death penalty, in effect at the time of the commission of the offense, was unconstitutional. See State v. Smith, 340 So.2d 247 (La.1976); State v. Craig, 340 So.2d 191 (La.1976).

      . Defendant has neither briefed nor argued Assignments of Error Nos. 5, 6, 7, 8, 14, 15, 16, 18, 19, 21 and 24. Thus we consider them abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

      . Counsel was apparently appointed at that stage as a precautionary measure. A defendant is not constitutionally entitled to have counsel present at pre-indictment lineup procedures. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Lozan, 359 So.2d 108 (La.1978); State v. Rudolph, 332 So.2d 806 (La.1976).

      . The attorney appointed to represent defendant at the lineup did not represent defendant at suppression hearing or at trial. However, defendant did not call the attorney to testify concerning the identification procedure.

      .This Court may consider all pertinent evidence adduced at trial in determining whether a defendant’s motion to suppress was properly denied. State v. Schmidt, 359 So.2d 133 (La.1978); State v. Dunbar, 356 So.2d 956 (La.1978).

      . See footnote 5, supra.

      . Moreover, it was not established that the evidence was such that it could not have been discovered prior to trial with the exercise of reasonable diligence. La.C.Cr.P. art. 851(3).


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Respondent, v. Henry Peter HARRIS, Relator.
    No. 62996.
    Supreme Court of Louisiana.
    March 5, 1979.

      Norman W. Ershler, De Blieux & Ershler, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-respondent.
   TATE, Justice.

On application of the relator Harris, we granted certiorari to review the revocation of his probation. 363 So.2d 914 (La.1978).

We were given some concern by a showing that, in violation of constitutional requirements, no prior written notice may have been given to the relator of the misconduct upon which his revocation was based, that documentary evidence of arrest reports may have been considered without additional proof that the underlying actual misconduct had occurred, and that there may be inadequate statement by the revoking judge of the reasons for the revocation.

This case presents several issues relative to the proper procedures to be followed in probation revocation proceedings. As discussed below, we find the procedures followed in the present case to be constitutionally inadequate, so we remand to the trial court for further proceedings.

Facts

On February 23, 1977 the relator, Henry Harris, was found guilty of attempted manslaughter (by a plea of guilty, relator alleges). He was sentenced to five years imprisonment in the custody of the Louisiana Department of Corrections. However, the sentence was suspended with the special conditions that the defendant serve twenty months in parish prison and refrain from owning or possessing firearms.

On June 3, 1977, the defendant was released from parish prison and made contact with his probation officer. On September 21, 1977, the defendant was arrested on charges of simple burglary and aggravated assault. As a result of these arrests, the defendant’s probation officer entered a motion for a probation revocation hearing. This hearing was set for November 17, 1977, but the defendant did not appear as scheduled.

A second hearing was set for January 30, 1978, but again the defendant did not appear, so the matter was reset for March 3, 1978. The defendant again did not appear at the March 3, 1978 hearing, but he was represented by appointed counsel. The court found that the defendant knew that the revocation hearing was supposed to be held on March 3, 1978, had knowledge of the nature of the hearing and had deliberately absented himself from the hearing, so the court over objection of counsel for the defense, began to hear testimony relative to the revocation.

The only testimony heard at the March 3, 1978 hearing was from the defendant’s probation officer. He testified that he entered the motion for revocation based upon his receipt of information indicating that the defendant had been arrested on September 21, 1977 for simple burglary and aggravated assault. The probation officer testified that he had spoken to the defendant and that the defendant said the charges were a result of a misunderstanding.

The probation officer also testified that he had been unable, for the most part, to maintain contact with the defendant due to the defendant’s lack of cooperation. At the conclusion of this testimony by the probation officer, the court continued the hearing in order to allow the defendant to appear and present testimony on his own behalf. The court also ordered that a warrant be issued for the defendant’s arrest to compel his presence.

On June 17, 1978 the defendant was arrested under the warrant issued by the court on March 3,1978. On August 1,1978 the defendant’s revocation hearing, which had been continued from March 3, 1978 was resumed. The defense counsel (who was not the same attorney who represented the defendant at the previous revocation hearing) objected to the proceedings, alleging that the defendant had not been given written notice of the charges against him. The court overruled this objection.

The defendant’s probation officer repeated his testimony from the March 3, 1978 hearing relative to the defendant’s arrest on the simple burglary and aggravated battery charges, as well as the fact that the defendant had not maintained contact with him. The probation officer also testified that the defendant had been charged with two counts of misdemeanor theft and had been arrested on June 17, 1978 as stated above. The probation officer stated that his records revealed that all of the city court matters were at that time pending.

The probation officer additionally testified that he had been told that the defendant had been charged with robbery in connection with an incident that occurred on June 16, 1978, and that the defendant had been found guilty of contempt of court in a different section of district court, apparently because of incidents which took place during the defendant’s arraignment on the robbery charge. The probation officer testified that he understood that the robbery charges were pending. He did not introduce any documentation of the contempt conviction.

On cross-examination by the defense, the probation officer testified that he had no personal knowledge of the crimes for which the defendant was arrested and that he had talked to none of the alleged victims. He also testified that he had not given the defendant written notice of the alleged violations for which the revocation hearing was being held. He did testify, however, that he had received a letter from the defendant which indicated that the defendant was aware of the probation violations involved.

At the conclusion of the probation officer’s testimony on this August 1 hearing, the court continued the hearing until August 10, 1978 so that the defendant would have time to prepare his defense. In response to the defense request for notice of the alleged causes for revocation, the court ruled that sufficient prior notice was afforded by the testimony of the probation officer at this August 1 revocation hearing.

At the August 10, 1978 hearing the defendant was present with counsel. The defense presented the testimony of two of the defendant’s former employers who testified that the defendant had a good work record. One of the employers testified that the defendant was at work all day on June 16, 1978 and consequently could not have been involved in the alleged robbery that took place on that date.

The court allowed the state, over defense objection, to introduce the arrest report from the June 16, 1978 robbery which the probation officer had in his file. The court then announced that it would adjourn to consider its verdict, and that it would take into consideration the police reports relative to the various crimes with which the defendant was charged. Based upon a review of these arrest reports and the testimony taken at the hearings, the court subsequently ordered the defendant’s probation revoked and made the sentence of February 23, 1977 executory, ordering the defendant to be confined in the custody of the Department of Corrections for a period of five years with credit for time served.

The defendant argues six assignments of error to this court relative to the revocation, four of which we find worthy of discussion.

Assignment 1

By this assignment, the petitioner claims that the trial court erred in conducting the March 3, 1978 hearing in his absence. As stated above, the court determined that the petitioner knew about the hearing, but deliberately absented himself from it. Before continuing the hearing, the court heard testimony from the petitioner’s probation officer relative to the charged offenses on which the attempted revocation was based.

In Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) the United States Supreme Court found the minimum requirements of due process for parole revocation to include:

“ * * * (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (e) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.”

Probation revocation was found to be indistinguishable from a parole revocation in its practical effect, and these procedural requirements were applied subsequently to probation revocation in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). This court has found the Mor-rissey/Gagnon rule applicable in Louisiana revocation proceedings. Baggert v. State, 350 So.2d 652 (La.1977); State v. O’Conner, 312 So.2d 645 (La.1975); State v. Harris, 312 So.2d 643 (La.1975).

As noted, one of the requirements of the cited cases is that the defendant have the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). The state argues that this right of the defendant was protected by the presence of his counsel at the March 3,1978 hearing. It is also arguably true that the defendant was given the right to confront and cross-examine witnesses, but that he chose not to exercise this right by deliberately absenting himself from the March 3, 1978 hearing.

We do not find it necessary to resolve the issue in the present case. The only witness who testified at the March 3, 1978 hearing, the defendant’s probation officer, re-testified at the August 1, 1978 hearing. There, both the defendant and his counsel were present and able to, and in fact did, cross-examine the witness. For this reason, we do not reach the contention of error raised as to the trial court’s hearing testimony from the probation officer in the absence of the defendant.

Assignment 2

By this assignment, the defendant argues that the trial court erred in revoking his probation in the absence of defendant’s being informed in writing prior to the hearing of. specific violations. The requirement of written notice of the claimed violations of probation is a requirement of the Mor-rissey/Gagnon rule.

The defendant was not in fact given formal written notice of the charges on which revocation was sought. However, after the court was finally able to obtain the presence of the defendant at the August 1,1978 hearing, and after the state had presented its evidence of the claimed violations, the court continued the hearing until August 10, 1978 so that the defendant would be able to adequately prepare his defense to the evidence of alleged violations there presented. Even after the specific request of the defendant at the August 1, 1978 hearing, the court did not give the defendant written notice of the charges, because the court, at that time, held that the testimony taken at the August 1, 1978 hearing substantially satisfied the notice requirement.

We would not set aside the revocation solely because no written prior notice of the charges was given in the present case, although undoubtedly that would have been the constitutionally preferable practice. The written notice requirement of Morrissey/Gagnon is stated in the absolute, but we do not believe that the revocation is vitiated solely because, on a date prior to the hearing, the alleged causes for revocation are set forth precisely by sworn testimony instead of by a formal writing.

The purpose of the prior-notice rule, obviously, is to assure that the defendant is given notice of the charges against him and to guarantee evidence that such notice was given, in order that he may prepare his defense. These underlying purposes were served in the present case by the trial court’s continuation of the proceedings, after the defendant had heard the probation officer’s testimony under oath as to the charges, until a date upon which the defendant could prepare his defense to the charges.

For this reason, this assignment presents no reversible error by the trial court.

Assignment 3

By this assignment, the defendant argues that the trial court committed reversible error in finding violations of the condition of probation that the defendant not engage in criminal conduct, insofar as based solely upon evidence that the defendant was arrested for, but not convicted of, certain criminal charges. We find merit in this assignment.

At a probation revocation hearing, a violation of the conditions of probation may be shown by establishing a criminal conviction or by actual proof of the commission of a crime, apart from conviction. State v. O’Conner, 312 So.2d 645 (La.1975); State v. Harris, 312 So.2d 643 (La.1975).

The holding of these decisions is to the effect that, in those instances in which the state does not prove that defendant was convicted of a crime which would form the basis of a revocation, it must present actual proof that the defendant has engaged in such criminal conduct. Proof of an arrest alone indicates only that a crime may be charged, not that a crime has been committed.

In the present case, the state did not offer proof that the defendant had been convicted of any crimes subsequent to his probation. The only testimonial evidence as to the fact that the defendant engaged in criminal conduct was by the probation officer, whose hearsay testimony was based upon police reports which were contained in his file on the defendant. Even on the basis of these reports, the probation officer testified only that the defendant had been arrested, but did not give any testimony which would prove the fact of the underlying criminal conduct. Based upon this testimony alone, the revocation would not be valid.

However, in the present case, the judge considered, as documentary evidence of the criminal conduct, the police reports made relative to the arrests for the various crimes with which the defendant was charged. Whether these reports alone should be held to be sufficient evidence of the underlying criminal activity merits very close consideration.

In Gagnon v. Scarpelli, cited above, the Supreme Court stated: “An additional comment is warranted with respect to the rights to present witnesses and to confront and cross-examine adverse witnesses. . While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.” 411 U.S. at 782, 93 S.Ct. at 1760.

This language, arguably, would allow us to hold that the defendant’s constitutional rights were satisfied by the procedure followed in this case. Nevertheless, we do not believe that the arrest report of a crime is by itself sufficient evidence of the underlying criminal activity to warrant revocation.

As stated by this court in Baggert v. State, 350 So.2d 652, 655 (La.1977): “Morrissey established as a minimum requirement of due process in revocation hearings ‘the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’ When the Parole Board has before it allegations of criminal conduct, and it has not been specifically found that confrontation and cross-examination would expose a witness to a significant risk of harm, it is decidedly inappropriate to receive unassailable written reports as the sole evidence of the alleged violation.” 350 So.2d at 655.

The facts of the present ease illustrate the difficulties with a rule which would allow exclusion of confrontation and cross-examination in cases in which the state seeks to revoke on the basis of alleged criminal activity proved merely by hearsay contained in an arrest report.

One of the police reports reviewed by the judge apparently contained a photograph of a line-up identification of the defendant relative to the alleged June 16, 1978 robbery. This report was the only evidence of this alleged criminal conduct, and the judge apparently based his decision to revoke, at least in part, upon a belief that the defendant had in fact participated in the crime. However, a witness for the defendant, one of his former employers, testified specifically and with certainty that the defendant was at work on the date and at the time of the alleged robbery.

In situations such as the present one, due process considerations require that the defendant be entitled to test the accuracy of the police report and the identifying witness via cross-examination. State v. Baggert, 350 So.2d 652 (La.1977).

For this reason, we hold that the trial court improperly based its decision to revoke solely on documentary evidence, which in the present case we find to be insufficient proof of the criminal activity in which the defendant is alleged to have participated.

Assignment 6

By this assignment, the defendant argues that the trial court erred in not providing, as required by Morrissey/Gagnon, a written statement as to the evidence relied on and reasons for revoking probation. The defendant argues that without such a statement, it may be difficult to determine which evidence the trial court relied upon and what its exact reasons for revoking the probation were.

The non-compliance with this requirement of Morrissey/Gagnon may undoubtedly make it difficult to determine exactly what evidence (and its exact nature) the trial court relied upon and the exact reason for the revocation of the probation. The rule requiring a written statement by the trial court is similar to, and serves much the same purpose as, the statutory requirement that the sentencing judge in a criminal case must state for the record the considerations taken into account in imposing sentence and the factual basis for them. See La.C.Cr.P. art. 894.1; State v. Scarbrough, 359 So.2d 982 (La.1978); State v. Jackson, 360 So.2d 842 (La.1978).

On the other hand, in our opinion, an oral statement by the trial court of his reasons for revocation, transcribed in the record, is sufficient to satisfy this requirement. In the present instance, as we apprehend the trial court’s statements, he did not find cause for violation in the alleged minor violations of parole conditions, insubstantial in nature. See footnote 8 above. He did, however, find adequate cause in the relator’s alleged participation in a robbery. Although we do not find this criminal conduct to have been proved adequately, the statement of reasons by the trial judge in the present case adequately affords us a basis to review his contentions and is in substantial compliance with the Mor-rissey/Gagnon requirement.

We find no reversible merit in this assignment by itself.

Additional Contention by State

In brief, the state argues that the issue before this court is moot. The state contends that the trial court which originally sentenced the defendant was without authority to suspend the sentence and place the defendant on probation, since he had previously been convicted of a felony. See La.C.Cr.P. art. 893 (Supp.1972). In support of this argument, the state provided us with court records which indicate that an accused bearing the same name as the relator was convicted of a felony (contributing to the delinquency of a minor) in July, 1974, two years prior to the convicted and suspended sentence with which we are presently concerned.

This issue was not raised in the trial court, and this contention is not properly before this court in this writ application by the defendant to review the issues tried below.

The remedy for correction of the sentence, if illegal, is specifically provided by La.C.Cr.P. art. 882(1). See, e. g., State v. Speed, 335 So.2d 28 (La.1976). Additionally, there are indications in the record that the defendant’s guilty plea and suspended sentence in 1977 were the result of a plea bargain. If this is true, the trial court may not be able to revoke the suspended sentence made pursuant to the plea bargain, but may be required to vacate the guilty plea in its entirety, since it could no longer be characterized as voluntary because of the non-performance or the impossibility of performance of the plea bargain. State v. Crosby, 338 So.2d 584 (La.1976); State v. Baudoin, 334 So.2d 186 (La.1976).

Conclusion

While we find no reversible merit in five of the assignments of error urged by the relator. Assignment 5, for the reasons stated, requires that we vacate the probation revocation here ordered and remand this case for a further revocation hearing to be conducted consistent with the views above expressed.

REVOCATION OF PROBATION VACATED; REMANDED FOR FURTHER HEARING.

BLANCHE, J., dissented.

       Judge Pike Hall, Jr., of the Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . These special conditions were imposed pursuant to La.C.Cr.P. art. 895 (Supp.1974), which also provides the general condition of probation that the defendant shall refrain from criminal conduct.

      . Relator had also been arrested on August 24, 1977 on a misdemeanor theft charge, which the probation officer did not know about at the time he entered the motion. This charge and another misdemeanor theft charge arising out of an incident of December 8, 1977 were pending in Baton Rouge City Court at the time of the revocation hearings on August 1 and 10, 1978. The probation officer apparently did not learn of these charges until sometime in July, 1978.

      . The court determined that the defendant had knowledge of the hearing and its nature on the basis of letters from the defendant to his probation officer and the presiding judge to this effect, which letters stated that the defendant would not be present at the hearing because he was afraid. Defense counsel objected to the admission of these letters into evidence since there was no proof that the letters were actually written by the defendant.

      . The defendant was simultaneously arrested for contempt of Baton Rouge City Court due to his apparent failure to appear for trial on the two counts of misdemeanor theft pending against him in city court. See note 2, above. The defendant was also charged with resisting arrest relative to this arrest.

      . The probation officer’s testimony relative to this arrest was identical to his testimony at the earlier hearing, except that he testified further that the victim had told him that he would not press the burglary charge and that he (the officer) had received a letter from the defendant stating that he would plead guilty to a simple battery charge.

      . Although this letter, according to the record, was filed into the record, it is not contained in the record furnished this court pursuant to its order when certiorari was granted.

      . This arrest report apparently contained a line-up photograph which was taken relative to the June 16, 1978 robbery charge, with a notation that the victim had picked out the defendant as the perpetrator. This record furnished to this court does not contain a copy of any of the police arrest reports or the line-up photo.

      .The trial judge specifically stated that he was concerned only with the allegations of criminal conduct, not the issues of whether the defendant had an adequate work record or whether he had complied with reporting requirements. These other arrest reports were considered by the judge, although not introduced into evidence.

      . We find no merit to defendant’s assignment No. 4, by which petitioner argues that the trial court erred in its unilateral and ex parte consideration of documentary evidence. We know of no rule which precludes a judge, as trier of fact, from reviewing in chambers documentary evidence introduced into evidence, or considering prior court proceedings of which the judge may properly take judicial notice.
      By assignment No. 6, the defendant argues that the trial judge erred in revoking the probation, when less drastic remedies available under La.C.Cr.P. art. 900 would have sufficed. In support of this proposition, defendant cites State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976).
      While we find that the procedure by which the petitioner’s probation was revoked warrants reversal (see text of this opinion), we are unable to say that criminal violations complained of, if properly proven, do not warrant the drastic remedy of revocation.

      . The testimony at the hearings indicates that defendant had not been convicted of any of the charges at the time of the revocation, except that he had apparently been convicted of contempt of court. This contempt conviction, however, was not properly proven. The record reveals only a double hearsay statement of the probation officer to support the conclusion that the defendant had in fact been convicted of contempt. Nor do we reach the issue of whether a contempt would, by itself, necessarily constitute a cause for revocation on the ground that the accused had been guilty of “criminal conduct”, La.C.Cr.P. art. 895(A) (1977).

      . In Baggert we addressed only the question of the applicability of the Morrissey/Gagnon rule to parole revocation proceedings. However, our holding in Baggert applies equally to probation revocation proceedings since there is no difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation. Gagnon v. Scar-pelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

      . We must surmise that this is the police report which included the photograph, although this fact is not clear from the record, and the police report was not included in the record before us.

      . We do not hold that the defendant will in all cases be entitled to compulsory process in order to have live witnesses present at the hearing. We do not intend to prohibit use, where appropriate, of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. (See Gagnon quoted above.) However, this use of documentary evidence must be reconciled with the defendant’s right to confront and cross-examine witnesses in all cases unless the hearing officer specifically finds good cause for not allowing confrontation.
      For example, Baggert (cited in text) concerned the situation in which the state sought to revoke on the basis of alleged criminal conduct. We held there that the defendant is entitled to be confronted with live witnesses to counter written hearsay reports of criminal conduct.

      . The trial court indicated its fear that a requirement for compliance with these constitutional prerequisites for revocation might inhibit the future use of probation for criminal convictions. We do not, by our opinion today, announce any rule that revocation requires a full blown confrontation-type hearing, nor do we intend to undermine the valuable rehabilitative tool of probation. We are certain, however, that the trial judge did not intend to state that the defendant in any particular revocation proceeding should not be entitled to enforcement of his constitutional rights, nor that he himself might not afford probation in an appropriate case because the federal constitution imposes certain protections of the individual before his probation may be revoked.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Jessie FORD.
    No. 62998.
    Supreme Court of Louisiana.
    March 5, 1979.

      Elizabeth W. Cole, 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., Robert T. Myers, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Jessie Ford was charged by information with aggravated battery, R.S. 14:34. After trial by jury he was found guilty as charged. He was sentenced to ten years’ imprisonment at hard labor, the maximum term under the statute. Defendant now appeals his conviction and sentence to this Court, urging the single assignment of error filed below.

On March 4, 1978, Alfred Thompson the victim of the offense charged went to the apartment of JoNel and Peggy Conerly in New Orleans. Thompson was in the process of moving and the Conerlys, friends of his, had promised to help. He arrived before his friends, and waited.

When the Conerlys returned to their apartment, defendant Ford walked in behind them. According to the witnesses at trial Thompson demanded money he claimed defendant had taken from him. The demand led to an argument that, in Thompson’s words, was neither particularly long nor heated. After Thompson made a second request for the money, defendant pulled out a pistol and shot him once in the chest. According to Thompson he was standing ten to fifteen feet away from defendant when he was shot, and had made no threatening moves toward defendant.

Defendant testified at trial that after the demand for money, Thompson removed his shirt and came at him with a pocket knife in his left hand. It was at this point, defendant testified, that he then pulled out his pistol and shot Thompson. No one else who testified saw that knife, nor was one recovered in the subsequent investigation. Two of the state’s witnesses, however, corroborated defendant’s testimony on one essential point: when the shot was fired, Thompson was moving towards defendant, either trying to take his shirt off (according to the witness Raymond Phillips), or unbuttoning it (in the testimony of the witness Sheri Conerly).

At trial defendant attempted to show that he shot Thompson in self-defense and that the shooting was justified under R.S. 14:19 which provides:

“The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.”

In an attempt to bolster his account of the shooting defendant took the stand and prepared to testify to a prior threat against him by the victim. Out of the jury’s presence, defendant informed the trial court that the victim had not threatened him directly, but told a friend of his, one Robert Richardson, that he, Thompson, would kill defendant over the alleged stolen money. Richardson then relayed this information to him. Richardson was not in court to testify-

The state objected to the entire line of questioning. Defense counsel insisted that the testimony was admissible not for “what was said . . . but what was in [defendant’s] mind, his reasons for fearing Alfred Thompson.” The trial court sustained the state’s objection and ruled as follows:

“The Defense has not produced Robert Richardson for cross examination as to the reality of the threats. But attempted to introduce hearsay testimony to show this defendant’s state of mind. And I am of the opinion communicative threats to the defendant would be admissible. But the evidence could only come from the witness, Robert Richardson.”

Defendant contends that the trial court erred in sustaining the state’s objection concerning testimony in which the defendant attempted to relate threats against him by the victim and conveyed to defendant by a friend.

He argues that the alleged prior threat by the victim relayed to him by Richardson was relevant to his state of mind — his fear of Thompson. — at the time of the offense; that evidence of the Richardson-Ford conversation was not hearsay, because the reality of the threat by Thompson was irrelevant to the purpose defendant’s testimony was to serve; and that the trial court’s ruling was thus clearly erroneous under this Court’s decision in State v. Morgan, 211 La. 572, 30 So.2d 434 (1947).

At issue in this case is the proper scope of R.S. 15:482 which provides:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

As noted in State v. King, 347 So.2d 1108, 1110 (La.1977), this Court has repeatedly held that

“[e]vidence of prior threats made by the victim . . [is] relevant in a case where the plea of self-defense has been raised to show that the victim was the aggressor and that defendant’s apprehension of danger was reasonable. State v. Green, 335 So.2d 430 (La.1976); State v. Lee, 331 So.2d 455 (La.1976); I Wigmore on Evidence, § 63 (3rd ed. 1940); McCormick on Evidence, § 295 (2nd ed. 1972). However, evidence of dangerous character or threats against the accused is not admissible in the absence of evidence of hostile demonstration or of an overt act on the part of the person slain. La.R.S. 15:482. Overt act in this context means any act of the victim which manifests to the mind of a reasonable person a present intention on his part to kill or do great bodily harm. See State v. James, 339 So.2d 741 (La.1976); State v. Green, supra; State v. Lee, supra; State v. Brown, 172 La. 121, 133 So. 383 (1931).”

In this case, the defense. presented evidence of an overt act which was sufficient to allow resort to this kind of evidence. The defendant testified that the victim removed his shirt and came at him with a knife. That account found corroboration in the state’s own witnesses on at least one important point: that the victim was moving toward the defendant at the time the shot was fired, and was fumbling with his shirt in some manner — an act reasonably supporting an inference he might have been reaching for something concealed within. The trial court, fully accepting the defense evidence in this regard, did not rule that the defense could not introduce evidence of the prior threat, but only that the defense would be permitted to do so only through the testimony of Richardson himself.

The trial court seems to have concluded that the defense meant to elicit defendant’s testimony to prove that Thompson in fact made the threat to Richardson and that the testimony by defendant that Richardson told him of Thompson’s threat was therefore hearsay. Given its premise (a premise not pertinent as we will point out in the succeeding paragraph), the court’s analysis was correct. In State v. Martin, 356 So.2d 1370, 1376 (La.1978), this Court adopted the definition of hearsay appearing in McCormick’s treatise on evidence:

“Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” C. McCormick, Evidence, § 246 (Cleary ed. 1972).”

Under McCormick’s definition, a witness is generally competent to testify that a statement has been made to him. In that case, the fact of communication turns as much on the credibility of the in-court witness as it does the out-of-court asserter. But if the witness thereby attempts to prove the fact that another conversation took place — in this case, Thompson’s conversation with Richardson — his testimony is hearsay, as is his attempt to vouch for the contents of that conversation. The truth of the matter then turns solely on the credibility of the out-of-court asserter; in this case, were we concerned with whether Thompson communicated the threat against defendant to Richardson the truth would hinge upon the credibility of Richardson’s assertion that Thompson made the threat.

But the purpose of defendant’s proposed testimony in the narrow context of the legal principle at issue was not to prove that Thompson threatened to kill him. Rather, as counsel made clear to the court at the time, it was to prove defendant’s state of mind as he confronted the victim in the apartment, after allegedly learning from Richardson that Thompson supposedly meant to kill him. As Wigmore points out, for this purpose, “[t]he actual making of the threats is immaterial, if there was a communication made to the defendant of supposed threats.” Wigmore, Vol. II § 247.

Used for this purpose the testimony is not hearsay. An accused might act reasonably and justifiably on the misinformation of a friend, if an overt act against him has otherwise been made. “It is sufficient,” the court thus wrote in Morris v. Territory, 1 Okl.Cr. 617, 99 P. 760, 762 (1909), “to prove that [the threats] were communicated to the defendant as having been made by the [victim] under such circumstances, and coming from such a source, as would authorize [a defendant] situated as [he] then was, to honestly believe that such information was true.” Under Louisiana law for force to be justified when no homicide results, the force must have been “reasonable” (an objective standard) and “apparently necessary” to the defendant (a subjective standard) R.S. 14:19; State v. Guinn, 319 So.2d 407 (La.1975). When death results, the standard (a simply objective one), is whether the defendant “reasonably believed” that he was in imminent danger of losing his life or receiving great bodily harm and that deadly force was necessary to save himself. R.S. 14:20.

The jury in this case was therefore entitled, as the fact finder, to hear defendant’s account in full. Testimony from Richardson would shed light on whether or not Richardson told defendant that the victim Thompson had threatened him. But that testimony would go to the weight of defendant’s account, not its admissibility. In a case such as this in which death does not result, the victim, being available, can certainly deny that he ever made the threat in the first place. In that case, with or without the third-party intermediary, the issue of whether the threat was communicated to defendant is for the jury, not the court to decide, according to its assessment of the in-court testimony.

Defendant’s reliance on State v. Morgan, supra, is therefore well-placed. In Morgan, defendant was charged with the death of his mother-in-law who was shot by mistake in a gun battle with his father-in-law. Defendant attempted to testify at trial that his mother-in-law had told him, some years in the past, that her husband had tried to kill her and was prevented from doing so only upon the intervention of her sons. The trial court excluded this testimony as hearsay. This Court disagreed, and reversed:

“Our opinion is that the defendant’s testimony was admissible for the purpose of contradicting the evidence which the State has introduced to prove the purpose for which the defendant brought his shotgun in his automobile when he went to his father-in-law’s house in search of his wife. Certainly the evidence was not objectionable as being hearsay evidence, because it was not offered for the purpose of proving the truth of what the mother-in-law had told the defendant regarding the violent disposition of her husband, but was offered merely to prove the fact that she had made the statement to the defendant. Whether the defendant’s admission that the statement made to him by his mother-in-law was made four or five years before the time of the homicide made the evidence too remote to be of any importance in this case was a matter for the jury to determine.”

In this case, the jury faced two essential inquiries: (1) whether defendant actually believed he was in danger of attack (even if that belief did not appear objectively reasonable); and (2) whether the force he used under the circumstances was reasonable. The defense was entitled to have the jury reach those determinations by considering all circumstances of the offense, including whether defendant believed the victim had threatened his life. The trial court’s ruling was therefore erroneous, and this assignment has merit.

Decree

For the foregoing reasons the conviction and sentence of defendant Jessie Ford are reversed and the case remanded to the district court for re-trial or such further action as is appropriate.

CONVICTION AND SENTENCE REVERSED; CASE REMANDED TO THE DISTRICT COURT.

DIXON, J., concurs.

SUMMERS, C. J., dissents.

       Judge Pike Hall, Jr., Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.


text:
    STATE of Louisiana, Appellee, v. William A. SHORT, Appellant.
    No. 63132.
    Supreme Court of Louisiana.
    March 5, 1979.

      Jack Peebles, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., P. Michael Cullen, Abbott J. Reeves, Asst. Dist. Attys., for appel-lee.
   TATE, Justice.

The defendant was convicted by a six-person jury of three counts of obscenity in violation of La.R.S. 14:106. He was sentenced to one year in the parish prison, suspended on condition that he serve 30 days in jail and pay a fine.

The chief factual defense was that the magazines purchased by the vice officers, for which the defendant is prosecuted, were not obscene because they did not violate contemporary community standards. The defendant further denied that he knew these particular magazines were among the stock of his newsstand.

The defendant’s appeal raises seven assignments of error. We find the principal issue raised by this appeal is raised by the assignments questioning the trial court’s refusal of a lay witness, the defendant’s son, to testify concerning community standards (Assignments 3 and 4) and to permit introduction into evidence, in connection with this witness’ testimony, of two magazines purchased by him at another store in Jefferson Parish (Assignment 5).

Facts

At the time of his arrest, defendant was the owner/operator of a newsstand. Officers from the Jefferson Parish Sheriff’s Office purchased three magazines containing sexually explicit photographs.

At the trial the defense called the defendant’s son, who worked in the store at the time of the arrest. The son testified that other stores in the parish sold magazines that were “a lot worse” than those sold by the defendant. The defense counsel showed the witness two magazines, which the witness identified as magazines he had bought from a store near defendant’s.

The trial court then sustained the state’s objections to defense questions asking the witness to compare the materials sold with that sold in other newsstands of the parish, and asking him to describe the contemporary community standards in the area with regard to the sale of sexually explicit materials.

At the close of the witness’s testimony, the defense attempted to introduce into evidence the two magazines the witness said he had purchased at the neighboring bookstore, but the state objected and the court sustained the objection.

I. Lay Opinion Testimony Concerning Community Standards

If the witness had answered the questions to which objections were sustained, he would have been stating his opinion. Opinion evidence is generally not admissible (although the exceptions and its flexible application have much eroded this general rule). La.R.S. 15:463; see McCormick’s Handbook of the Law of Evidence, Section 11 (2d ed. 1972); Wigmore on Evidence, Sections 1917-18 (Chadbourn rev. 1978).

This general rule has been justified on the ground that a witness must not be allowed to “usurp the function of the jury” by drawing inferences from his sense perceptions, rather than reporting the sense perceptions themselves. McCormick, Section 1920. However, there is no bright line between “opinion” and “fact”; rather, there are varying degrees to which a witness will summarize his factual sense perceptions when testifying. See State v. Garner, 255 La. 115, 229 So.2d 719 (1969) (witness’s identification of a substance he saw as “blood” held to be statement of fact); Pugh, Louisiana Evidence Law 143-44 (1974) (Garner criticized on the ground that identification of blood requires an inference from sense perceptions); Wigmore, Section 1919.

At its best, the rule against lay opinion testimony operates to exclude evidence which, although relevant, is superfluous. The witness should testify from his firsthand knowledge, in as much detail as the trial judge in his discretion feels appropriate. Nevertheless, as Wigmore, McCor mick, and Pugh indicate, the opinion rule should not be applied so strictly as to exclude first-hand testimony that may be several inferences removed from raw sense perceptions, yet more helpful to the jury than mere recitation of such perceptions.

The major recognized exception to the rule excluding opinion testimony is the expert opinion rule. La.R.S. 15:464 provides: “On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.”

Expert testimony is admitted because the expert is uniquely skilled at drawing inferences. His conclusions from real or hypothetical data are more helpful to the jury than the data themselves, without the conclusions. The jury retains the right and power to accept or reject his conclusions.

The Louisiana expert testimony statute follows the commentators in recognizing that not only “special training” but also “experience ” can qualify an individual as an “expert” on certain matters.

Thus, for instance, a person who had driven automobiles and observed their speed over a period of time was permitted to testify as to his “opinion” of the relative speed of a particular car on a particular occasion. Fidelity & Casualty Co. of N. Y. v. Aetna Life and Casualty Co., 244 So.2d 255 (La.App.3d Cir. 1971); Wigmore, Section 1977. The jurors themselves could presumably have formed an “opinion” of the car’s speed had they themselves been present; and they could form such an opinion if the witness would recount accurately, split-second by split-second, the data from which he drew his opinion of the car’s speed. In this instance, however, his “opinion” is less time-consuming, less confusing, and probably more reliable than his memory of his sense perceptions.

Similarly, when a witness testifies to the reputation that an individual has in the community, see La.R.S. 15:479, he is summarizing an inference from myriad individual conversations he has had with members of the community, some of which he may not even remember in detail: he is, in effect, giving his opinion of what people think of the individual. See State v. Frentz, 354 So.2d 1007 (La.1978).

Community standards are clearly relevant to an obscenity conviction. La. R.S. 14:106 defines as “obscene material” that which “the average person applying contemporary community standards” would find appeals to the prurient interest.

How are such standards to be proven?

Relevant expert testimony may be admissible to prove community standards. Kaplan v. California, 417 U.S. 115, 121, 97 S.Ct. 2680, 2685, 37 L.Ed.2d 492 (1973); Sehauer, The Law of Obscenity 276-91 (1976).

With regard to proof by lay evidence, it is theoretically possible to call as witnesses a statistically significant sample of a community — say, a thousand persons — and to demonstrate that these persons had been selected in such a way as to guarantee a cross-section. This, however, would be impractical. However, it might also be possible for an individual witness to testify concerning numerous of his personal experiences in the community, from which the jury might infer a community standard. However, like a witness’ testimony about the reputation of another (cf. State v. Frentz, cited above, at 354 So.2d 1011), it is much more practical to permit a witness to summarize and draw inferences from his numerous experiences, which might in themselves seem trivial and cumulative. See, e. g., State v. Henry, 250 La. 682, 198 So.2d 889 (1967); reversed on other grounds, Henry v. Louisiana, 392 U.S. 655, 88 S.Ct. 2274, 20 L.Ed.2d 1343 (1967).

Generally, therefore, community standards should be regarded as one of those facts, like speed and reputation, on which a qualified lay witness — qualified by experience rather than by training — may give his opinion. However, the party wishing to offer such opinion evidence must first demonstrate that the witness is in fact qualified to give an opinion. Moreover, since the jurors, who are likely to be residents of the same general community, are themselves more capable of drawing inferences of community standards than, for instance, of the speed of an automobile they have not seen, or of the reputation of an individual of whom they have not heard, the trial judge in his discretion may feel that a greater threshold showing of “qualification” is necessary.

In State v. Henry, 250 La. 682, 198 So.2d 889 (1967), we upheld the trial judge’s admission of opinion testimony from a banker and a priest regarding community standards. Both witnesses had been questioned about their backgrounds, contacts, and experiences in the community, and “it would have been difficult to find another so well qualified to express an opinion as to the ‘average person’ in the community.” 198 So.2d at 894-95.

In contrast, the witness here was asked only about his experiences in bookstores selling sexually-oriented literature. This qualified him only to testify about the practices of these establishments — not to give his opinions about community attitudes in general. If a proper predicate had been laid, by asking the witness about his life in the community and about his experiences outside sexually-oriented bookstores, perhaps he would have been a qualified witness notwithstanding the fact that he was the defendant’s son and co-worker. Nevertheless, in the absence of an attempt so to establish his qualifications, we find no reversible abuse by the trial court in exercising its discretion to exclude the witness’s opinions because of the insufficiency of the predicate shown for them.

II. Evidence of Sale of Comparable Material

One of the questions to which the witness’ answer was excluded involved a comparison of the material defendant was charged with selling and material sold in other stores. Error was also assigned to the exclusion of two magazines purchased at another store.

The mere fact that other stores were selling material that was as bad as, or worse than, the material sold by defendant would not render defendant’s material less obscene. Only a showing that the community accepts or tolerates the material — not merely a showing that such material is sold, or that it has not thus far been prosecuted — would be material evidence of contemporary community standards of obscenity. Hamling v. United States, 418 U.S. 125, 125-26, 94 S.Ct. 2912, 41 L.Ed.2d 590 (1974); Schauer, The Law of Obscenity 133-34 (1976).

However, it is difficult to imagine how community acceptance of material could be shown without first discussing the availability of the material. Therefore, the trial judge should perhaps have allowed the witness to answer the question concerning materials that were available in the community. That evidence of availability does not itself prove acceptance or toleration is an argument addressed to the weight, not the admissibility, of such evidence.

Nevertheless, in the context facts of the present trial, the judge’s exclusion of availability evidence is not reversible error.

Prior to the question to which an objection was sustained, defense counsel was allowed to elicit answers to a nearly identical line of questions. The witness was allowed without objection to testify that in certain “stores” he had seen materials that were much more sexually explicit, “a lot worse,” than those his father was charged with selling.

Thus, the later question, which differed from the earlier questions only in that it pertained to “newsstands” rather than “stores”, might fairly be regarded as cumulative. Moreover, defense counsel made no attempt to show any indicia of community acceptance other than the availability of explicit materials in other stores, although he had an opportunity to develop such evidence. Therefore it is likely, and the trial judge may have inferred, that the cumulative later questions concerning availability were offered for their own sake, and not as part of a larger pattern showing acceptance.

At the time the magazines were offered into evidence, defense counsel had asked the witness all the questions he planned to ask about the magazines, and had tendered the witness. All the questions asked about the magazines had to do with their availability in the other store, and their sexual explicitness. There was no other evidence of community acceptance or toleration, which (unlike mere availability) would have been material to the case. Therefore, the judge’s refusal to allow their introduction into evidence was within his discretion. See Hamling, cited above, 94 S.Ct. at 2912.

Summary

Lay opinion testimony is admissible to show community standards concerning obscenity, provided that the witness has been shown to be qualified to form such opinions. In this case, no such qualification was shown.

Evidence of the availability of comparable materials in the community, while it is not per se material to community standards, may be relevant to proving community acceptance or toleration of such material, and should normally be admissible for such purpose. However, in the context in which the issue was raised in this case, the trial judge did not commit reversible error in holding the testimony inadmissible as proof of mere availability, rather than of community acceptance or toleration, of such materials.

Decree

The conviction and sentence are affirmed.

AFFIRMED.

SUMMERS, C. J., concurs.

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Third Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . The defendant assigns several other errors, which are without merit: Assignment 1: That the trial court erroneously denied his motions to quash based on the unconstitutionality of La.R.S. 14:106, and of the six-man jury. These contentions were rejected in, respectively, State v. Burch, 365 So.2d 1263 (No. 62,127), and State v. Wrestle, Inc., 360 So.2d 831 (La.1978); Assignment 2: That the court erred in not excusing for cause a juror who testified on voir dire that she thought “girlie magazines” to be “nothing but filth.” The juror indicated, however, that she thought she could apply the law as given to the jury by the court, and in light of this and numerous other questions asked for the purpose of ascertaining whether prospective jurors were impartial, the trial judge did not abuse his discretion; Assignments 6 and 7: That the trial judge erred in charging the jury, and in not giving requested special jury charges. Taken as a whole, the jury charge given by the trial judge was correct, and included all aspects of the requested special charges that were wholly correct and pertinent. See La.C.Cr.P. art. 807.

      . The two questions to which state objections were sustained were:
      “How would you compare the material sold in the other neighborhood news stores in Jefferson Parish with the material sold in your adult section?
      “Would you describe the contemporary community standards in Orleans proper, including both Jefferson Parish and Orleans Parish from the standpoint of what is the practice with regard to the sale of sexually explicit materials?”

      . A catalogue of sense perceptions which are too “raw” would be time-consuming and confusing (e. g., a witness might testify that he saw a large object that moved on four wheels, rather than stating his “inference” that he saw an automobile). On the other hand, too much inference and summarization (e. g., “he was driving carelessly”) will invariably require further explanation (“he was driving on the left-hand side of the road”) which in turn will render superfluous the initial “opinion” statement, albeit relevant and based on the witness’ first-hand knowledge.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Timothy RICH.
    No. 63152.
    Supreme Court of Louisiana.
    March 5, 1979.

      A. J. Boudreaux, Metairie, 24th Judicial District Indigent Defender Board, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Robert A. Pitre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

Defendant, Timothy Rich, was convicted of aggravated rape, a violation of R.S. 14:42. He was sentenced to a term of fifty years at hard labor in the custody of the Louisiana Department of Corrections. Defendant now appeals his conviction and sentence to this court.

Defendant filed twelve assignments of error which he has consolidated into three arguments. He also argues that an examination of the record discloses a patent error. The latter contention has merit. The conviction and sentence therefore must be reversed. For that reason we find it unnecessary to consider defendant’s twelve assignments of error.

Defendant purportedly committed the aggravated rape for which he was convicted on August 31, 1977. At that time the statute under which he was later charged, R.S. 14:42, provided that rape, deemed to have been committed without lawful consent because of the presence of certain enumerated circumstances, was aggravated rape and punishable by death. The penalty prescribed, death, rendered the crime of aggravated rape a “capital offense” in the contemplation of the Code of Criminal Procedure. C.Cr.P. 933. R.S. 14:42 was amended by Act 343 of 1977, a law which took effect on September 9, 1977 and provided a new penalty, one other than death. Nonetheless, on the date of the offense, August 31, 1977, aggravated rape was a capital crime in Louisiana. Imposition of the death penalty, however, was not legally available in Louisiana because on July 6, 1976 the United States Supreme Court decided Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), which declared that the imposition and enforcement of the death penalty in aggravated rape cases under the statute at issue in this case constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furthermore, several months before commission of the crime at issue the United States Supreme Court had rendered its decision in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), in which the death penalty for aggravated rape cases was found to be unconstitutional per se; accordingly, persons prosecuted for aggravated rape in this country could no longer receive the death penalty. Therefore, at the time of the offense in question aggravated rape by state law was a capital crime, yet defendant could not be exposed to the death penalty. The trial judge was thus required to make threshold procedural decisions in connection with the trial of the case.

In analogous situations this court has repeatedly declared that, notwithstanding abolition of the death penalty, upon prosecutions of crimes for which the legislature had prescribed the death penalty, those offenses retained their classifications as capital for the purpose of deciding which procedural rules are applicable. In these cases our court has reasoned that although the death penalty may have been eliminated, the legislature’s classification of crimes as capital for procedural purposes was not impliedly eliminated because a crime is classified according to its gravity and the offenses retained their serious nature. See State v. Rhymes, 284 So.2d 923 (La.1973); see also State v. Holmes, 263 La. 685, 269 So.2d 207 (1972) and State v. Flood, 269 So.2d 212 (La.1972).

Accordingly, this court has required jury sequestration in a “capital” murder case even though, post-Furman, death was not a permissible sentence (State v. Holmes, supra); has held that bail was not available in a post-Furman “capital” murder case where the proof is evident or the presumption great (State v. Flood, supra); has held that bail was not automatically available in a “capital” aggravated rape prosecution (State v. Rhymes, supra); has required jury sequestration in a “capital” aggravated rape trial (State v. Hunter, 306 So.2d 710 (La.1975)); and has unanimously held that a defendant charged with the “capital” offense of murder could not waive trial by jury, and was entitled to juror sequestration and a unanimous verdict (State v. Lott, 325 So.2d 576 (La.1976)). Additionally, Holmes and Flood and succeeding cases were cited with approval in connection with an incidental question in State v. McZeal, 352 So.2d 592 (La.1977).

The foregoing demonstrates that the jurisprudence has been consistent and clearly requires that the trial of a case such as the present one, an aggravated rape committed on August 31, 1977 (at which time the state statute categorized the crime as capital but execution was impermissible because of Selman and Coker), conform procedurally to the requirements applicable to a “capital” prosecution.

In the present case the matter was not tried in accordance with procedural rules applicable to capital prosecutions. The jury was not sequestered, although the defendant requested that this be done; C.Cr.P. 791 requires sequestration in capital cases. The jury was instructed that only ten, rather than twelve, jurors need concur to reach a verdict.

It is clear from our jurisprudence that when the lack of jury sequestration in a capital case is reflected in the court minutes, as in this case, the error is one which is discoverable by a mere inspection of the pleadings and proceedings. See State v. Luquette, 275 So.2d 396 (La.1973).

It is evident, therefore, that the trial judge erred in treating the case procedurally as one less than capital. The state’s attempt to distinguish the present case from the earlier cited decisions is unavailing. The mere fact that this case was tried several months after Coker, when the death penalty was invalidated for rape cases, does not permit a departure from the rationale and the rules of the cases cited above. Conformance to the procedures mandated in the trial of capital cases was no less required.

For the foregoing reasons, the conviction and sentence of defendant Timothy Rich are reversed. The case is remanded to the district court for a new trial.

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Third Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . Article 920, C.Cr.P. provides:
      “The following matters, and no others shall be considered on appeal:

      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

      . On this point the court has not been unanimous, but the court majority nonetheless has been consistent since the Holmes and Flood decisions in November, 1972. Two justices, Barham and Tate, dissented in Holmes and Flood. The latter two and Justice Calogero dissented in Rhymes. Thereafter, the court has unanimously followed the court majority.

      . This instruction was wholly improper in a “capital” prosecution such as the instant case; however, the objection of defense counsel was voiced only when the jury returned to the courtroom after having reached a verdict. See State v. Henry, 352 So.2d 643 (La.1977).


author: BLANCHE, Justice.

text:
    STATE of Louisiana, Appellee, v. Norman SPOONER, Appellant.
    No. 63185.
    Supreme Court of Louisiana.
    March 5, 1979.
    Andrew Jack Bennett, Jr., Bennett & McLaughlin, A Law Corporation, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John W. Sinquefield, Mary V. Gilliland, Asst. Dist. Attys., for plaintiff-ap-pellee.
   BLANCHE, Justice.

Defendant, Norman Spooner, was convicted of first degree murder, in violation of R.S. 14:30, and was sentenced to life at hard labor, to be served without benefit of parole, probation or suspension of sentence for twenty years.

Defendant made twelve assignments of error and appeals based upon two of them, numbers six and eight:

ASSIGNMENT OF ERROR NUMBER SIX: the court below erred in admitting only the first page or cover letter of the copy of the defendant’s medical record from East Louisiana State Hospital at Jackson, Louisiana.
ASSIGNMENT OF ERROR NUMBER EIGHT: the court below erred in admitting defendant’s confession(s) to police officers without placing the burden on the State to show that the defendant was sane and competent to confess at the time his inculpatory statements were made.

Defendant was charged by indictment of February 24, 1975, with the first degree murder of Linda Knippers. Miss Knippers lived on East Boulevard in Baton Rouge; she disappeared some time during the evening of Tuesday, November 13, 1973. She was last seen at about 7:15 p. m. when she visited with her roommate, DeWanna Walls, at Miss Walls’ place of employment.

At 7:45 a. m. on November 15, 1973, the police were notified that a body had been found covered with a board in a drainage ditch behind the Lutheran cemetery and in a wooded area around the “ball park” of McKinley Junior High School, near the railroad tracks. In the ditch between the ball park and the tracks there was a wooden door which covered the body. A blue and white Torino was found in the area at the back of the cemetery. Time of death was placed at between 1:00 a. m. and 6:00 a. m. of November 14, 1973.

In December of 1974, Norman Spooner was arrested in Baton Rouge on a burglary charge. Also in December, Denver Jackson was arrested on a charge of auto theft. Both were held in the parish jail. Jackson told two police officers that he knew Spoon-er had murdered Miss Knippers, and the officers, Robert Gill and Ronnie Alford, questioned Spooner three or four times. (One officer said three, one said four.) On two occasions, December 11 and December 19, 1974, Spooner signed a waiver of rights form and made inculpatory statements. On a third occasion, December 20, he refused to sign a waiver of rights form and made a statement which in some respects contradicted his prior statements. The officers indicated that on all occasions he asked to see Dr. Landry, the Coroner of East Baton Rouge Parish, because his head was all “messed up.” On December 11, Spooner was confronted with Jackson while the officers were questioning him. There is some cloudiness in the testimony as to the confessions, since Spooner did not make a very clear or fully detailed statement; no complete written or taped statement was taken, there were only the notes which the officers made at the time. According to the officers, Spooner said that he had been watching Miss Knippers for a while, had stolen a blue car on the day of her disappearance, seen her go back and forth from her car to her apartment, forced her to enter his car, taken her to the cemetery, forced her out of the ear, then, when she struggled with him, screamed, and threatened to go to the police, he beat her, dragged her to the ditch, and left her body there, covered with a door. Defendant’s statement to the police did not include a reference to strangling the woman, he just said he beat her. There was no medical testimony showing that Miss Knippers had been beaten. The evidence in the record also shows that the car which was found in the cemetery was stolen, but had been stolen on November 14, 1973, the day after Miss Knippers had been reported missing.

There is in evidence the testimony of Denver Jackson, which is contradicted in part by the prior statement which Jackson made to Edward James, an investigator with the Office of the Public Defender.

Spooner was taken to see Dr. Landry on December 19, 1974, at which time Dr. Landry cautioned the officers not to charge him with murder as Spooner had threatened to commit suicide. The following day, after the officers tried to get Spooner to make a final and more complete confession and were unsuccessful, Spooner' was taken to East Louisiana State Hospital where he remained from December 20, 1974, until February 20, 1976, and again from January 31, 1977 (the last admission date mentioned by the Superintendent) until July 29, 1977.

Trial of this matter was held May 22 through May 24, 1978. At trial defendant sought to introduce into evidence the file from the East Louisiana State Hospital which covered the period of his commitment there. He was allowed to introduce only the cover letter, which showed the duration of the commitment; he was not permitted to produce the file which would contain any observations of his condition at the time of admission or the diagnosis which was made, though there is in the record of this case prior to trial a series of psychiatric evaluations showing that the defendant was a borderline mental retardate suffering from schizophrenia, paranoid type, that prior to his arrest in December of 1974 he had been hospitalized at Mandeville, and that this time of the arrest was a brief period between hospitalization at Mandeville and hospitalization at Jackson.

Defendant claims that the refusal of the court below to consider the hospital records was error, as the records would show that he was not mentally competent at the time he made the inculpatory statements introduced at the trial. Inclusion of the records in evidence might show that the State would have the burden of proving that defendant was competent to give a credible inculpatory statement.

The State argues that the exclusion of the records was proper, that the exception to the hearsay rule which is established by R.S. 13:3714 should be very narrowly interpreted, so that only the “administrator or the medical records librarian of the hospital in question” would be the ones who could certify any records so as to qualify them for admission in evidence. Because the records herein were certified by the “Superintendent” of the East Louisiana State Hospital, the State argues they are inadmissible.

That hearsay evidence may not be admitted is a fundamental rule. R.S. 15:434. However, R.S. 13:3714, as revised in 1977, establishes one of the limited exceptions to the hearsay rule. The question for our consideration is whether a “Superintendent” is an “administrator” for the purpose of this exception.

Courts of this state may take judicial notice of the state statutes. R.S. 15:422. It is noted that the legislature has enacted statutes dealing with the establishment of the various state hospitals and the duties of those charged with operating them. See generally R.S. Title 28 and R.S. 40:2001, et seq.; for more particular examples see R.S. 28:2(14) and R.S. 40:2013.3. It is clear that the person denominated “Superintendent” by the acts of the legislature is the one who is the “administrator,” and we so hold. The general term “administrator” is not to be limited to one who is given that title, but is to be read as applying to those who in fact fulfill the functions of an administrator.

The court below erred in excluding the record which the East Louisiana State Hospital certified through its Superintendent. In this case, this error was not harmless error.

Accordingly, we reverse the defendant’s conviction and sentence and remand for a new trial. In connection with the admissibility issue, the trial court will have to consider as evidence the entire hospital record in determining whether the State’s burden of proving beyond a reasonable doubt the free and voluntary nature of defendant’s inculpatory statements has been met. We call to the court’s attention our opinion in State v. Glover, 343 So.2d 118 (La.1977), which clearly recognizes that when mental illness is at issue, the State bears the burden of proving that the extent of any mental disease or defect was not such that it would prevent the giving of voluntary statements. Should the trial court determine the statements are admissible, the defendant would then have the opportunity to present to the jury the hospital records which it could consider in deciding the weight to be accorded the statements.

For these reasons, the conviction and sentence of the defendant are reversed and his case remanded to the district court for a new trial in accordance with law.

CONVICTION AND SENTENCE REVERSED AND CASE REMANDED.

SUMMERS, C. J., dissents.

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . The police never stated the details of what Jackson told them, but at trial Jackson testified that Spooner told him he had killed Miss Knip-pers and showed him her body.