author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. Eddie Lee WADDLES, Appellant.
    No. 57288.
    Supreme Court of Louisiana.
    June 21, 1976.
    Dissenting Opinion July 28, 1976.
    Rehearing Denied Sept. 10, 1976.

      Harry D. Simmons, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of aggravated rape, La.R.S. 14:42, and sentenced to death. On his appeal, he relies upon 47 assignments of error. We find merit in Assignments 3, 33, 39, 40, 41, 44, and 45 — all relating to the single issue of whether the defendant was denied a fair trial by the incorrect admission of evidence relating to an entirely different offense than that for which the defendant was on trial — and, accordingly, must reverse.

I.

In pragmatic terms, the issues posed to us are as follows:

1. Should a death penalty for rape be affirmed, when the sole evidence connecting the accused with the rape is the unexplained presence of his fingerprint at the scene of the crime, although the victim cannot identify him?

Under this statement of facts, arguably there is “some evidence” that the accused committed the proved rape, and the appellate court might be unable to review its sufficiency. See State v. Pryor, 306 So.2d 675 (La.1975). However, we might further posit that it may be unlikely that a jury would find an accused guilty of a capital offense upon such tenuous evidence as to his possible guilt, which must be proved beyond a reasonable doubt.

2. Should the death penalty be affirmed when, in addition to the fingerprint (but in the complete absence of any other evidence connecting the accused with the crime), the jury had before it evidence that in fact the accused had committed a burglary arguably involving an unsuccessful rape attempt upon a different person some five miles distant on an occasion a week later?

Of course, if the defendant had been charged with the subsequent burglary or attempted rape, the jury might reasonably have found him guilty of such non-capital offenses. The pragmatic issue posed is whether, although there is in fact little evidence to support a conviction of the present completed rape (a capital offense), the death penalty should nevertheless be allowed to stand because of the evidence of the other crime (s), the burglary or the attempted rape (non-capital offenses) ?

II.

The issue of law posed for us is whether the other offense (the burglary), a crime completely independent of and unrelated to the present offense (the aggravated rape) with which the defendant is accused, is nevertheless admissible in evidence under the limited exceptions and for the limited purposes permitted by La.R.S. 15:445 and 446, i. e., to show knowledge, intent, or system.

Preliminarily, it is to be remembered that under our law the state has the burden to prove beyond a reasonable doubt the accused’s guilt of the specific crime charged, and that proof of present guilt may not properly be made by proof of general bad character or of prior criminal record or of other unrelated criminal activity. To repeat what we stated in our leading decision of State v. Prieur, 277 So.2d 126, 128 (La.1973):

The admissibility of other acts of misconduct involves substantial risk of grave prejudice to a defendant. As to the prejudicial effect of evidence of other crimes, Wigmore says:
“ * * * The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. * * *” 1 Wigmore, Evidence § 194 (3rd Ed.).
The probative value of evidence of unrelated offenses in relation to the charged offense should therefore be weighed in light of its possible prejudicial effect, its tendency to influence the triers of fact improperly as to the present guilt of the accused. See McCormick on Evidence, § 190 (Cleary Ed. 1972). . . .
Evidence of crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. . . . McCormick on Evidence, § 190 (Cleary Ed.1972). Aside from related offenses admissible as part of the res gestae, and convictions admissible for impeachment purposes, Louisiana’s statutes provide for only three exceptions — acts relevant to show intent, knowledge or system.

In State v. Moore, 278 So.2d 781 (La.1973), we said: “* * * [Tjhere is always this second qualification to the admission of evidence of other offenses in a criminal prosecution: even if otherwise admissible, if the prejudicial effect outweighs the probative value of evidence of other offenses, such evidence should be excluded.”

The issue of law thus before us is whether: (1) Was the proof of the burglary (attempted rape) relevant to the issue of the innocence or guilt of the accused as to the present aggravated crime charged?; (2) Even if relevant, did its prejudicial effect outweigh whatever probative value it may have had, so as to require its exclusion as unfairly denying the accused a fair trial upon his guilt or innocence of the present capital crime with which he is charged?

III.

The present crime charged involves a rape of Mrs. A. on November 16, 1974, at about 2:00 a. m. in the morning. While her husband was at work, the assailant broke in through a kitchen window, went to the darkened bedroom of the lady, completely undressed in her room (dropping his clothes on the floor) where the lights were out, and forced her to submit to him (upon her awakening) by threatening her with pliers, part of the household tools.

Mrs. A. could not identify her assailant as black or white (although she knew that he had a mustache, thick lips, and close-cut hair). At the time of her initial complaint to the police, she thought her assailant had about the same build or was maybe a little smaller than her husband, being about five feet ten inches in height and 165 to 170 pounds in weight. At the trial, Mrs. A. was unable to identify the defendant as her rapist.

As soon as her assailant left, Mrs. A. hysterically called a neighbor on her telephone.

A latent fingerprint taken at the kitchen-window entry was later proved to be the defendant’s. The identification occurred when he was arrested for the “other” crime a week later, involving Mrs. B. (At that time, under police interrogation, he admitted to having committed a burglary in which he stole some money from a house (unidentified by him but in the general neighborhood as Mrs. A’s), which he had entered via a kitchen window. This admission, of course, is probative evidence relative to the present charge.)

The offense involving Mrs. B. occurred on November 23, a week after the rape of Mrs. A. In this later crime, a black man (later identified as the accused) entered Mrs. B’s home, apparently by way of an inadvertently unlocked door. He entered her bedroom fully clothed, armed with a gun. He did unzip his trousers (although he never removed them), but Mrs. B. was able to distract him from his purpose (presumably a sexual offense) by pleading with him not to harm her little girl in the next room.

The assailant asked Mrs. B. to fix him a drink, and she did so in the living room. They talked for approximately one hour. He left, taking some money (out of her purse) and her automobile.

As soon as he left, Mrs. B. screamed for help. She was unable to telephone police because he had ripped out her telephone before he left her house.

IV.

The state argues that proof of the Mrs. B. incident was relevant to prove the identity of Mrs. A’s rapist. The state argues that evidence that the defendant used the same method of operation, and that system is admissible for this purpose under La. R. S. 15:446: “* * * where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.” See State v. Vince, 305 So.2d 916 (La.1974).

The state argues that the offenses are “similar” for the following reasons: Both offenses occurred in residential neighborhoods in the southern part of Shreveport, about five miles apart. Both involved unauthorized entries in occupied residences with the alleged intent to commit rape and theft. In both instances, the women were alone and were in their own bedrooms, with small children present in the home.

We pretermit whether proof that another crime was committed by the same common system as the offense charged is always relevant to prove that the present accused’s identity must be the same as the offender in other crimes because they were committed by the same method — it might well be argued that proof that the accused committed another crime simply proves that he committed another crime, absent the relevance of system to prove some issue in the case or an element or continuity of the crime charged, other than the peripheral similarity of the systems used to commit the crime. See concurring opinions in State v. Thomas, 290 So.2d 690, 694 (La.1974); and State v. Frezal, 278 So.2d 64, 76 (La.1973).

Assuming, however, that the showing of a common system of unrelated crimes might here be relevant to prove the identity of the defendant as the offender in the present case, State v. Vince, 305 So.2d 916 (La.1974), the common system used in both crimes must be so similar and individual as preponderantly to demonstrate that the perpetrator of both must be identical. (In Vince, for instance, in each instance, the perpetrator approached young girls and asked them to help him find his dog, then lured them into a deserted area and then raped them; and the offenses occurred in the same neighborhood within a short time of one another.)

Here, the alleged elements of similarity are common to a large proportion of the rapes reviewed by this court. The mere fact that both homes were in the southern part of the city of Shreveport, a municipality of some two hundred thousand population, is obviously not sufficient similarity — the perpetrator of any other rape in the southern part of Shreveport could, if that were sufficient reason, without more be similarly charged with Mrs. A’s rape.

Additionally, as our summary of the two crimes illustrates, there were distinct dissimilarities between the offense against Mrs. A. and that against Mrs. B. For instance Mrs. A’s assailant broke in through a window; Mrs. B’s entered through an unlocked door. Unlike Mrs. A’s assailant, Mrs. B’s entered her home armed with a gun. Unlike Mrs. A’s rapist, Mrs. B’s invader ripped the telephone off the wall to prevent police pursuit. In addition, the approaches as to the two victims were quite different, as noted, as were the offender’s actions before and after the victims were awakened.

We hold, therefore, that the evidence as to the dissimilar offense against Mrs. B. in a different neighborhood of the city was not relevant to prove identity or guilt of the defendant in the charge against him of the crime against Mrs. A.

Decree

Accordingly, the conviction must be reversed and the case remanded for a new trial.

REVERSED AND REMANDED.

MARCUS, J., concurs.

SANDERS, C. J., dissents.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

Eddie Lee Waddles was tried for the aggravated rape of Mrs. A at approximately two o’clock on the morning of November 16, 1974. Exactly one week later, and at the same time of morning, he attempted to commit aggravated rape upon Mrs. B. Shortly after this latter attempt, he was apprehended by police officers while in possession of Mrs. B’s property and automobile.

During Waddle’s trial for the aggravated rape of Mrs. A, evidence was adduced to establish an attempted aggravated rape perpetrated on Mrs. B in order to show identity, system and intent. This Court reverses Waddles’ conviction and sentence, holding that the two offenses were dissimilar, and, therefore, evidence of the crime perpetrated upon Mrs. B was irrelevant to establish the identity of Waddles, or the system he employed or the intent he harbored in committing these two offenses.

Without dwelling upon the similarity of the two offenses, mentioning only that they occurred far apart in south Shreveport, the Court goes to great lengths in an attempt to show their dissimilarity. I cannot agree. In my view the offenses committed by Waddles are similar in many important respects, sufficiently similar to support the ruling of the trial judge that the offense perpetrated upon Mrs. B was relevant in the trial of Mrs. A under principles enunciated in Sections 445 and 446 of Title 15 of the Revised Statutes.

Numerous similarities in the two cases found in the evidence make the events which occurred at the residence of Mrs. B relevant to those which occurred at Mrs. A’s residence. These similarities establish that the same system and intent were employed by Waddles whose identity is shown by the fact that he left his fingerprints on the window when he gained entry into Mrs. A’s' residence to commit aggravated rape there.

The two offenses occurred exactly one week apart. Both occurred at approximately two o’clock on a Saturday morning. Both offenses were in residential neighborhoods in the southern part of Shreveport, less than five miles apart, a part of the city Waddles approached from Keithville, a suburb south of Shreveport.

In both instances Waddles made an unauthorized entry of an occupied residence through an unlocked window or door. At Mrs. A’s residence, Waddles tried the back door and found it to be locked. He then went to an unlocked window and gained entrance there. Mrs. B’s house was entered through an unlocked door. In each instance his intent was to commit aggravated rape. In each instance the residence he violated was occupied by mothers, alone with their children, with no adult males present. Each attack was launched while the victims lay asleep in their beds.

At Mrs. A’s residence her attacker removed the telephone receiver from its cradle in the den to frustrate any call for help by Mrs. A. When he departed Mrs. B’s residence Waddles ripped the telephone from the wall to prevent a call for help by Mrs. B.

While Mrs. A’s attacker was in her house, he took money from her purse. Waddles took money from Mrs. B’s purse while he was in her house.

Mrs. A’s attacker had a moustache, thick lips, and close cut hair. Waddles, Mrs. B’s attacker, had a moustache, thick lips and close cut hair.

Immediately after she was raped, Mrs. A advised police that the man who raped her was black. She then supplied the best description she could, considering the fact that her attacker was in a dark bedroom and her only opportunity to observe him was under the traumatic and highly emotional sexual encounter. At that time her attacker was choking and strangling her, threatening at the same time to kill her and her children. The Court’s dependence upon Mrs. A’s failure to identify Waddles more accurately under the circumstances in order to weaken the case against him is, to say the least, reaching out. It is a failure to accept the reality of the case contrary to the ruling of the trial judge and the findings of the jury.

I perceive that the real reason behind the majority reversal of this conviction lies in the “pragmatic terms” it expresses for what it conceives to be the first issue: “Should a death penalty for rape be affirmed, when the sole evidence connecting the accused with the rape is the unexplained presence of his fingerprints at the scene of the crime, although the victim cannot identify him?”

As this statement makes plain, this majority assumes the prerogative of passing upon the guilt or innocence of the accused. Either because of its predelictions against severe punishment for aggravated rape or its objection to the imposition of the death penalty, the majority usurps the jury function contrary to an express constitutional mandate to the contrary. For, in criminal matters, this Court’s appellate jurisdiction extends only to questions of law. La. Const, art. V, § 5 (1974).

The wisdom of constitutional enactments limiting this Court’s jurisdiction on appeal to questions of law only is not a proper basis for appellate review; nor is it a judicial function to question the wisdom of the law imposing the death penalty in the absence of constitutional infirmity.

By implying that the defendant’s fingerprints alone cannot establish his guilt, the Court adopts the view that the evidence is insufficient to warrant a conviction in this capital penalty case. In doing so, aside from disregarding the reliability of fingerprint evidence, the Court passes upon guilt or innocence of the accused and usurps the prerogative of the jury in violation of the Constitution.

I would affirm the conviction.

      . La.R.S. 15 :445 provides:
      “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

      . La.R.S. 15 :446 provides:
      “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged." (Italics ours.)

      . When arrested a week later, the present accused’s height was measured at six feet two inches and his weight at 200 pounds.

      . Although by exact measurement the A and B residences were 4.9 miles distant, under cross-examination an investigating police officer testified, transcript record, Volume III (testimony of April 24, 1975), pp. 27-28:
      “Q. They are not in the same neighborhood are they? I mean they are all south of 70th Street but it is not in the same neighborhood?
      “A. No, it is in a different community.”

      . Mrs. B. had a five-year old daughter; Mrs. A’s children were fifteen, eleven, and six.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Edward Lee FORD, Appellant.
    No. 57495.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      George Wear, Jr., Shotwell, Brown & Sperry, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Joe Rolfe White, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Ford was convicted of attempted armed robbery, La.R.S. 14:27, 64, and sentenced to twenty years at hard labor.

Upon his appeal, he makes seven assignments of error. The most serious of them relate to a denial of a change of venue (Assignment 2) and to the admission over objection of allegedly hearsay testimony (Assignment 6 and 7). Assignment 5, relating to the introduction of testimony taken at a preliminary examination, also deserves comment.

Assignment ,2 (Change of venue)

The ,offense charged occurred in November, 1974. The victim, Gerald Sum-merville, was killed in a subsequent robbery of his business place in March, 1975. Two days later another businessman of the community was similarly killed. The defendant was not in any manner connected with either of these latter two offenses. (In fact, at the time he had been for some time held in the parish jail.)

The motion for a change of venue essentially relies upon the alleged public prejudice created by these latter crimes and, especially, the publicity concerning Summer-ville’s death, which in two newspaper articles briefly included mention of the incident some four months later.

The trial was held in September, 1975 some ten months after the offense and some six months after the March killing of Summerville. After reviewing the evidence heard at the motion, the trial court’s per curiam concludes:

“The subject newspaper had limited coverage in the parish, and it appears probable that the articles in question did not make a lasting impression even on those who likely read them. No evidence was presented that the public had been inflamed against this defendant. Any knowledge acquired in this manner, about the defendant or the instant case, did not warrant a change of venue.”

The defendant points out, however, that during voir dire examination most of the jurors admitted to having read or heard of at least one of the incidents involving Summerville. However, the voir dire examination also satisfactorily shows no general prejudice or preconception of the defendant’s guilt, nor any association of the November incident (with which the defendant is charged) with the subsequent fatal robbing.

As the trial court held, the defendant did not bear his burden of proof that he was entitled to a change of venue because he could not obtain a fair and impartial trial in the parish of the offense. La.C.Cr.P. arts. 621, 622. See, e.g.: State v. Stewart, La., 325 So.2d 819 (1976); State v. Butler, 322 So.2d 189 (La.1975); State v. Dupuy, 319 So.2d 294 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Leichman, 286 So.2d 649 (La.1973); State v. Richmond, 278 So.2d 17 (La.1973).

The trial court correctly denied a change of venue.

Assignment 5 (Transcript or tape of preliminary examination)

On motion of the defendant, a preliminary examination was held in January 1975 to determine whether the state had probable cause to hold him pending trial. La.C. Cr.P. arts. 291-98. At this trial, the testimony of Summerville, the victim, was taken under oath, at which time he was also cross-examined by the defendant’s counsel.

As noted, Summerville was killed in March, 1975. Consequently, his testimony taken at the preliminary examination was offered in evidence at the September trial, as authorized by La.C.Cr.P. art. 295. Due to the unavailability of the witness by reason of his death, the Confrontation Clauses of the state and federal constitutions do not prevent admission of his sworn and cross-examined testimony at the preliminary examination. State v. Dotch, 298 So.2d 742 (La.1974); State v. Kaufman, 304 So.2d 300 (La.1974) at 304 (summary of principles); Barber v. Page, 390 U.S. 719, 721-22, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968); McCormick on Evidence, Section 252, see also Section 253 (2d ed., 1972).

Of course, as the defendant argues, when the testimony of the preliminary examination is offered at the trial, the party against whom it is offered may object to any particular question or answer as inadmissible for purposes of the merit-trial. The defendant’s failure to object at the time the testimony is taken at the preliminary examination does not waive his right to do so, since testimony such as hearsay may be admissible at the preliminary examination for its purposes (probable cause), although it is not admissible at the trial on the merits of guilt or innocence.

After hearing the defendant’s objections to some of the questions and answers, the trial court sustained some and overruled others. We find no error in its rulings and in its admission of the preliminary-examination testimony (less that to which objections were sustained) into evidence at the trial.

By this testimony, Summerville identified one of his would-be robbers as the defendant Ford, both by pointing him out at the pre-trial hearing and by name. Sum-merville stated that he had known Ford by face for about eight years, although not by name. Immediately following the incident, he told the police of his acquaintance and described him, and then picked him out immediately from several photographs shown him by the police.

The defendant nevertheless claims that admission of the preliminary-examination hearing was erroneous for an additional technical reason. After the trial court’s rulings settled which portions of the preliminary-examination testimony were admissible and which were not, the defendant objected to introduction and reading of the transcript (which he had been furnished long before the trial). The ground was that, although the court reporter had recorded the testimony, an assistant court reporter had transcribed (typed) it.

The basis for this objection is the requirement of La.C.Cr.P. art. 294 that: “A transcript of the testimony [at the preliminary examination] . . . shall be made by the court or under its direction and signed or certified by the person taking the testimony.”

As we read the article, it does not require that the person taking the testimony actually transcribe it personally, but only that such person sign and certify it as true and correct. (In many districts of the state, the court reporter does not actually type the transcript of his notes or recorda-tions, but rather has them typed under his supervision; after correcting any error, the reporter signs and certifies the transcript. This is sufficient compliance with the article.)

In this case, the court reporter signed and certified the transcript of the preliminary examination, which had been typed from her recording by the deputy court reporter. The objection should have been overruled. Nevertheless, out of an excess of caution, the trial court sustained the objection.

The state then offered, instead, the taped testimony of Summerville from which the transcript had been made, less the objection-sustained portions of it.

The defendant objected to receipt of the taped testimony (i. e., the sound-recorded tape), on the ground that La.C.Cr.P. art. 295 authorizes introduction of a transcript, i.e., a written copy, and not of a sound copy of the testimony taken at the preliminary examination.

We do not read the code article so restrictively. When the preliminary-hearing evidence is admissible at the merit-trial, the “transcript” is admissible under Article 295, not because it is typed on paper, but rather to prove its contents. We do not believe that the article contemplates that, upon penalty of reversal, in no circumstance may the preliminary-hearing evidence be produced before the jury except by reading it from a typed transcript, nor that the article prohibits under any circumstances the jury from hearing the same evidence by any other method, such as through audio or video recordation. In any event, however, under the circumstances shown, we find no prejudice and therefore no merit to this objection.

In summary, Assignment 5 does not reflect reversible error.

Assignment ó and 7 (Hearsay identification testimony)

These assignments relate to the admissibility of testimony that the deceased victim (Summerville) of the robbery had identified the defendant Ford as his would-be robber. Prior to Summerville’s deposition (preliminary-examination) testimony had been introduced, by which he had already so identified Ford. The defendant objected to this subsequent testimony as inadmissible hearsay.

The objected-to testimony consisted of the testimony of police officers of Sum-merville’s identification in two particulars: (a) his selection of the defendant’s picture from the photographs submitted to him (Assignment 6) ; and (b) the officers’ testimony as to the defendant’s oral and physical identification (by pointing) of the defendant Ford as one of his robbers, when within two hours of the robbery Ford was brought to him by the police officers (Assignment 7).

In Louisiana criminal trials, hearsay is inadmissible except under recognized exceptions. La.R.S. IS :434. “The hearsay rule excludes out of court assertions offered to prove the matter asserted because they are not made under oath and their veracity cannot be tested by cross examination.” Pugh, Louisiana Evidence Law 388-89 (1974). The traditional exclusion of hearsay in Anglo-American jury trials is based upon historic considerations of unreliability and of potential unfairness to an accused to permit into evidence damaging out-of-court statements which cannot be tested as to their basis in fact, or by cross-examination of the out-of-court de-clarant. Pugh, 388-432.

(1)

The trial court incorrectly ruled that the (a) testimony, as a physical action (pointing to and picking out the defendant’s pictures), was not hearsay because not an oral communication.

The assertive action of Summerville, though not oral, was a communication to the officers that the photograph before him was one of his robber. It was introduced for the purpose of proving the truth of the matter so asserted, i.e., that the defendant Ford was his robber. It was therefore hearsay, as an assertive communication introduced for the truth of the assertion thereby made.

See: State v. Smith, 285 So.2d 240, 246 (La.1973); State v. Maiden, 258 La. 417, 246 So.2d 810 (1971); State v. Garon, 158 La. 1014, 105 So. 47 (1925); Pugh, Louisiana Evidence Law 412, 414 (1974); McCormick on Evidence, Section 250 (2d ed., 1972).

(2)

Likewise, the trial court was in error in its reason for holding admissible the (b) testimony i.e., that Summerville had orally and physically (by pointing) identified Ford as his robber. The trial court held that such identification, when made in Ford’s presence without objection by him, was a tacit admission by the accused of the truth of the statement and conduct made in his presence.

However, although inculpatory statements made by others in the presence of an accused may be admissible for such reason, State v. Sharbino, 194 La. 709, 194 So. 756, 759-760 (1940), this rule does not apply when the defendant is in legal custody. State v. Hayden, 243 La. 793, 147 So.2d 392 (1962). As we there stated, 147 So.2d 393-394: ‘Mere silence, while a party is held in custody under a criminal charge, affords no inference whatever of acquiescence in statements of others made in his presence. He has the undoubted right to keep silence as to the crime with which he is charged, and is not called upon to reply to or contradict such statements. Under such circumstances, it is held that the statements so made are not admissible against the prisoner, because they do not even tend to support the hypothesis of acquiescence.’ ”

(3)

Thus, in overlooking these decisions and these will-settled principles, we were in error in State v. St. Amand, 274 So.2d 179, 190 (La.1973), critically noted on this ground, 34 La.Law Review 455 (1974), in holding that evidence of this nature is not hearsay and therefore not subject to objection as hearsay.

However, even if the testimony is inadmissible hearsay, under the circumstances here shown its admission does not constitute reversible error. It was merely cumulative and corroborative of the testimony of the witness himself, whose testimony at the preliminary examination was introduced into evidence due to his nonavailability to testify at the trial because of his death. When hearsay identification testimony is merely corroborative of the witnesses’ prior direct evidence of his own identification of the accused, we similarly held admission of the hearsay harmless in State v. Smith, 285 So.2d 240 (La.1973) and State v. Maiden, 258 La. 417, 246 So.2d 810 (1971).

In holding harmless the testimony of the witness as to the visual identification of the accused by the victim, we are to some extent influenced by developments in modern evidence law, which tend under present circumstances to hold the testimony admissible, although for differing reasons. For, while some jurisdictions still hold that testimony as to an out-of-court visual identification made by another in the witness’s presence is inadmissible hearsay under almost all circumstances, by far the greater number of jurisdictions now permit admission of such testimony, at least when offered in corroboration of direct testimony of a trial witness which identifies the accused. See: Annotation, Admissibility of Evidence as to Extrajudicial Identification, 71 ALR 2d 449 (1960), and especially Later Case Service (through 1976); 1 Wharton’s Criminal Evidence, Section 187 (13th ed., Torcia, ed.; 1972).

As noted in McCormick on Evidence, Section 251, p. 603 (2d ed., 1972): “When A testifies that on a prior occasion B pointed to the accused and said, ‘That’s the man who robbed me,’ the testimony is clearly hearsay. If, however, B is present in court and available for cross-examination, a case within the present section is presented. Similarly if B has himself testified to the prior identification. Admissibility of the prior identification in all these situations has the support without recognition of the presence of a hearsay problem. Recent statutes and rules also favor admissibility. Justification is found in the unsatisfactory nature of courtroom identification and the safeguards which now surround staged out-of-court identifications.”

The above-cited ALR annotation comprehensively cites and analyzes the evolving jurisprudence in the area. The annotation summarizes, 71 ALR 452-453:

“The question of the admissibility of evidence as to an extrajudicial identification of the defendant in a criminal prosecution arises in a variety of factual situations, and the determination thereof may involve the consideration of various differentiating factors. The conclusion may depend, inter alia, upon whether the testimony offered is that of the identifier or that of a third person who heard or observed the identification; upon whether the identifier testified or was available as a witness at the trial; upon whether the identifying act or statement was in the presence of the accused; upon the means by which or the manner in which the identification was made; and upon the purpose for which the evidence is offered, whether as original or substantive proof of the identity of the accused, as corroborative of the testimony of the identifying witness, or as in rebuttal of evidence or statements tending or intended to impeach or discredit the testimony of the witness as to the identity of the defendant. Furthermore, there are divergent views or theories as to the grounds of admission or exclusion of the evidence, particularly in respect of the application, in this connection, of the rules relating to hearsay evidence, and as to the effect of particular factors or circumstances.

“The review of the decisions discloses that the law of the subject has in several jurisdictions been in process of development up until comparatively recent times, and that in some it is still in a more or less unsettled condition. As appears from the ensuing discussion and the review of the cases individually, the rule now prevailing in most jurisdictions in which the question has been fully considered, subject to the qualifications and exceptions noted, is that the prior identification may be shown by the testimony of the identifier or identifying witness, or by the testimony of the third person to whom or in whose presence the identification was made, where the identifier has testified or is present and available for cross-examination at the trial, not as original, independent, or substantive proof of the identity of the defendant as the guilty party, but in corroboration of the testimony of the identifying witness, at the trial, as to the identity of the defendant. As above indicated, however, a contrary rule obtains in some jurisdictions as to some or all of the propositions stated, as hereinafter shown.”

Other Assignments

The other assignments do not present arguable merit and will not be discussed: Assignment 1 relates to the denial of a directed verdict; Assignment 3 (relating to the denial of a motion to suppress a pistol and bullets, seized in plain view incident to a lawful arrest) was expressly abandoned at the oral argument; and Assignment 4 relates to an (not well-founded) objection that the chain of custody for introduction of the pistol was inadequate.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

SUMMERS, J., concurs in result only.

MARCUS, J., concurs.

      . The decision to some extent relies upon State v. Wilherson, 261 La. 342, 259 So.2d 871, 874—75 (1972). Wilherson indicated that such testimony might not be hearsay; but it essentially affirmed the admission of the evidence on the ground that, if hearsay, the evidence was harmless. The Wilherson intimation of the non-hearsay character of the testi-monly received scholarly criticism as erroneous. Pugh, Louisiana Evidence Law 429 (1974).

      . There is no showing, for instance, that the direct testimony by Summerville introduced at the trial (his out-of-court testimony taken under cross-examination at the preliminary examination) had been attacked, so as to permit proof of prior statements or assertions made by him at an unsuspicious time in order to corroborate his assailed trial testimony. La.R.S. 15:496; State v. Watson, 159 La. 779, 785-86, 106 So. 302 (1925); State v. Wagoner, 39 La.Ann. 919, 921-23, 3 So. 119 (1887). See 4 Wigmore on Evidence, Section 1130 (Chadbourn Rev., 1972).

      . The annotation cites the following articles and commentaries: 36 Minn.L.Rev. 530 (1952) ; 27 NYU L.Rev. 367 (1952) ; 30 Rocky Mt.L.Rev. 332 (1958). See also: Comment, The Use of Prior Identification Evidence in Criminal Trials and on the Federal Rules of Evidence, 66 J. Criminal Law and Criminology 240 (1975) ; Note, Hearsay, Witnesses Prior Statements and Criminal Justice in Illinois, 1974 University of Illinois Law Forum 675 (1974).
      For a decision upholding the classical view of inadmissibility, see Trimble v. State, Ark., 302 S.W.2d 83 (1957). For a thoughtful decision permitting such identification testimony under limited conditions to be admissible as exception to the hearsay rule see People v. Gould, 54 Cal.2d 621, 354 P.2d 865 (1960) (by Traynor, J.). Yet a third approach is to except from the hearsay rule this type of evidence. See Federal Rules of Evidence, Rule 801(d) :l(c) (1975) which provides: “A statement is not hearsay if — (1) Prior statement by a witness. The declarant [of the out-of-court statement] testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (C) one of identification of a person made after perceiving him.


author: MARCUS, Justice. DIXON, Justice DENNIS, Justice

text:
    STATE of Louisiana v. Christopher KENNER, Jr.
    No. 57457.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      Gary L. Newport, Berwick, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Walter J. Senette, Jr., Bernard E. Boudreaux, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

Christopher Kenner, Jr. was indicted by the grand jury for the Parish of St. Mary for the crime of attempted aggravated rape. La.R.S. 14:27; La.R.S. 14:42. After trial by jury, he was found guilty as charged and was subsequently sentenced to serve eighteen years at hard labor. On appeal, he relies on ten assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 2 AND 6

These assignments of error relate to the trial judge’s denial of two motions for a continuance, one filed by defendant himself and the other by his court-appointed counsel. The motions were filed on the morning of trial. Defendant contends that he was not afforded sufficient time to consult with his counsel prior to trial and that his counsel did not have the opportunity to thoroughly review the case, interview witnesses, and properly prepare a defense in this matter.

Defendant was indicted on February 13, 1975 (four days after his arrest). Initially, defendant requested the court not to appoint counsel for him as he desired to retain his own attorney. However, on March 21, 1975, pursuant to defendant’s request for the appointment of counsel, the court appointed Peter P. Guarisco to represent him. On March 27, defendant was arraigned 'and pleaded not guilty. At arraignment, trial was fixed for June 9, 1975, As a result of parole revocation, defendant was transferred to the state penitentiary at Angola on April 11, 1975; he was returned to the parish jail on June 3, 1975. On June 9, 1975, the trial was continued until the next day (June 10) at which time defendant and his counsel filed separate motions for a continuance.

Defendant avers in his motion for continuance that he had no opportunity to discuss the merits of his defense or the names and addresses of possible witnesses with his attorney as a result of his transfer to Angola. The motion further alleges that his attorney had filed no pretrial motions in his behalf. Defense counsel’s motion for continuance sets out essentially the same allegations, claiming that he had conferred with his client on only two occasions prior to trial. The motion further avers that, although defendant had requested him to file several pretrial motions and had furnished him with the names of several prospective witnesses for his defense, he had not had time to prepare and file the motions or to locate the witnesses. The reason asserted for his lack of time to prepare for trial was his absence from the country for most of the period between arraignment and trial. It is claimed that he had only thirty-five working days during this period in which to prepare.

At the hearing held on the motions for a continuance, defendant testified that his transfer to Angola prevented him from conferring with his attorney. He further stated that his attorney had failed to file any pretrial motions in his behalf. Defendant’s motion was denied. The motion for continuance filed by counsel was then called. Defense counsel offered no evidence in support thereof.

An application for a continuance must allege specifically the grounds upon which it is based. La.Code Crim.P. art. 707. Under the provisions of article 709 of the Code of Criminal Procedure:

A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

A motion for continuance may be granted, in the discretion of the court, in any case if there is good ground therefor. La.Code Crim.P. art. 712.

The grounds alleged in the motions for continuance are not supported by the record. Although it is alleged that there was inadequate time to prepare a defense, no showing was made that this was in fact the case. No continuance was sought until June 10, 1975, the morning of trial. Even excluding the time defense counsel claims he was out of the country, he admits that he had thirty-five working days in which to prepare for trial. No request was made for defendant’s return from Angola nor did defense counsel make any attempt to contact or visit defendant at .Angola. Moreover, defense counsel had ample time to consult with defendant prior to his departure and after his return from Angola. Defense counsel admitted that he did in fact consult with defendant on two occasions prior to trial. We do not find that there was inadequate time to prepare a defense under the facts here presented.

While it is urged that a continuance was necessary in order to have time to secure witnesses, there was only a general allegation to this effect. The court was not furnished with a list of witnesses, nor did the motion state the facts to which they would testify, showing the materiality of their testimony and the necessity of their presence at trial. There was also no showing that a diligent effort had been made to procure attendance of the absent witnesses or that they would be available in the event the trial was deferred. Hence, there was no compliance with provisions of article 709 of the Code of Criminal Procedure. Likewise, the nature of the pretrial motions which defendant allegedly requested his counsel to file was not given. Under these circumstances, we are unable to say that the trial court abused its discretion in denying the motions for a continuance. No showing was made of any injustice or unfairness which resulted from the denial of the motions. Assignments of Error Nos. 2 and 6 are without merit.

ASSIGNMENT OF ERROR NO. 3

During voir dire examination of a prospective juror (Alton Anderson), the district attorney stated:

What we are going to do here, Mr. Anderson, is the State of Louisiana is going to put on certain evidence and perhaps the defendant, too; I don’t know. What the jury’s job is really is to apply the facts that are testified to, to apply those facts to the law as I just read it to you. Do you feel like you would be able to do that, sir?

Although no objection or motion for mistrial was made at the time of occurrence, defendant urges on appeal that he was effectively deprived of the presumption of innocence by the prosecutor’s remarks and as such was denied due process of law. He further contends that the trial judge abused his discretion in not granting a mistrial under article 775(3) of the Code of Criminal Procedure.

An error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.Code Crim.P. art. 841, as amended, La.Acts 1974, No. 297, § 1. No objection was made here. Also, defendant made no motion for mistrial as required by article 770 of the Code of Criminal Procedure. Moreover, the alleged error is not a legal defect as contemplated by article 775(3) of the Code of Criminal Procedure. In any event, the remarks were not a comment on the failure of defendant to take the stand, but only a statement that defendant might or might not present evidence. It has been held by this court that a prosecutor’s statement that “the evidence . . . was uncontra-dicted and uncontroverted” was not an impermissible comment on the accused’s failure to take the stand. State v. Singleton, 321 So.2d 509 (La.1975). Hence, we do not find that the prosecutor’s remarks adversely affected defendant’s due process rights in any way. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

During the impanelling of the jury, defense counsel asked the prospective jurors: “Would it influence your decision or your verdict in this case if the defendant did not take the stand or did nothing in his defense — did not testify in his defense?” At this point, the state requested the court to instruct the jury panel as to the law on the right of defendant to remain silent. The instruction was as follows:

Ladies and gentlemen, under the Constitution of the United States and State of Louisiana, a person charged with a crime has the absolute right to remain silent, he need not take the stand and testify in his own behalf if he chooses not to and he need not give any reason or explanation for his failure to do so. He has the absolute right to remain silent and cannot be compelled to give any evidence against himself. If he chooses to exercise that right, the Court would instruct the jury that they cannot take that fact alone into consideration as any evidence of his guilt as to the charge. The defendant has the right to remain silent, he has the right not to give evidence against himself. Should he choose to exercise that right, the Jury cannot consider that fact alone as any indication of his guilt of these charges. The Court will so instruct the jury at the conclusion of the trial.
Now, Mr. Guarisco, if you will repeat your question, they may answer. (Emphasis added.)

Defendant did not object or move for a mistrial. On appeal, he asserts that the use of the underscored language created an impression in the minds of the jury that defendant’s right to remain silent can be used in conjunction with other evidence. It thus undermines the presumption of innocence.

Initially, defendant did not object or move for a mistrial at the time of the occurrence of the alleged error. Hence, nothing is presented for our review. In any event, there is no merit in defendant’s contention. Defendant’s interpretation of the language complained of is strained, unrealistic and taken out of context. We do not find that it leaves the impression asserted. Any doubt to the contrary is removed by the instruction as a whole and the final charge to the jury which recites:

A defendant in a criminal case cannot be compelled to take the witness stand and to testify. He has the absolute right not to testify, and the jury must not draw a presumption of guilt or any inference against the defendant because he did not testify. The defendant need not prove his innocence; he need not prove anything.

Assignment of Error No. 4 is without substance.

ASSIGNMENTS OF ERROR NOS. 5 AND 13

Defendant first contends that the district attorney attempted to present evidence in his opening statement which went beyond the scope set forth in article 766 of the Code of Criminal Procedure. He further complains that the district attorney attempted to argue the case before the jury during the course of his opening statement.

From our examination of the opening statement, we find no merit in this contention. The district attorney was merely detailing the testimony and explaining the evidence by which the state expected to prove its case as is authorized by law. La.Code Crim.P. art. 766. There was no attempt to argue the facts or the law.

Defendant also contends that the district attorney referred in his opening statement to the fact that the victim felt a sharp object in her back and was told by the perpetrator the nature of this object. This is claimed to be a reference to evidence of another crime, i.e., armed robbery, in violation of State v. Prieur, 277 So.2d 126 (La.1973). Defendant was charged with the crime of attempted aggravated rape. The statute defining aggravated rape (R.S. 14:42) provides that the crime is committed where the victim resists the act to the utmost, but her resistance is overcome by force or where she is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution. Attempt (R.S. 14:27) covers any person who, having a specific intent to commit a crime, does or omits an act for the purpose of tending directly toward the accomplishment of his object. An attempt is a separate but lesser grade of the intended crime. Hence, presentation of evidence as to the force employed by the perpetrator on the victim is relevant to the material issue. Defendant’s objection to the district attorney’s reference in his opening statement to a sharp object is without merit.

Assignments of Error Nos. S and 13 are without substance.

ASSIGNMENTS OF ERROR NOS. 10 AND 11

These assignments relate to objections made during the testimony of' two state witnesses, Detective Dossett, the officer who investigated the crime and later arrested defendant, and John Rankin, the witness who saw defendant running down the street near the scene of the crime after its commission.

During the direct examination of Detective Dossett, he testified that he had arrested defendant at his residence. He was then asked if, while at defendant’s home, he had looked at defendant’s vehicle. The witness replied that he did. He was then asked to describe the vehicle. He answered: “It was a black vinyl over green.” Defendant objected on the ground that a proper foundation had not been laid to show that this officer knew which vehicle belonged to defendant. The court then allowed the prosecutor to ask the witness if he knew that particular vehicle belonged to defendant. The witness answered that the defendant when arrested stated that it was in fact his vehicle. The witness additionally testified that the computer showed the vehicle was registered in defendant’s name at the time.

While the original question asked this witness might have incorrectly assumed a fact not previously established, i.e., ownership of the vehicle, the error was cured by the testimony that followed. Moreover, no prejudice resulted from such questioning.

Objection was made to the testimony of John Rankin that he had seen a man running down the sidewalk from the 900 block of Front Street toward St. Clair Street at about the same time as the commission of the crime. Defendant objected on the ground that there was nothing to connect this testimony to the scene of the crime. The objection was correctly overruled, as it had been established by previous testimony that the victim had been attacked in the vicinity of her residence located at 922 Front Street. In brief filed in this court, it is urged that the district attorney was allowed to propound leading questions to the witnesses. The record does not support this contention. We find no error in the rulings of the trial judge. Assignments of Error Nos. 10 and 11 are without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant objected to the introduction into evidence of a photographic array displayed to the victim on the day following the crime and from which she identified defendant. Defendant contends that the procedure employed was impermissibly suggestive and as such also affected the victim’s in-court identification of defendant.

We find no substance to this allegation. The description of the attacker was given by the victim to Detective Dossett on the evening of the crime. Dossett selected photographs of six persons with similar physical characteristics matching the description given to him by the victim. These photographs, which included one of the defendant, were presented to the victim on the next day. It was from this group of photographs that the victim selected defendant. We have reviewed the photographic display included in the record and find that it contains pictures of six men with similar physical characteristics.

Even assuming arguendo that the out-of-court identification was tainted, it is settled that the in-court identification does not violate the accused’s due process rights where it has a source independent of the out-of-court identification. State v. Price, 325 So.2d 780 (La.1976); State v. Newman, 283 So.2d 756 (La.1973).

In the instant case, the victim testified that defendant knocked on her door on the afternoon in question. She opened the door about four inches, keeping the chain fastened. She observed defendant face to face as he stood in the well-lighted hallway outside her apartment. Defendant inquired about a vacant apartment but was informed by the victim that she knew nothing about such an apartment. The victim then closed the door. About an hour later, the victim left her home and went to a store on Front Street. Finding the store closed, she proceeded to walk back to her apartment. Just prior to reaching home, she was grabbed by a man who placed a towel over her face and dragged her into an alley where he attempted to rape her. He also demanded her wallet which she handed over to him. Because of her screams, two men in the area came to her aid, and her attacker fled. The victim testified that she clearly saw her attacker’s face when she gave him her wallet and as he ran away. She immediately recognized him as the man who had earlier that afternoon knocked at her apartment door.

The in-court identification clearly had a source independent of the out-of-court identification. .

Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant asserts that the trial judge erred in denying his motion for a new trial. He makes two arguments in support of this contention. First, two witnesses, who are presently available, would establish that defendant was elsewhere at the time the attack was perpetrated. Secondly, trial counsel was ineffective which prevented defendant from obtaining a fair trial.

At the hearing on the motion for a new trial, no evidence was offered other than the testimony of defendant and his counsel. Argument of defense counsel was also presented to the court. Defendant’s basic contention in this motion is the same as previously urged in his motion for a continuance, i.e.j he was not afforded sufficient time to consult with his counsel prior to trial and that his counsel did not have the opportunity to thoroughly review the case, file pretrial motions, locate and interview witnesses and properly prepare a defense.

The trial judge denied the motion stating that no showing was made that the witnesses alleged to be absent at the time of trial were presently available or as to the facts to which they would testify. He also found that defense counsel had ample time to communicate with his client before and after his return from Angola. He noted that defense counsel did not either move to have defendant returned from Angola to-assist in preparation of his case, which motion would have been granted, or go to Angola in order to confer with him. He further observed that the motion for a continuance was not filed until the day of trial. We agree with the findings of the trial judge.

Additionally, we find no merit to defendant’s contention that defense counsel was ineffective at trial. A review of the record reveals that he examined prospective jurors, making objections and exhausting all peremptory challenges. At trial, the state witnesses were fully cross-examined and appropriate objections were made, many of which were sustained. Those objections overruled were available for designation as alleged errors to be urged on appeal. Two witnesses (defendant’s mother and sister) were presented to establish an alibi for defendant at the time of the commission of the crime. It should be observed that the-trial of this matter was relatively simple. The state produced four witnesses: the victim, her husband, an eyewitness who saw defendant running away from the scene of the crime and obtained his license number as he left in his speeding car, and the officer who investigated the case and arrested defendant. The only significant claims as to defense counsel’s ineffectiveness at trial were his failure to file pretrial motions and to make a closing argument. The pretrial motions that defendant claims he requested defense counsel to file are: motion to suppress, re-cuse the judge and change of venue. No showing was made as to the possible merit of any of these motions or that any prejudice resulted from the failure of defense counsel to file same. Finally, we are unable to say under the facts of this case that the failure of counsel to make a closing argument deprived defendant of effective assistance of counsel.

We do not find that the trial judge abused his discretion in denying defendant’s motion for a new trial. Accordingly, this assignment of error is without substance.

DECREE

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

DIXON, J., concurs with reasons.

DENNIS, J., dissents with reasons.

DIXON, Justice

(concurring).

I concur in the disposition of Assignment No. 14. The majority opinion finds no merit in defendant’s motion for a new trial in which he alleges he was deprived of his Sixth Amendment right to the effective assistance of counsel.

At the beginning of trial counsel and defendant requested a continuance to provide time to prepare the case. The request was denied, and the following colloquy occurred :

“BY THE DEFENDANT: I would also like to put on the record that Mr. Peter Guarisco denied to file any motions for me. He denied to file any motions.
BY THE COURT: Now, let me tell you something right now, Kenner. You are not going to defend yourself in this trial, no.
BY THE DEFENDANT: Yes, sir.
BY THE COURT: I am not going to permit you to defend yourself.
BY THE DEFENDANT: Yes, sir. I’ve got to defend myself.
BY THE COURT: No, you are not.
BY THE DEFENDANT: If I’m not, who’s going to defend me?
BY THE COURT: Mr. Guarisco is your lawyer.
BY THE DEFENDANT: No, sir. He’s not qualified.
BY THE COURT: If you interrupt me one more time when I am talking, I am goint to have you bound and gagged.”
“BY THE COURT: Is the Defense ready for trial?
BY MR. GUARISCO: No. The Defense is not ready for trial.
BY THE COURT: Why not?
BY MR. GUARISCO: The Defense Attorney has not had sufficient time to prepare a defense.
BY THE COURT: Except for your reservation of rights under your motion for a continuance, are you ready for trial?
BY MR. GUARISCO: No.
BY THE COURT: For what other reason are you not ready for trial ?
BY MR. GUARISCO: I have not prepared a defense.
BY THE COURT: Well, that is your fault and you and your client shall suffer the consequences, if consequences there be. Call the jury back in please.”

After the State’s closing argument the following occurred:

“BY MR. GUARISCO: The Defense has no closing argument.
BY THE DEFENDANT: Defense do have a closing argument. Say anything. Say something. Put it on the record.
BY THE COURT: Would you like a short recess?
BY MR. GUARISCO: No, I would not.
BY THE COURT: You have no closing argument ?
BY MR. GUARISCO: No, I have none.”

Defense counsel was appointed March 21, 1975, and arraignment was held March 27, 1975. On April 11, 1975 defendant was sent to Angola for violation of parole. From May 2, 1975 until May 29, 1975 defendant’s appointed counsel was out of the United States attending a meeting of the Louisiana Bar Association. Defendant was returned from Angola June 3, 1975 and the trial commenced June .10, 1975. Thus, from the time of arraignment until trial defendant’s court appointed attorney was available to him only nineteen days.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held the Sixth Amendment right to counsel includes the right of a defendant to represent himself. This is what defendant in the case before us desired to do.

The majority makes no reference to defendant’s timely request to represent himself. But defendant has not expressly included this in his motion for a new trial, and it is not an error “discoverable by a mere inspection of the pleadings and proceedings.” C.Cr.P. 920. Thus, State procedure prevents consideration of this contention on appeal.

A state procedural default cannot prevent raising a federal constitutional right unless defendant has “knowingly waived” the right. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1964). Defendant’s proper remedy for this alleged deprivation of right now lies in habeas corpus.

DENNIS, Justice

(dissenting).

Under the facts of this case as outlined by Mr. Justice Dixon in his concurring opinion, I think that the trial court committed grave error in failing to grant defendant’s motion for a new trial. La.C. Cr.P. art. 851(5) provides:

“The court, on motion of the defendant, shall grant a new trial whenever:
* * * * * *
“(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of ’ strict legal right.”

Defense counsel’s unpreparedness for the trial and apparent lack of interest in defendant’s cause demanded that a new trial be granted in the interest of justice. The trial court’s failure to grant the motion was an abuse of discretion which amounted to an error of law, subject to this Court’s review. State v. Randolph, 275 So.2d 174 (La.1973).

I respectfully dissent.

      . A mistrial may be ordered under article 775 (3) when:
      There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.

      . Article 766 provides:
      The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Thomas Earl PEARSON.
    No. 57444.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      Emile M. Weber, Weber & Weber, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On December 14, 1971 an elderly diamond merchant was robbed at gunpoint of a quantity of diamonds in Baton Rouge, Louisiana. Sometime thereafter defendant Thomas Earl Pearson was charged with armed robbery. Allegedly defendant Pearson hired one George Bursavich to commit the crime and thereafter received the proceeds of the robbery. Pearson was tried, convicted, and sentenced to serve twenty-five years at hard labor. He then appealed to this Court. We reversed his conviction and ordered a new trial, finding merit in certain bills of exceptions relating to the use of evidence of another offense by the state. See State v. Pearson, 296 So. 316 (La.1974). Defendant Pearson was thereafter tried anew. He was convicted a second time and sentenced to be confined in the custody of the Department of Corrections for twenty-five years with credit for time served but without benefit of parole, probation or commutation of sentence. On this appeal, defendant relies upon the following assignments of error for reversal of his conviction and sentence:

"ASSIGNMENT OF ERROR #1:

The court erred in allowing the District Attorney to read into evidence the testimony of Bart Bursavich from a previous hearing. The witness was present in court and available for testifying. Upon his refusal to testify, the court ruled that he was unavailable. The court equated refusal with unavailability. There were other remedies the court could have used to obtain the testimony of the witness and in failing to do so the court committed error.

“ASSIGNMENT OF ERROR #2:

The District Attorney, in his closing argument, alluded to the fact that the accused was not present in court and made statements to the effect that his non-presence indicated his guilt.”

ASSIGNMENT OF ERROR NO. 1.

At the outset of the trial, following the defendant’s waiver of opening statement, the prosecutor had the judge retire the jury. He thereupon called Bursavich, the person whose testimony had largely been responsible for the defendant’s conviction at the first trial. He questioned the witness outside of the presence of the jury. Bursavich, while admitting that he had given sworn testimony at the first trial in 1973, insisted that he would not again testify notwithstanding the threat of incarceration for contempt. [He was already serving twenty years in a federal penitentiary]. The trial judge thereupon ruled that the witness was unavailable and that therefore the transcript of his testimony at the first trial would be read to the jury, in lieu of the appearance and testimony of the witness. Defense counsel did not object to the witness’ brief testimony outside the presence of the jury, nor to the witness’ not having so testified in the presence of the jury. He did, however, object to the introduction of the previous trial testimony by a reading of the transcript of the testimony to the jury. To the court’s refusal to sustain his objection and to the court’s allowing a reading of the witness’ prior testimony, defendant makes his first assignment of error. He alleges that the witness was present in court and available for testifying; that the court mistakenly equated the witness’ refusal to testify with unavailability, that there were other remedies the court could have used to obtain the testimony of the witness; that in failing to do so the court committed error.

When the state introduces the transcript of testimony given by a witness at a prior trial, an appellate court must determine whether the introduction of that evidence violated the accused’s right to confront the witnesses against him, a right guaranteed by our federal and state constitutions. U.S.Const, amend. VI; La. Const, art. I, § 16 (1974). One reason that this right is so fundamental to our law is that it guarantees that the witnesses who participate in the deprivation of a person’s freedom present themselves in person before the jury so that the jurors can observe their demeanor and decide whether they should be believed. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); State v. Kaufman, 304 So.2d 300 (La.1974); State v. Sam, 283 So.2d 81 (La.1973); McCormick on Evidence, § 252 (Cleary ed. 1972). In addition to other standards which are not at issue here, the testimony of a witness from a previous judicial proceeding against the same defendant in the same case can be admitted in transcript form only when the state has established that the witness himself is “unavailable to testify.” Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed. 2d 255 (1968); State v. Moore, 305 So.2d 532 (La.1975); State v. Kaufman, supra.

Although a witness who is “unavailable” is usually physically distant from the trial, there are instances in which a witness who is physically present at the trial has been held to be unavailable to testify. We have upheld a trial judge’s determination that a witness who took the fifth amendment was unavailable to testify. State v. Dotch, 298 So.2d 742 (La.1974). And we have recently held that a witness who refused to testify even after being declared, or held, in contempt, was unavailable. State v. Ghoram, 328 So.2d 91 (La.1976). We find no real distinction between the case under consideration and State v. Ghoram. In Ghoram the witness was actually placed in contempt of court. In the case now before us, placing the witness in contempt would have been a vain act, since the witness was in the custody of federal marshals mandated to return him to federal prison to complete serving a twenty year sentence. Consequently, we find that the trial judge did not err when he ruled that Bart Bur-savich was unavailable to testify and when he thereafter admitted into evidence his testimony at defendant’s prior trial.

ASSIGNMENT OF ERROR NO. 2.

Defendant here urges that the trial court erred in failing to grant a mistrial or in failing to admonish the jury following an allegedly prejudicial remark made by the prosecutor in closing argument.

The background facts of this argument follow. Defendant’s trial began on March 24, 1975 and on that day the jury was chosen and the state began to put on its case. At the end of that day, court was adjourned for the night and the accused was released on his bond. Defendant then mysteriously disappeared and did not reappear during the succeeding three days of his trial. Efforts to locate him proved fruitless. In his absence, the jury convicted him. He reappeared for sentencing some five months later.

The defendant complains to the Court that in his closing argument the prosecutor repeatedly referred to the fact that defendant was not present during most of his trial and that his absence indicated his guilt. Defendant especially focuses on the following comment:

“I want to tell you about another law that says when evidence is under the control of the party, of a person, and that evidence was not produced by that person or that party, the presumption is that it was not produced by that person or that party because it would not have aided or helped that person or that party. Now, he jumps up and down here and screams — I mean, the only thing that belies the sincerity of his argument here is that, you know, his client — he and his client must not be thinking along the same lines, because his client ain’t here, you know, to fortify what he claims. He’s not even here — present— his presence is not even here. His very absence belies the legitimacy of the argument of counsel . . ..” (emphasis added)

Defendant’s argument that the prosecutor’s comment was an indirect reference to the fact that the defendant did not take the stand is not totally without merit. We think it more likely, however, that the jury understood the words to allude to the defendant’s failure to attend and remain in court “to fortify” defense counsel’s position in closing argument (a position, presumably, that defendant was innocent) rather than to defendant’s failure to take the stand. However, we do not find it necessary to decide this issue, because defense counsel did not properly preserve the issue for our review.

After the prosecutor’s remark, the defense counsel interrupted to say:

“If Your Honor please, I move for another assignment of error. He’s absolutely violating the law when he makes such allegations. I object and ask that the Court rule on it . . . . ”

Counsel did not ask for a mistrial, which is the proper remedy in a case where the prosecutor has referred to the defendant’s failure to testify. C.Cr.P. art. 770. Nor did he request that the trial judge admonish the jury to disregard the remark. C.Cr.P. art. 771. Nor did he state for the court the grounds of his objection, other than that the prosecutor had violated the law.

Therefore, we do not feel that there is properly before us any ruling or attendant objection relative to the purported prosecution reference to defendant’s failure to testify.

Accordingly, we affirm the conviction and sentence.

      . For example, the defendant must have been represented by the earlier hearing; the witness must have testified under oath; must have cross-examined the witness, or waived that right. Kaufman, supra.

      . The author, who concurred in Ghoram on this point, still has doubt about the position of this Court on this aspect of the confrontation issue. However, the author feels constrained to follow the majority’s Ghoram decision, while remaining aware that the federal courts or a majority of this Court may at a later date differ with Ghoram on this issue.


author: DIXON, Justice.

text:
    STATE of Louisiana v. John Edward RALPH.
    No. 57462.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      James S. Gravel, Eugene P. Cicardo, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant John Edward Ralph was charged by bill of information with the crime of simple burglary in violation of R.S. 14:62. After a jury trial he was found guilty as charged. Subsequently the district attorney filed a bill of information charging the defendant as a multiple offender under R.S. 15:529.1. He was found guilty and sentenced to life imprisonment. On appeal he relies on seven assignments of error.

Assignments of Error Nos. 1 and 5

In a motion for a bill of particulars, the defendant requested that he be informed under which statute or statutes he was being prosecuted. The State responded that he was being prosecuted under R.S. 14:62, simple burglary.

The State, in its opening statement, and the judge, in his instructions to the jury, referred to the law of principals, R.S. 14:24. The defendant objected on the grounds that the State had failed to mention R.S. 14:24 in its answer to the motion for a bill of particulars. Defendant further alleged that such failure resulted in his not being informed of the nature and cause of the accusation against him in violation of La.Const. art. 1, § 13 (1974). We cannot agree with the defendant’s contentions.

C.Cr.P. 464 states:

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

R.S. 14:24 provides:

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

The omission of any reference to R.S. 14:24 in the information and answer to the motion for a bill of particulars cannot have prejudiced the defendant. He was charged with simple burglary, not as an accessory after the fact. All persons concerned in the commission of the crime are principals. Therefore, the defendant was on notice that he was charged with commission of a burglary, that is, as a principal. As we stated in State v. Peterson, 290 So.2d 307, 308 (La.1974):

“ . . . There is absolutely no requirement that an indictment explicitly denominate the accused as ‘principal.’ That the accused is indicted for the offense itself, and not charged as an accessory after the fact, irrefutably evidences that he is charged as a principal.”

Assignments of Error Nos. 1 and 5 are without merit.

Assignment of Error No. 3

The defendant contends the trial judge erred in refusing to sustain his challenge for cause of a juror who expressed some curiosity as to why an innocent man would not take the stand in his own defense. This juror, however, further stated that the defendant’s failure to take the stand would not affect his decision as to the defendant’s guilt or innocence.

We find that defendant cannot complain about the trial judge’s ruling. C.Cr.P. 800 states, in pertinent part:

“A defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges shall have been exhausted before the completion of the panel.”

Defendant did not exhaust his peremptory challenges before the completion of the panel and therefore, under C.Cr.P. 800, he cannot now be heard to complain that the judge’s ruling was error.

Assignment of Error No. 3 is without merit.

Assignment of Error No. 4

The defendant contends that the trial judge erred in refusing to order witnesses to talk to both the State and defense counsel. We find no error.

The trial judge instructed the witnesses that they were free to talk to any of the attorneys, whether for the State or defense, if they wished to. The trial judge further instructed the witnesses that they could disregard any instructions that someone might have given them to the effect that they should not talk to defense counsel. However, the judge refused to order the witnesses to talk to anyone.

The judge’s ruling was correct. Defendant cites no authority for the proposition that the judge should order a witness to talk to defense counsel. The judge’s ruling was fair to the defendant, especially since no showing was made that anyone had in fact instructed the witnesses not to talk to defense counsel.

Assignment of Error No. 4 has no merit.

Assignments of Error Nos. 8, 9, and 10

These assignments relate to the sentencing of the defendant as a multiple offender under R.S. IS :529.1. We find no merit in any of the defendant’s contentions.

Defendant first contends that the charge as a multiple offender in this case had to be brought by grand jury indictment, because the charge subjected him to life imprisonment. This same contention was rejected by this court in State v. Walker, 328 So.2d 87 (La.1976), wherein we held that the Louisiana Constitution does not require a charge for an enhanced penalty to be brought by indictment, because the enhanced penalty is not a “crime.”

The defendant also objected to the documents and evidence introduced at the multiple offender hearing, on the grounds that they were not properly authenticated.

State’s Exhibit No. 1, which was the record pertaining to defendant’s conviction for violation of the Dyer Act, 18 U.S.C., § 2312, was authenticated by T. L. Peek, the Administrative Assistant of the United States Penitentiary in Atlanta, Georgia. His signature, attested to by two others, is sufficient authentication under R.S. 15:529.1(F).

Defendant further contends that R.S. IS ¡529.1(F) makes no provisions for introduction of a certificate from a federal penitentiary. R.S. IS ¡529.1(F) specifically provides for the effect of “the certificates . . . of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country ...” The omission of a reference to federal prisons would seem to be a legislative oversight. Nevertheless, such certificates are admissible. Although we are cited to no statute specifically permitting the introduction of the certificate of a superintendent of a federal prison, such certificate carries the same indicia of authenticity and veracity as one from a state prison, and will be given the same force and effect— prima facie evidence of the imprisonment and discharge.

Defendant also contends that State’s Exhibit No. 1 does not contain all of the information listed in R.S. 15 ¡529.1(F). We have reviewed the information and find that R.S. 15 ¡529.1(F) was fully complied with.

Finally, defendant contends that, since Louisiana has not made the transportation of a stolen motor vehicle in interstate commerce a crime under the laws of this State, the federal conviction on this charge cannot stand as the basis of the enhanced penalty. We cannot agree.

R.S. 15 ¡529.1 (A) provides for enhanced penalties for anyone “ . convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony . . . ” The Penalty for violation of the Dyer Act, 18 U.S.C., § 2312, is $5000 or imprisonment for up to five years, or both. A felony under federal law is any crime punishable by death or imprisonment for a term exceeding one year. 18 U.S.C., § 1. In State v. Brown, 185 La. 855, 171 So. 55 (1936), we interpreted “which if committed in this state would be a felony” by looking at the penalty provision of the crime and not the crime itself. Clearly then violation of the Dyer Act, which subjects defendants to imprisonment for over one year, is a “felony” under R.S. 15 ¡529.1. Any felony under the laws of the United States makes the multiple offender act applicable. Any felony under the laws of a foreign government can also be treated as a prior conviction if that crime would be a felony if committed under the law of Louisiana. R. S. 15 ¡529.1(A).

Defendant also contends that the record of his prior state convictions cannot be used because it fails to show the length of time imprisoned or the date of discharge. This argument has no merit. See State v. Maduell, 326 So.2d 820 (La.1976).

The State proved that the defendant committed the crime of felony theft, for which he was sentenced to nine years imprisonment on November 6, 1953. R.S. 15¡529.1(C) provides:

“This Section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods.”

By adding five years to the nine years maximum sentence the defendant received, the State could use this 1953 conviction in a multiple offender proceeding if the defendant committed another felony before November 6, 1967. Defendant was convicted of another felony, violation of 18 U.S.C., § 2312, in 1961 and hence the 1953 conviction can be used against him.

Assignments of Error Nos. 8, 9 and 10 are without merit.

Accordingly, the conviction and sentence are affirmed.

      . Assignments of Error Nos. 2, 6 and 7 were specifically abandoned in brief.


text:
    STATE of Louisiana v. Brady McDANIEL, Jr.
    No. 57443.
    Supreme Court of Louisiana.
    June 21, 1976.
    Rehearing Denied Sept. 10, 1976.

      John F. Ward, Jr., Alex W. Wall, Jr., Dodd, Barker, Avant, Wall & Thomas, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was convicted of possession of heroin with intent to distribute, a violation of R.S. 40:966. He was sentenced to life imprisonment at hard labor. Having abandoned two assignments of error, defendant appeals to this court raising nine assignments of error.

The following evidence was adduced at the pretrial hearing on the State’s notice of intention to introduce evidence of other crimes and at the trial on the merits.

On February 12, 1975 undercover police officers arranged a sale of heroin with George Zito, maintenance manager at an apartment complex in Baton Rouge, Louisiana. After arrangements were complete, Zito went to defendant’s residence in Baker, Louisiana and procured the heroin. The practice between Zito and defendant called for Zito to take heroin from defendant, deliver it to prearranged purchasers, collect payment and return the payment to defendant. When Zito attempted to deliver the heroin to undercover agents at the Baton Rouge apartment complex, he was arrested. From that moment he has cooperated with law enforcement officials.

Later the same day and at the suggestion of police officers, Zito arranged with defendant a second transaction. In a taped telephone conversation, Zito and defendant agreed to meet at a Taco Bell Restaurant in Baton Rouge where defendant would give the heroin to Zito. When defendant arrived at the Taco Bell he was arrested, and police found three “bags” of heroin on his person.

Assignment of Error No. 1

Defendant contends the trial court erred by admitting evidence which was not within the scope of the notice of intention given by the State. As required by State v. Prieur, 277 So.2d 126 (La.1973), the State had served defendant with a notice of its intention to introduce evidence of other crimes. The relevant portion of that notice reads:

.“On February 12, 1975, between the hours of 3:00 P.M. and 6:10 P.M. one George Zito obtained three foil packets of heroin from the defendant, Brady McDaniel, Jr. This transaction occurred in East Baton Rouge Parish.”

Defendant’s subsequent motion for a bill of particulars asked where the transaction occurred, and the State replied it occurred at 310 Cypress Street in Baker, Louisiana. This is the address of defendant’s residence.

Defendant did not object when the State introduced evidence of the transfer from defendant to Zito at defendant’s Cypress Street residence. He objected when the State sought to introduce evidence of the transfer from Zito to undercover agents at the Baton Rouge apartment complex. Defendant contends this is an independent crime not included in the notice of intention and that evidence of it is therefore inadmissible. We disagree.

The transfer of heroin from defendant to Zito at defendant’s Baker residence was the first step in a single transaction. Both defendant and Zito intended the heroin to be delivered to the customers and the purchase price to be returned to defendant. Defendant contends the notice of intention failed to inform him of the State’s intention at trial to introduce evidence of the transfer from Zito to undercover agents. Because of the nature of the transaction between defendant, Zito and the undercover agents, the wording of the notice refutes this contention. Even if it did not, the evidence introduced at the pretrial hearing informed defendant of the entire transaction and the State’s intention to use it on the trial. Defendant was not surprised in any way, and was adequately notified.

This assignment is without merit.

Assignments of Error Nos. 2, 3, 4, 7 and 9

In these assignments defendant contends the evidence adduced at the pretrial hearing and introduced at trial, concerning the transfer from Zito to undercover agents at the Baton Rouge apartment complex, should not have been admitted at trial because its probative value was outweighed by its prejudicial effect.

Assignment of Error No. 2 complains generally of “evidence ruled admissible at the Prieur hearing.” Assignment No. 3 complains of the prosecutor’s reference to such evidence in his opening statement. Assignment No. 4 complains of testimony by a State crime lab expert concerning heroin ruled admissible at the pretrial hearing. Assignments Nos. 7 and 9 complain of testimony by police officers concerning the heroin transfer ruled admissible at the pretrial hearing.

R.S. 15:445-15:446 provide:

“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”
“When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

Evidence of other crimes is admissible only where relevant, and then only when its probative value outweighs its prejudicial effect. State v. Harrison, 291 So.2d 782 (La.1974); State v. Moore, 278 So.2d 781 (La.1973).

In the case before us evidence that Zito, after receiving heroin from defendant, delivered the heroin to would-be customers (undercover police agents) in accordance with their earlier arrangement, tends to prove that at the time of his arrest defendant possessed heroin with the intent to distribute according to a prearranged plan. Thus the evidence is relevant. Any evidence of the intent of defendant to distribute would be “prejudicial,” but not so unduly prejudicial that its introduction made it unlikely that the jury could fairly weigh the evidence and impartially apply the law in reaching a verdict.

These assignments are without merit.

Assignments of Error Nos. 5 and 6

Defendant contends the prosecutor went outside the notice of intention when he asked the following questions :

Assignment No. 5:
“Q. All right, had Brady McDaniel asked you to sell heroin before?”
Assignment No. 6:
“Q. Prior to February 12, 1975, did Brady McDaniel ask you to sell heroin for him?”

However, it was during defense counsel’s cross-examination of Zito during the pretrial hearing that this information was first introduced:

“Q Now, you said you never paid for any heroin when you got it from Brady McDaniels (sic). Why was that?
“A No, I didn’t.
“Q Why was that?
“A I knew Brady before, and he was constantly pursuing me to sell some for him, because of where I was living and so forth. I was in the L.S.U. area and he had offered me double my money for any money I would invest in his procedures, and he was constantly pursuing me and Hilton Bryant — which usually was in my company.”

The evidence which defendant contends was outside the scope of the State’s notice of intention was adduced by defendant. Defendant cannot complain that the State’s notice of intention did not refer to such activity; nor was defendant surprised at trial by the introduction of the evidence. The evidence was relevant to show defendant’s intention to distribute heroin; the notice of intention informed defendant that other crimes evidence would be introduced to show this “intent,” and the evidence of the practice was first introduced by defendant at the pretrial hearing twenty-one days before trial. There has been substantial compliance with the requirements of State v. Prieur, supra.

These assignments lack merit.

Assignments of Error Nos. 8 and 10 were abandoned.

Assignment of Error No. 11

Defendant filed a motion for a new trial based on two grounds.

He first urges that a new trial must be granted for reasons raised in the other assignments of error. Because those assignments are without merit, this contention also lacks merit.

He next urges that a new trial must be granted because “the ends of justice would be served by the granting of a new trial.” C.Cr.P. 851(5). Defendant’s only argument in support is that equal treatment should be accorded Zito and himself. Zito’s fate and defendant’s are independent, and we are limited to determining whether defendant received a fair trial under the law.

This assignment is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.