author: TATE, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana In the Interest of Pate CAUSEY.
    No. 61885.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Charles Williams, Gerdes & Valteau, New Orleans, for Pate Causey-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Gregory S. Abramson, Asst. Dist. Atty., for State-respondent.
   TATE, Justice.

At the instance of a juvenile made defendant in juvenile proceedings, we granted certiorari to determine whether a juvenile has a right to plead not guilty by reason of insanity and a right to a hearing to determine his mental capacity to assist in his defense. La., 357 So.2d 1159.

Facts

Pate Causey, age 16, was petitioned into the Orleans Parish juvenile court, charged with armed robbery. His attorney filed a motion, the substance of which was that defendant be allowed to plead not guilty and not guilty by reason of insanity, and that the judge appoint a panel of psychiatrists to perform comprehensive tests to determine whether defendant was legally insane at the time the act was committed, and also whether defendant was legally competent to aid in his own defense.

Several psychological tests had been performed upon the defendant, and the report of the testing psychologists had recommended psychiatric evaluation. A psychiatrist had interviewed the defendant, without access to the psychological test results. Defense counsel wished to subpoena the psychiatrist, whose report he had been given by the judge at the time of the hearing on the motion. After indicating his inclination to deny the motion, the judge asked the defense attorney if he would “submit it [the question whether defendant was competent to assist in his defense] on that [the psychiatrist’s report].” Defense counsel responded, “I submit on the report,” and the court denied the motion.

The Right of a Juvenile to Plead Insanity

There is no statutory right to plead not guilty by reason of insanity in a Louisiana juvenile proceeding, since such proceedings are conducted as civil proceedings, with certain enumerated differences. La. R.S. 13:1579 (1977). We hold, however, that the due process guaranties of the Fourteenth Amendment to the United States Constitution, and of Article I, Section 2 of the Louisiana Constitution, require that a juvenile be granted this right.

The only courts ever squarely confronted with the issue have held that, at least in adult proceedings, the denial of the right to plead insanity, with no alternative means of exculpation or special treatment for an insane person unable to understand the nature of his act, violates the concept of fundamental fairness implicit in the due process guaranties. Sinclair v. State, 161 Miss. 142, 132 So. 581 (1931); State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910). Some recent federal cases have also spoken of the insanity plea in terms indicating that the right to assert it has constitutional dimensions of a due process (fundamental fairness) nature. See, e. g., Buzynski v. Oliver, 538 F.2d 6 (1st Cir.), cert. denied, 429 U.S. 984, 97 S.Ct. 503, 50 L.Ed.2d 596 (1976); Hill v. Lockhart, 516 F.2d 910 (8th Cir. 1975); Ramer v. United States, 390 F.2d 564 (9th Cir. 1968). See also United States v. Jackson, 306 F.Supp. 4 (N.D.Cal.1969).

The insanity defense, and the underlying notion that an accused must understand the nature of his acts in order to be criminally responsible (the mens rea concept), are deeply rooted in our legal tradition and philosophy, as the cited decisions note. See also LaFave and Scott, Criminal Law, Sections 27 (p. 191) and 36 (p. 238) (1972); Hall, General Principles of Criminal Law, 18, 70-104 (Chapter 3), 146, 185-90, 449-64 (2d ed. 1960). We deem it clear, as held by the Mississippi and Washington supreme courts in Sinclair and Strasburg above cited, that the due process-fundamental fairness concepts of our state and federal constitutions would be violated, at least in adult prosecutions for crimes requiring intent, if an accused were denied the right to plead the insanity defense. Cf. also Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

However, not every constitutional right guaranteed to adults by the concept of fundamental fairness is automatically guaranteed to juveniles.

The United States Supreme Court has undertaken a case-by-case analysis of juvenile proceedings, making not only the historical inquiry into whether the rights asserted were part of fundamental fairness, but also a functional analysis of whether giving the particular right in question to the juvenile defendant would interfere with any of the beneficial aspects of a juvenile proceeding. Only those rights that are both “fundamental” and “essential,” in that they perform a function too important to sacrifice in favor of the benefits theoretically afforded by a civil-style juvenile proceeding, have been held to be required in such proceedings. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1970); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

The same approach was adopted by a majority of this court in determining which due process rights are guaranteed to juveniles by the Louisiana Constitution, in State in Interest of Dino, 359 So.2d 586 (La.1978). (Since we ultimately find this defendant’s right to plead insanity to be guaranteed by the state and federal due process clauses, we need not reach the additional equal protection argument advanced, by which juveniles would be denied the equal protection of the laws if they were not permitted as are adults to be exculpated by insanity from criminal responsibility.)

McKeiver, Winship, and Gault imposed on juvenile proceedings a host of traditional criminal trial safeguards — the right to appropriate notice, to counsel, to confrontation and cross-examination, and the privilege against self-incrimination — and declined to impose only one safeguard, the right to a jury trial.

While the due process right to a jury trial has been held to be an element of “fundamental fairness,” at least in non-petty adult proceedings, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the court’s emphasis in McKeiver was not on the degree of “fundamentality,” but on the function served by the jury trial. The plurality saw the jury as a component in the factfinding process, and as such, not “a necessary component of accurate factfind-ing.” 403 U.S. at 543, 91 S.Ct. at 1985. Only after finding that the jury trial — although “fundamental” for adults — was not really “essential” to a fair trial proceeding, i. e., did not perform a function that could not be adequately performed by some other procedure, did the court examine the impact of a jury trial upon the beneficial effects of the juvenile system, and conclude that it would “bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial.” Id. at 550, 91 S.Ct. at 1988.

In Winship, the court held that a juvenile could not be adjudged to have violated a criminal statute by a mere preponderance of the evidence. The standard of proof “beyond a reasonable doubt” was held to play “a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. . . . ‘[A] person accused of a crime . . . would be at a severe disadvantage . . . if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.” 397 U.S. at 363, 90 S.Ct. at 1072.

Underlying the functional analysis of the two procedures examined in McKeiver and Winship, was not only the consideration of whether equally effective safeguards existed to the rights sought to be imported into juvenile proceedings, but also a consideration of the realistic role played by these two rights in safeguarding juvenile rights at actual trials: the “beyond a reasonable doubt standard” actually kept the juvenile in Winship out of jail, whereas there was no evidence that a jury trial in McKeiver would have done so.

The availability of some procedure for differentiating between those who are culpably responsible for their act and those who are merely ill is, as we have seen, a part of “fundamental fairness.” Moreover, it is hard to see that any important aim of the juvenile system is thwarted by affording such a distinction to the mentally ill juvenile.

The function of the insanity plea is much more akin to that of the burden of proof imposed on juvenile proceedings in Win-ship, than of the jury trial involved in McKeiver and Dino. An insanity defense, like a high burden of proof, will generically spell the difference between conviction and acquittal. That there is perhaps a lesser stigma associated with an adjudication of juvenile delinquency than with an adult criminal conviction, and that juvenile incarceration is theoretically calculated to rehabilitate rather than to punish, were deemed constitutionally insignificant in Winship.

In the present case, further, the state expressly does not contest the issue whether this juvenile should be allowed to plead not guilty and not guilty by reason of insanity when charged with a serious crime.

Incompetence to Stand Trial in Juvenile Proceedings

In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the United States Supreme Court held that the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of due process. The Pate court held that the defendant was entitled to an evi-dentiary hearing on the issue of his competence to stand trial, where the showing at the time of the trial raised a substantial issue as to his mental condition. See also Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

In State v. Bennett, 345 So.2d 1129 (La. 1977), on rehearing, this court swept away many of the devices that had been used in Louisiana courts to circumscribe the effects of Pate. On original hearing, the court had relied on such factors as the defendant’s burden of proof, judicial discretion and the “clearly erroneous” rule to uphold a trial court determination, after a hearing had determined (but without significant psychological testing) that the defendant was legally sane. On rehearing, the court held that a defendant “has a right to demand that the [court-ordered sanity] hearing be thorough and cannot be held responsible for the commission’s failure to. complete its task,” i. e., sufficient “clinical evaluation” so that the examining physicians will be “certain of their results.” 345 So.2d at 1139. Burdens of proof and standards of judicial review — relied upon here in the state’s brief to uphold the juvenile court judge’s finding that defendant was competent — come into play only where the record does not suggest further inquiry into the defendant’s sanity.

Since the right not to be tried while incompetent is a due process-fundamental fairness right, see Pate and Drope cited above, it should (under the previous analysis) be applicable to juvenile proceedings, unless some essential end of the juvenile justice system will be thwarted by its application. Indeed, the right — rooted as it is in traditional notions of fair play, viewed from the early days of the common law as central to a defendant’s ability to present his defense, and akin to the right not to be tried in absentia is not only historically “fundamental,” but also functionally “essential,” and therefore cannot be outweighed under the Gault/McKeiver/Winship test by other, desirable aspects of the juvenile system.

The state does not suggest any special reason that a juvenile should be denied this right due an adult. The only reason that comes to mind is the argument that many juveniles, “sane” as well as “insane,” “normal” as well as “retarded,” are incompetent to assist in their own defenses, at least by normal adult standards. This, indeed, is a large part of the rationale for the special juvenile system. Where a juvenile is “incompetent” primarily because of his tender years, it might be unnecessary and perhaps unwise to substitute the full-dress examinations and hearings designed for adult incompetents, in place of procedures designed especially to deal with youth and inexperience.

But that is not the case here. Pate Cau-sey was reported, by the psychologists who examined him for the court, to vary “from the upper end of the range of moderate mental retardation with regard to non-verbal intelligence ... to the range of mild mental retardation with regard to verbal intelligence. . . . ” He was reported to have “poor fine motor control, spatial disorientation, and problems in angling . suggestive of neuropsyschological dysfunction,” with “memory problems and the possibility of episodic ‘blanking out’ ” as “further evidence of possible neuropathy.” Psychiatric evaluation was recommended.

A psychiatrist did meet with the boy, without access to test results; the gist of his conclusions was that the boy was dull and a liar rather than retarded and psychotic.

The reports were given by the judge to the defense attorney at the trial, to read for five minutes before arguing the motion relating to incompetence. This data, inconclusive and perhaps contradictory but suggestive of possible problems, is much like that which, in Bennett, this court held to require further testing.

Conclusion

The right not to be tried while incompetent to assist in one’s own defense is a fundamental due process right. The right to plead insanity, absent some other effective means of distinguishing mental illness from moral culpability, is also fundamental. There is no compelling reason to deny either of these constitutional rights to juveniles charged with conduct that would be serious crimes if committed by adults.

Here, there were facts in the record to put the trial court on notice that the defendant might be mentally retarded or insane. A defendant in a juvenile proceeding has the right to plead not guilty and not guilty by reason of insanity. Under the showing made, this defendant also had the right to a more thorough mental (psychiatric) examination, followed by a contradictory hearing.

Decree

For the foregoing reasons, the ruling of the trial judge denying applicant’s motion is reversed, and the case is remanded to the district court for further proceedings consistent with the views expressed by this opinion.

REVERSED AND REMANDED.

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

SUMMERS, J., dissents.

MARCUS, J., dissents for reasons assigned by SANDERS, C. J.

SANDERS, Chief Justice

(dissenting).

This proceeding was instituted by petition in the Juvenile Court for the Parish of Orleans, alleging that Pate Causey, age 16, had committed armed robbery upon Mar-garette Williams. After a preliminary hearing, the judge ruled that there was probable cause to hold the youth for hearing on the petition.

Later, defense counsel filed two motions, a motion to suspend proceedings and a motion to enter a plea of “not guilty and not guilty by reason of insanity.” Both motions were founded upon the following allegations:

“(1) Defendant’s inability to assist his attorney in the preparation of his defense;
“(2) Certain psychiatric tests that have been administered at the Youth Study Center in New Orleans, seemingly substantiate the fact that this defendant is mentally incompetent and should not be allowed to stand trial in this condition.”

At the hearing on the motions, defense counsel submitted the motions on the psychiatric evaluation of Dr. Patrick Dowling of the court’s Youth Study Center.

Based upon the submission, the court ruled that the youth was competent to assist counsel and indicated that the case would later be assigned for hearing. The court made no ruling on his psychiatric condition at the time of the offense.

In my opinion, the ruling of the trial judge was correct. Dr. Dowling’s report found that the youth was “alert and oriented.” Although he was found to be of “dull intellectual ability,” he had no psychosis. The report contains no finding that he lacked the capacity to assist his counsel and understand the nature of the proceedings against him.

The trial judge’s ruling on competency for court proceedings is entitled to great weight and should not be disturbed in the absence of a clear showing of abuse of discretion. State v. Burnette, La., 337 So.2d 1096 (1976); State v. Nix, La., 327 So.2d 301 (1976). I would affirm the ruling of the trial judge.

In this Court, the defense submits one assignment of error, reciting two arguments: (1) That a complete psychiatric examination should be performed to determine whether the juvenile is competent to stand trial; (2) that the defense should be allowed to plead “not guilty and not guilty by reason of insanity.”

The majority apparently agrees with both of these arguments. It holds that the juvenile is entitled to a “more thorough mental (psychiatric) examination.” It also holds that due process guarantees require that a juvenile be accorded the right to plead not guilty by reason of insanity.

The first holding is faulty. Defense counsel submitted the question of competency upon the psychiatric report already made. Clearly, this precludes a contention here that an additional examination is required. As I have already indicated, the ruling of the juvenile court judge was correct based upon the submission.

The holding that a plea of not guilty by reason of insanity is constitutionally required in Louisiana juvenile law is based upon the premise that the present statute is constitutionally deficient in not providing procedures for exploring insanity at the time of the offense.

In my opinion, the basic premise is untenable. The Juvenile Court Law contains ample procedures to deal with the issue. LSA-R.S. 13:1570 provides in pertinent part:

“Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
<< # * #
“E. For the commitment of a mentally defective or mentally disordered child in accordance with the provisions of law for commitment of such persons. If it shall appear that any child concerning whom a petition has been filed is mentally defective or mentally disordered, the court, before committing him to an institution, may cause such child to be examined by a qualified psychiatrist, physician, or psychologist. On the written statement of such psychiatrist or physician that such child is mentally disordered, or on the written statement of such psychologist that such child is mentally defective, or at the discretion of the court, the court may, by observing the procedure prescribed by existing laws commit such child to an appropriate institution authorized by law to receive and care for such children. The parent, tutor or person having the care of such child shall be given due notice of any proceedings hereunder.”

LSA-R.S. 13:1583 authorizes the psychiatric examination and commitment of a child to a hospital in any case.

LSA-R.S. 13:1579 authorizes consideration of “social, psychological and psychiatric studies” at the hearing on a delinquency petition.

LSA-R.S. 13:1580 provides in pertinent part:

“A. If the court finds that a child is within the purview of R.S. 13:1561 through 13:1592, it may adjudge the child to be a neglected child or delinquent child, as defined in R.S. 13:1569, or a child in need of supervision. The court, in its judgment, after giving consideration to the gravity of the alleged offense, the police record of the juvenile, and when available the social, psychological, and psychiatric studies conducted on the juvenile, may:
ii * * *
“(3) Make such other disposition of the child as the court deems to be for the best interests of the child, including commitment to a public mental hospital or institution for the mentally defective. However, nothing herein shall be construed as authorizing the removal of the child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.
a * * *
“B. No adjudication by the court upon the status of any child shall operate to impose any of the civil disabilities ordinarily resulting from conviction, nor shall any child be deemed a criminal by reason of such adjudication, and such adjudication shall not be deemed a conviction. The disposition of a child or any evidence given in the court shall not operate to disqualify the child in any future civil service application or appointment.”

The 1978 Code of Juvenile Procedure contains similar procedures. See Articles 61, 70, 81, 83A(7), 86D.

Thus, there is built into the juvenile court law procedures for pre-hearing mental and psychiatric examinations. Further examinations may be made in connection with the hearing. In the event a mental defect or insanity is found, the court is authorized to commit the child to a mental institution at any stage of the proceeding.

Juvenile proceedings are non-criminal. LSA-R.S. 13:1580B. Hence, there is no provision for formal criminal-court pleas. The essential inquiry is whether the child admits or denies the factual allegations of the petition. See Art. 55, Code of Juvenile Procedure (1978). Whether he admits or denies the allegations, however, his competence to assist counsel and his sanity are always pertinent issues under juvenile procedures. There is no room in these procedures for a plea of not guilty by reason of insanity, because the competence and sanity of the child are before the court at all stages.

The majority holding imports into the juvenile law formal criminal-court pleading and procedure by means of constitutional analysis based upon what I believe to be an erroneous premise. I greatly fear that the constitutional holding will disrupt juvenile procedures, so recently codified in the Code of Juvenile Procedure of 1978.

For the reasons assigned, I respectfully dissent.

      . Act 172 of 1978 enacted a Code of Juvenile Procedure (C.J.P.) which replaces much prior statutory regulation. La. C.J.P. art. 24 provides similarly to former La.R.S. 13:1579 (1977).

      . Because of the criminal law experience of counsel, the response to the petition is frequently voiced as “not guilty.” This expression, though technically inappropriate since juvenile proceedings are non-criminal, is received as a denial of the allegations of the petition.


source: Caselaw Access Project

author: MARCUS, Justice. SANDERS, C. J.,

license: Public Domain

text:
    STATE of Louisiana v. Frank SPEARS and Weaver Goodson.
    No. 61886.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Frank Spears and Weaver Goodson were charged in the same information with simple burglary in violation of La.R.S. 14:62. After trial by jury, defendants were found guilty as charged. Thereafter, the state filed separate informations accusing each defendant of being an habitual offender under La.R.S. 15:529.1. After a hearing, the trial judge found both defendants to be habitual offenders and sentenced each to serve eighteen years at hard labor. On appeal, defendants rely on five assignments of error for reversal of their convictions and sentences. Because we find merit in the first assigned error, we need not consider the remaining four.

During voir dire examination, the following colloquy took place between the trial judge and a prospective juror (Mr. Sullivan) in the presence of the other jurors already selected:

BY MR. SULLIVAN:
What does the law read on unexplained possession of stolen merchandise?
BY THE COURT:
That is the law and you have to follow it. In other words, a person in the possession of recently stolen property, unexplained possession of the recently stolen property is presumed to be the thief. The burden shifts.
BY MR. SULLIVAN:
All right, I agree with that.
BY THE COURT:
The Supreme Court extenuated [sic] that definition of law to a person in possession — -in the unexplained possession of recently stolen property is presumed to be the burglar.
BY MR. SULLIVAN:
Right.

Selection of the jury was completed. Thereupon, on motion of defendants, the court ordered the jury removed from the courtroom. Defendants then moved for a mistrial on the ground that the court erred in instructing the jurors that a person in the unexplained possession of recently stolen property is presumed to be the burglar. The trial judge denied the motion. Defendants objected to this ruling.

Defendants contend that the aforesaid instruction to the jury by the trial judge constituted reversible error. They argue that under our recent decision in State v. Searle, 339 So.2d 1194 (La.1976) (on rehearing), the instruction violated the state and federal constitutional requirement that the state prove its case against defendant beyond a reasonable doubt. See also State v. Wingerter, 339 So.2d 1 (La.1976).

La.R.S. 15:432 provides in pertinent part:

A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption . . . that the person in the unexplained possession of property recently stolen is the thief; ....

Prior to our recent decision in State v. Searle, supra, this court had judicially extended the above statutory presumption to apply to the crime of simple burglary. State v. McQueen, 278 So.2d 114 (La.1973); State v. Shelby, 215 La. 637, 41 So.2d 458 (1949); State v. Pace, 183 La. 838, 165 So. 6 (1935). However, in Searle, where the jury was similarly instructed in a case involving a charge of simple burglary that a defendant found in the unexplained possession of property recently stolen at the time of a burglary was presumed to have committed the burglary, we held that the judicial extension of the statutory presumption to the crime of simple burglary was “unconstitutional, unwise and must be overruled.” Accordingly, defendant’s conviction was reversed. See also State v. Wingerter, supra.

The instant case was tried on October 2, 1974, prior to our decision in Searle (May 17,1976). The charge was simple burglary. The complained of instruction by the trial judge to the jury was that a person in the unexplained possession of recently stolen property was presumed to be the burglar. The alleged error is identical to the one which we found to be reversible in Searle. There is no contention to the contrary. However, the state argues that, since the trial and convictions involved herein took place prior to our decision in Searle and the trial judge’s instruction comported with the jurisprudence then in effect, we should give prospective application only to the Searle decision.

This case is before us on direct appeal. The convictions were not final prior to our decision in Searle. Moreover, defendants timely asserted their objection to the instruction complained of. Accordingly, we feel constrained to apply our decision in Searle to those cases not yet final prior to that decision where timely objection has been made. Hence, defendants’.convictions and sentences must be reversed.

DECREE

For the reasons assigned, the convictions and sentences are reversed and set aside and the case is remanded to the district court for a new trial in accordance with the views herein expressed.

SANDERS, C. J.,

dissents, having dissented in State v. Searle, La., 339 So.2d 1194.

SUMMERS, J., dissents.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Jessie Lee WILSON.
    No. 61892.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Alton T. Moran, Director, Allen J. Ber-geron, Jr., Appellate Counsel, Frank Fertit-ta and Darrell D. White, Trial Attys., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

On June 2, 1975, a grand jury indicted defendant, Jessie Lee Wilson, for aggravated rape. The indictment charged that the crime occurred on or about May 8, 1975. Defendant’s first trial, which ended in a mistrial, commenced on February 2, 1976. Immediately prior to defendant’s second trial on September 19, 1977, the prosecutor amended the indictment to charge defendant with attempted aggravated rape. The jury found defendant guilty as charged on September 22, 1977. The trial judge sentenced defendant to forty years’ imprisonment.

On appeal, defendant relies upon six assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Here, defendant contends that the trial court erred in denying his motion to quash based upon the expiration of the time limitation for trial set forth in Article 578 of the Louisiana Code of Criminal Procedure. He also argues that he was denied his constitutional right to a speedy trial by the long delay between the time prosecution was instituted and the verdict in his case.

Article 578 of the Louisiana Code of Criminal Procedure provides:

“Except as otherwise provided in this Chapter, no trial shall be commenced:
“(1) In capital cases after three years from the date of institution of the prosecution;
“(2) In other felony cases after two years from the date of institution of the prosecution; and
“(3) In misdemeanor cases after one year from the date of institution of the prosecution.
“The offense charged shall determine the applicable limitation.”

Defendant argues that the amendment of the indictment to reflect attempted aggravated rape, rather than aggravated rape, made the two-year limitation applicable to his case rather than the three-year limitation applicable to capital cases. This argument is without merit.

Under Article 578, the offense charged in the indictment determines the applicable limitation; the applicable limitation for capital offenses is three years from institution of prosecution. We have repeatedly held that the State may abandon the greater crime charged in an indictment and proceed to trial only on a lesser offense. State v. Gilmore, La., 332 So.2d 789 (1976); State v. Edwards, La., 287 So.2d 518 (1973); State v. Ford, 259 La. 1037, 254 So.2d 457 (1971); State v. Doucet, 177 La. 63, 147 So. 500 (1933); State v. Kelly, 176 La. 405, 146 So. 6 (1933). As attempted aggravated rape is a lesser included offense, the State properly elected to press only the lesser charge. This action had no effect on the three-year time limitation. The trial court properly overruled the motion on this ground.

Alternatively, defendant contends that he was denied his constitutional right to speedy trial. He relies upon Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), holding that the factors to be considered are the length of the delay, the reasons for the delay, the resulting prejudice to the defendant, and the defendant’s assertion of his right to a speedy trial.

The record affirmatively shows that the defendant himself occasioned many of the delays and did not assert his right to a speedy trial until shortly before he was brought to trial the second time. Furthermore, the defendant has demonstrated no prejudice. Hence, this contention is likewise untenable.

Assignments of Error Nos. 4 and 5 are without merit.

ASSIGNMENT OF ERROR NO. 8

Defense counsel argues in this assignment of error that the district court imper-missively curtailed his examination of prospective jurors on voir dire.

He bases this assignment of error on the court’s refusal to allow him to ask the following question of a prospective juror:

“Mr. Moreau has already indicated that the defendant in a criminal trial, the accused, stands at this junction presumed innocent in the eyes of the law and that presumption is over, can only be overcome by competent evidence from the witness stand that satisfies every reasonable doubt. So if you’re convinced to a moral certainty of his guilt. . . . ”

The expression “convinced to a moral certainty” is frequently used as a synonym of “proof beyond a reasonable doubt” in defining that burden of proof. See Gray v. State, 56 Okl.Cr. 208, 38 P.2d 967 (1934). The phrase, however, does not mean certainty. Hence, it may be misleading when used without further explanation in voir dire examination. As the court stated in Gray v. State, supra, it is not likely to assist the jury.

We note that the trial judge did allow counsel ample opportunity to question the jurors as to the presumption of innocence and the burden of proving guilt beyond a reasonable doubt. Tr. 65, 69, 120, 144. During voir dire examination, the trial judge likewise instructed the jurors as to the presumption of innocence and the burden of proof. Tr. 37, 43.

In our opinion, the trial judge did not abuse his discretion in disallowing the question.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 20 AND 21

Here, defendant alleges that the victim’s reference to defendant’s telling her that “he had been to Angola” constituted impermissible reference to other crimes which warranted a mistrial. He argues that the trial court’s refusal to order a mistrial constituted reversible error.

The testimony came about in the following manner: The victim of the charged offense testified at trial that she had a lengthy conversation with the defendant at the time of the commission of the present offense. The conversation apparently occurred after the first rape but before the second. In the course of direct examination by the State, regarding the content of this conversation, the following exchange took place:

“A. ... I asked him to tell me his name, and he wouldn’t tell me his name. He had me believing from things that he had said that he was a man by the name of Perry Payne, a guy that I had heard of . And I believed him to be Perry Payne, but he said his name, his initials were ‘J.C.’ or ‘J.S.,’ but I knew the last name was Williams.
U * * *
“Q. What things did he say that made you think he was Perry Payne?
“A. He said that he had been to Angola.”

Defense counsel at this point objected and moved for mistrial on the ground that the reference to Angola (the State Penitentiary) constituted inadmissible evidence of another crime. The trial court denied the motion for a mistrial and denied a subsequent request from defense counsel for an admonition to the jury. The prosecutor argued that the reference was part of the res gestae and was, therefore, admissible.

LSA-R.S. 15:447 defines res gestae as follows:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”

Defendant argues that the reference to Angola does not comprise part of the res gestae under LSA-R.S. 15:447 since the reference was to events remote in time and space. However, the defendant’s own statements during the commission of a criminal act are the spontaneous words of a participant and comprise part of the res gestae under LSA-R.S. 15-447. State v. Sepulvado, La., 342 So.2d 630 (1977); State v. Williams, La., 331 So.2d 467 (1976); State v. McKinnon, La., 317 So.2d 184 (1975).

In the present case, the defendant’s statement that he had been to Angola was made after he entered the victim’s home armed with a dangerous weapon. The victim stated that she submitted to the defendant because she was in fear of her life since the defendant had already stated he had been in Angola. Thus, the defendant’s statements were clearly part of the res ges-tae since they were made after the defendant entered the house armed with a dangerous weapon and before he raped the victim. Under LSA-R.S. 15:447, the res gestae is always admissible in evidence. State v. Morris, La., 340 So.2d 195 (1976); State v. Curry, La., 325 So.2d 598 (1976); State v. Hatch, La., 305 So.2d 497 (1975).

Under Louisiana Code of Criminal Procedure Article 770, a mistrial is mandated only when there is a reference to another crime regarding which evidence is inadmissible. Since the defendant’s statements comprised part of the res gestae under LSA-R.S. 15:447, these statements are admissible and do not mandate a mistrial. State v. Madison, La., 345 So.2d 485 (1977); State v. McCoy, La., 337 So.2d 192 (1976).

Moreover, defendant's statements were relevant to a material issue in the case. Under LSA-R.S. 14:42, it was necessary for the State to prove that the victim was prevented from resisting by threats of great and immediate bodily harm. The defendant’s statement to the victim before the rape that he had been in Angola tended to substantiate the victim’s fear that the defendant would seriously harm her if she did not submit to him.

Defendant also contends that the probative value of other crimes, evidence which comprises part of the res gestae, must be balanced against its prejudicial ef-feet under State v. Moore, La., 278 So.2d 781 (1973) and State v. Prieur, La., 277 So.2d 126 (1973). However, both State v. Moore, supra, and State v. Prieur, supra, concerned evidence of other crimes admissible under the knowledge, intent, system exception rather than the res gestae exception. LSA-R.S. 15:447 clearly states that what forms part of the res gestae is always admissible in evidence. Other crimes evidence which forms part of the res gestae, particularly through the words and actions of the defendant himself, is admissible without balancing the probative value of the evidence against its prejudicial effect. State v. Madison, supra; State v. Brown, La., 340 So.2d 1306 (1976); State v. Brown, La., 321 So.2d 516 (1975).

ASSIGNMENT OF ERROR NO. 26

Defendant alleges that testimony of a State’s witness, a deputy sheriff, constituted reference to previous inadmissible criminal activity on defendant’s part.

The alleged error took place in the following context: The State called as a witness a deputy sheriff who participated in defendant’s arrest. During the course of questioning regarding events subsequent to defendant’s arrest, the following exchange took place between the prosecutor and the witness:

“Q. Okay. Did you conduct further investigation at the detective office?
“MR. WHITE: I object to the leading question.
“THE COURT: Don’t lead your— what did you do next.
“Q. What did you do there?
“A. We pulled a file.
“BY THE COURT:
“Q. What file?
“A. On Jessie Lee Wilson.”

At this point, defense counsel moved for a mistrial and stated as grounds that “ . . .it was inconceivable to the jury to conclude otherwise that there had been previous criminal activity committed on the part of Jessie Lee Wilson.”

LSA-C.Cr.P. art. 770 provides, in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
U * * *
“(2) Another crime committed or alleged to have been committed by the defendant to which evidence is not admissible;”

The trial judge denied the motion on the grounds the witness’s statement was unsolicited, and, in any event, was harmless since the jury already was aware from competent testimony that defendant had been in the State Penitentiary.

We are not prepared to hold that the witness’s answer was unresponsive to the trial judge’s question. The second basis for his ruling, however, is sound.

The jury here already knew from prior testimony (see Assignments of Error Nos. 20 and 21) that defendant had been at the State Penitentiary.

In State v. Overton, La., 337 So.2d 1201 (1976), a police officer testified that as part of his investigation of the crime charged, he looked up the defendant’s address in “our records and identification section.” In affirming the conviction, we stated:

“ . . . [W]e agree with the trial judge that the recondite reference at issue here could not have suggested to the jury that defendant had a prior criminal record. As the witness testified out of the jury’s presence, a person’s name might be on file with the records and identification section for innocent reasons, such as involvement in a traffic accident. The ruling of the trial judge was correct.”

The present case is a stronger one for rejecting the complaint. As in State v. Overton, supra, there is only a “recondite reference,” normally not construed as a reference to a prior crime. Additionally, however, if the jury here construed the witness’s response as referring to a prior crime, it would undoubtedly be connected with the prior penitentiary term of which they were already aware.

The court offered, after denying the defense motion for mistrial, to give the jury an admonition regarding the testimony. Defense counsel refused the instruction. Under the totality of the circumstances, the ruling of the trial court was correct.

Assignment of Error No. 26 is without merit.

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

DIXON, J., dissents because of the treatment of Assignment No. 8.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Freddie W. CASE, Jr., Michael Wayne Davis and William J. Kimball.
    No. 61894.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Philip A. LeTard, Vidalia, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falken-heiner, Dist. Atty., Glenn B. Gremillion, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

On Sunday night, November 11, 1977, Sherry Keith called upon Deputy Lyle Schiele of the Concordia Parish Sheriff’s Department to report that she had seen her sister smoking marijuana with a group of people in a trailer belonging to Freddie Case. She and the deputy went to the home of Vidalia City Judge Patrick McDon-ough, III, where the judge placed Mrs. Keith under oath and listened to her sworn statement in which she gave an eyewitness account of the events in the Case trailer. Judge McDonough then issued a search warrant wherein it is stated that probable cause for the warrant was contained in affidavits supplied by Sherry Keith. In fact, no affidavit was ever obtained. At approximately 10:30 p. m. that night Sheriff’s Department officers searched a trailer belonging to Freddie W. Case, Sr. and discovered a small quantity of marijuana and some paraphernalia. As a result of this search, defendants Freddie W. Case, Jr., Michael Wayne Davis and William J. Kim-ball were arrested and charged with possession of marijuana with intent to distribute.

On January 25,1978 consolidated motions to suppress and preliminary examinations were heard by the district court. Over defense objections, the prosecution was permitted to establish probable cause for the issuance of the search warrant without the support of an affidavit. Defendants sought and were granted a writ of certiorari to review the trial judge’s ruling denying the motion to suppress. Defendants assign four errors as mandating reversal of this ruling.

Assignment of Error No. 1

The defendants contend that it was reversible error to deny the motion to suppress by upholding the search warrant without the requirement of a written sworn statement to establish probable cause for its issuance. We agree.

Article 162 of the Code of Criminal Procedure provides:

“A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.”

In State v. Wells, 253 La. 925, 221 So.2d 50 (1969), this provision was interpreted to require an affidavit in all cases for a search warrant to issue:

“A comparison of this article with its source provisions (LRS 15:42-44) now leaves no doubt but that a search warrant can legally issue in this state only when an affidavit has been submitted to the judge and such affidavit recites facts which satisfy him, the judge, not the affi-ant, that probable cause exists for its issuance. That the affirming officer was aware of facts which, if alleged in his affidavit, would have shown probable cause is of no moment.
The clear and unmistakable language of Article 162 requires, as aforestated, that such facts be contained in the affidavit; it does not contemplate that the affiant should perform the function of determining what is probable cause. . . .” (Emphasis by the author). 253 La. at 931, 221 So.2d at 52-53.

A similar stance was taken in State v. Massey, 310 So.2d 557 (La.1975), where it was said:

“. . . The mere existence of probable cause will not even validate a search pursuant to a warrant unless the facts and circumstances which comprise the probable cause are contained in a written affidavit and presented to the neutral magistrate to whom the warrant application is made. . . . ” 310 So.2d at 560.

The prosecution has taken the position that such statements constitute mere dicta and that actual standard is to be found in Article I, § 5 of the Louisiana Constitution which requires only that probable cause be supported by oath or affirmation. Alternatively, the prosecution contends that the requirement of an affidavit expressed in Article 162 can be fulfilled by a sworn statement and that an “affidavit” may therefore be oral as well as written.

Although it is true that the authorities cited above involved different situations from that before us now (in Wells an affidavit was executed but failed to recite sufficient facts to support a finding of probable cause, whereas in Massey a warrantless search was involved), this fact by itself does not render these pronouncements incorrect statements of the law. Moreover, the purpose of the legislature’s requirement of affidavits is amply revealed in this case. Since no affidavit was available to establish probable cause, the prosecution summoned Judge McDonough to testify to the information given to him under oath by Sherry Keith. Even though Judge McDonough had issued the warrant only two months previously and had special reasons to remember this particular case (in that he knew Freddie W. Case, Jr., and at first suspected Mrs. Keith of having improper motives in informing on him), his testimony concerning the facts told him by Mrs. Keith suffers from the passage of time and the vagaries of memory. Like most persons asked to recount a past conversation, Judge McDonough could remember the substance of Sherry Keith’s statement but not some of the details: “Now seem like she told me there was a pipe there or something, but I may be wrong about that.” Yet it is precisely such details which take on crucial importance in an after-the-fact determination of whether probable cause existed for the warrant’s issuance. It would prejudice the rights of the defendant too substantially for the prosecution to be able to rely on the memory of the issuing magistrate, who in most instances will certainly remember less of the transaction than in the instant case, to establish the facts upon which probable cause is based for the warrant’s issuance.

The State’s argument that an oath or affirmation alone will suffice to support probable cause is based on Article I, § 5 of the Louisiana Constitution of 1974:

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”

This argument does not appreciate the relationship of the State Constitution to a statute. The Constitution establishes the outer limit of governmental action with respect to individuals; beyond a specified point the State may not interfere in the lives of the citizens in the exercise of the police power. For this reason a warrant may not issue on mere suspicion or, even if based on probable cause, if the probable cause is supported only by a statement not made under oath. Yet nothing in the Constitution prevents the legislature from increasing the limitations on governmental action. This the legislature has done by enacting Article 162 requiring that affidavits be submitted to a judge to decide whether probable cause exists to issue the search warrant. To argue that the intent of the law is best found in the State Constitution is to disregard the legislature’s authority to enact legislation to increase the rights held by the people under the Constitution.

Finally, the State argues that the requirement of an affidavit can be met by a sworn statement and that in effect Article 162 contemplates the use of an “oral affidavit.” A perusal of related provisions in the Code of Criminal Procedure reveals the fallacy of this position. Article 385 states: “An affidavit is a written accusation of crime made under oath and signed by the affiant.” (Emphasis added). Webster’s Seventh New Collegiate Dictionary (7th Ed. 1965) defines affidavit as “a sworn statement in writing made esp. under oath or on affirmation before an authorized magistrate or officer,” and the Random House Dictionary of the English Language (1967) defines the term as “a written declaration under oath made before an authorized official.” All other provisions of the Code which employ the term “affidavit” clearly envision from their context the affidavit as a written instrument. For example, Article 353 requires that an affidavit accompany an application for a writ of habeas corpus, whereas Article 27 requires an applicant for a peace bond to file an affidavit. Clearly an oral statement would not be efficacious in either situation. See also C.Cr.P. 14, 202, 327, 355, 382, 386 and 707.

We therefore conclude that the trial judge was in error to allow probable cause to be established in the absence of an affidavit, as required by Article 162 of the Code of Criminal Procedure.

Assignment of Error No. 2

The defendants’ second assignment is that the trial court erred in finding the description of the premises in the warrant to be sufficient.

Judge McDonough testified at the hearing on the motion to suppress that Sherry Keith told him that she had seen her sister smoking marijuana with some other people in Freddie Case’s trailer. The judge issued the warrant authorizing a search of “a mobile home owned by one Freddie Case located north of Yidalia near the main line levee.”

In fact, there were three trailers belonging to the Case family or relatives in the immediate area. Two trailers, one owned by Freddie W. Case, Jr., and the other by his father, Freddie W. Case, Sr., were parked only a few feet apart from one another (Mr. Case, Sr. testified that they were within spitting distance). A third trailer owned by Mrs. Case’s brother was somewhat removed from the others, being parked at a distance estimated at one to two city blocks from the Case trailers. No signs indicated the owners of the trailers. It appears from the testimony adduced at the hearing on the motion to suppress that Mr. Case, Sr.’s trailer was searched by the Sheriff’s Department rather than his son’s trailer. However, Mr. Case, Sr. stated that his son had complete freedom to use his fáther’s trailer, especially to entertain guests.

The State Constitution and the Code of Criminal Procedure require a search warrant to describe with particularity the person or place to be searched. La.Const. Art. I, § 5; C.Cr.P. 162. The reason for this rule of law has frequently been stated:

“The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient. United States v. Prout, 526 F.2d 380 (5th Cir. 1976); United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975); United States v. Melancon, 462 F.2d 82 (5th Cir. 1972). See also Wharton’s Criminal Procedure, § 166 at 343-346 (12th Ed. 1974).” State v. Cobbs, 350 So.2d 168, 171 (La.1977).

See also State v. Petta, 354 So.2d 563 (La. 1978); State v. Nejin, 140 La. 793, 74 So. 103 (1917).

When the deputies reached the location of the Case trailers, one trailer was dark and apparently vacant whereas the other trailer was lighted, and a party was evidently in progress within. The police searched the second trailer, which belonged to defendant Case’s father, and discovered the marijuana. From the facts adduced at the motion to suppress hearing, it appears that the correct trailer was searched. Mrs. Keith reported the marijuana use to Deputy Schiele in the evening of January 18 and the search was conducted by 10:30 p. m. of the same night. This time frame, when viewed in connection with Mr. Case, Sr.’s statement that his son had free use of his father’s trailer indicates that Case, Jr. was using his parent’s trailer to entertain his friends and that Mrs. Keith observed the marijuana smoking in the father’s trailer.

However, the fact that the correct trailer was searched does not terminate our analysis. Our law does not look to whether the correct premises were searched but rather to the sufficiency of the description of the place to be searched. In State v. Petta, supra, we discussed the requirement of a particular description of an error in street addresses and stated: “Such a discrepancy may indeed be fatal to the validity of a search warrant, in circumstances where the variance authorizes search of other premises than those actually searched.” 354 So.2d at 564. Under the description contained in the warrant, either of the Case trailers could have been searched. In fact, it is surprising that the trailer belonging to Mrs. Case’s brother was not searched since it stood alone and the deputies might have expected Mrs. Keith to mention that another trailer was parked almost flush with the one in which she observed the marijuana use.

Knowledge of the searching officers obtained from sources other than the warrant has sometimes been considered by this court in ruling on a description’s sufficiency. In State v. Chaffin, 324 So.2d 369 (La. 1975), the house to be searched was designated in the warrant as the second house from the corner rather than the fifth house. In finding the description sufficient, we noted that the defendant’s house had been under surveillance for some months and was actually known to the searching officers. In addition the contraband seized had been taken from the defendant’s car which had been properly described in the warrant. In State v. Lampkin, 253 La. 337, 218 So.2d 289 (1969), we accepted as sufficient a designation of the place to be searched as “premises of Clarence Lampkin and Barbara Fowler” because that place of residence was well known and the premises were the only ones owned by Lampkin and Fowler in the town of Ruston. Nothing in the present record indicates that the Case trailer had been under surveillance or that it was well known to anyone executing the warrant. Therefore, we must hold that the description of the property to be searched was not sufficient and that any evidence obtained under the warrant must be suppressed. State v. Tassin, 343 So.2d 681 (La.1977), State v. Paciera, 290 So.2d 681 (La.1974).

Assignment of Error No. 3

A third assignment of error by the defense concerns the trial court’s finding that the search warrant could be executed on Sunday despite the absence in the warrant of any express direction to this effect.

We need not reach this assignment because of our conclusion on the others, and because the error will not recur in this case.

Assignment of Error No. 4

The defendants assign as error the district court’s refusal to grant the motion to suppress on the grounds that the warrant was issued by a city court judge but was executed outside the city court’s jurisdiction.

Article 161 of the Code of Criminal Procedure permits a judge to issue a warrant authorizing a search and seizure within the territorial jurisdiction of the court. In State v. Carey, 256 La. 990, 240 So.2d 733 (1970), we held that a city court judge was authorized to issue warrants within the jurisdiction of his court. Accordingly, the issue is whether the jurisdiction of the Vida-lia city court extends into the wards in which the city of Vidalia is situated.

The State has argued in brief that Judge McDonough believed that his court had ward jurisdiction and had conducted his office with that view in mind. Moreover, the State places stress on the- large size of the Seventh Judicial District, which encompasses Catahoula and Concordia Parishes, and the inconvenience of going to Harrisonburg, some forty-two miles from Vidalia, to get search warrants from the district judge. However, these practical considerations cannot alter the terms of Act 516 of 1974 which created the Vidalia City Court. Section 1 of the act provides that the proposition on the ballot in the special election to create the city court should read: “Shall the city court of Vidalia be created having territorial jurisdiction within the territorial boundaries of the city of Vidalia?” Section 7 of the act emphasizes the limited jurisdiction of the Vidalia City Court by providing for an expansion of its territorial jurisdiction if, through judicial determination, the more limited jurisdiction was found invalid:

“If at any time in the future there is a judicial determination that the territorial jurisdiction of the city court of either Ferriday or Vidalia is invalid on the basis that it should have included all the territory in the ward or wards in which the town is located, then the territorial jurisdiction of said city court shall be extended to include all the territory of the ward or wards within which the town is located.”

It appears that the city court judge did not have the authority to issue a warrant to search an area which the State admits lies outside the city’s territorial boundaries. Therefore we find that this assignment of error also has merit.

Accordingly, the decision of the district court denying the motion to suppress is reversed and the case is remanded to the district court for proceedings consistent with the views expressed in this opinion.

SUMMERS, J., concurs.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Royal BANKS.
    No. 61895.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Wilson C. Krebs, Patterson, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boudreaux, Jr., Edward M. Leonard, Jr., Walter J. Sen-ette, Jr., Asst. Dist. Attys., for plaintiff-ap-pellee.
   DENNIS, Justice.

On February 27, 1976 defendant Royal Banks was arrested by two officers of the St. Mary Parish Sheriff’s Office for reckless operation of a vehicle. During the course of the arrest, marijuana was found in the car the defendant was driving. The marijuana found consisted of a handrolled cigarette on the floor of the driver’s side of the vehicle and a partially smoked marijuana cigarette found in the ash tray of the vehicle along with what is known as a “roach holder.” The evidence was seized and the defendant was arrested for possession of marijuana. The State charged the defendant as a second offender for possession of marijuana, La.R.S. 40:966(D)(2). Defendant was found guilty as charged and sentenced to two years at hard labor.

Defendant relies upon four assignments of error for reversal of his conviction and sentence. Because we find that assignment of error number three relating to the denial of his motion to suppress the evidence seized from defendant’s car at the time of the arrest has merit, we do not reach the validity of his other assignments.

While driving an unmarked vehicle on the afternoon of February 27,1976, police Officers Smith and Kahl observed a yellow Oldsmobile crossing the center line of the highway and exceeding the speed limit. These officers chased the vehicle and had its driver pull well off the shoulder of a four-lane highway. On stopping defendant, the officers stepped out of their vehicle and summoned defendant to the back of his car. Officer Smith placed defendant under arrest for reckless operation and advised him of his rights. After the defendant was searched, handcuffed and placed in the back of the police vehicle, Officer Kahl “proceeded to the subject’s vehicle to transport it to Franklin, instead of leaving it on the side of the road.” At this time, without yet entering the vehicle, the officer observed a pistol on the front seat and upon further investigation, he observed what appeared to be a marijuana cigarette lying on the floor of the front left side of the vehicle. As Officer Kahl called Officer Smith’s attention to his findings, Officer Smith walked up to the vehicle and saw Officer Kahl’s hand coming from the floor holding a handrolled cigarette. Another partially smoked marijuana cigarette plus a roach holder was found in the car ashtray. Defendant was then arrested for possession of marijuana.

The Fourth Amendment and the Louisiana Constitution of 1974, Art. I, § 5 prohibit unreasonable searches and seizures. Absent one of the narrow exceptions to the requirement of a search warrant, warrant-less searches and seizures are unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 So.2d 468 (La.1977). In order for evidence obtained without a search warrant to be admissible at trial, the State bears the burden of proof in showing that the search and seizure were justified under one of the narrow exceptions. State v. Braud, 357 So.2d 545 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

The State argues that the seizure of the marijuana in the instant case was justified under the plain view exception to the warrant requirement.

In Coolidge v. New Hampshire, supra, the United States Supreme Court explained the circumstances under which the plain view doctrine is of significance:

“It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
U * * *
“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” 91 S.Ct. at 2037-38.

In sum, the conditions necessary for the applicability of the plain view doctrine are: (1) there must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is inadvertently discovered, and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Parker, 355 So.2d 900 (La.1978); State v. Fearn, supra. See also, State v. Meichel, 290 So.2d 878 (La.1974).

Under the facts of the instant case we do not find that the first requisite has been adequately met. The State has failed to show that the police officers had prior justification for approaching defendant’s car after his full custodial arrest. The record indicates that defendant’s automobile was stopped for a traffic violation. The vehicle had been pulled over on the right shoulder of the highway. The driver left the vehicle, walked back towards the officers’ car, was arrested, searched, handcuffed and placed in the rear of the police car. Nevertheless, the State contends that the intrusion was justified because the officer intended to drive the defendant’s car back to the police station for safekeeping. There is nothing in the record, however, which indicates that such procedure was necessary.

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court upheld police authority to seize and remove from the streets vehicles impeding traffic or threatening public safety. In that case a car had been lawfully impounded and the search was made pursuant to standard police procedures which had as their purpose the inventorying and safeguarding of the vehicle’s contents. Following the reasoning of Opperman, we held in State v. Jewell, 338 So.2d 633 (La.1976), that true inventory searches of motor vehicles impounded for reasonable cause do not offend the constitutional prohibition against unreasonable governmental search or seizure. However, we noted that we were not faced with a situation where because of a traffic violation, arresting officers plan to impound a vehicle despite the fact that there was no necessity to do so.

Jewell and more recent cases have cautioned that law enforcement officials can not use the procedure of impounding and conducting an inventory search as a subterfuge for a warrantless search without probable cause for the primary purpose of seizing evidence for criminal proceedings. State v. Schmidt, 359 So.2d 133 (La.1978); State v. Gaut, 357 So.2d 513 (La.1978); State v. Rome, 354 So.2d 504 (La.1978); State v. Jewell, supra. See also, Annotation, Lawfulness of “Inventory Search” of Motor Vehicles Impounded by Police, 48 A.L.R.3d 537, 544 (1973).

Various factors indicate that the State has not established that the police officers were justified in approaching the car to take it into custody. These factors include the failure of the officers to ask the defendant if he wished to leave the ear parked on the shoulder or make other arrangements, the failure of the officers to call a tow truck to take defendant’s car to a location for safekeeping, and the officers’ failure to ask defendant if his car contained any valuables which required the ear to be moved from its location. State v. Schmidt, supra. See also, State v. Hargiss, 288 So.2d 633 (La.1974). Because the State has failed to meet the first requisite of the plain view doctrine, that doctrine can not apply to the evidence seized in the instant case.

Accordingly, the warrantless seizure of evidence from defendant’s car violated defendant’s rights under the Fourth Amendment and those afforded by Article 1, § 5 of the Louisiana Constitution of 1974. The defendant’s conviction and sentence are reversed, the motion to suppress is granted, and the case is remanded for a new trial consistent with the laws and views herein expressed.

SANDERS, C. J., dissents.

      . Assignment No. 1 assigns as error the trial court’s failure to release defendant at a preliminary hearing scheduled to be heard on March 17, 1976 and continued because the police had not yet sent the marijuana to the crime lab for analysis. In assignment number two defendant argues that the trial court erred in denying a motion to suppress the evidence due to an incomplete chain of custody. Assignment No. 4 requests this Court to hold that the jury verdict is contrary to the law and evidence on the face of the record and further requests this Court to review the sentence imposed.

      . The two police officers were sheriffs deputies principally involved in intelligence operations in St. Mary Parish, dealing primarily in vice and narcotics work. One of the officers had previously arrested the defendant resulting in his first conviction for possession of marijuana.

      . In Opperman, respondent’s automobile had been impounded for multiple traffic violations after a citation had been issued warning respondent that his vehicle was parked in a restricted zone.

      . Even if department regulation mandatorily required the officer to take the vehicle into custody or to make an inventory search, this would not make the seizure of evidence valid. “Unconstitutional searches cannot be constitu-tionalized by standardizing them as part of normal police practice.” State v. Jewell, 338 So.2d at 640.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Charles MARRERO.
    No. 61901.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Arthur A. Lemann, III, Supervising Atty., New Orleans, Peter Franklin, Philip A. Costa, Student Practitioners, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was charged by bill of information with possessing a firearm after having been convicted of a felony, a violation of R.S. 14:95.1. After a jury trial, defendant was found guilty as charged and was sentenced to eight years at hard labor. On this appeal of his conviction and sentence, defendant relies on seven assignments of error.

ASSIGNMENT OF ERROR NO. 1

In a motion to quash defendant argued that he was not guilty of any offense set forth in R.S. 14:95.1, the pertinent part of which reads:

“A. It is unlawful for any person who has been convicted of . . . any violation of the Uniform Controlled Dangerous Substances Law which is a felony . to possess a firearm . . . .”
(emphasis added)

Defendant contends that his conviction of distribution of heroin in 1971 is not a conviction of a felony under the Uniform Controlled Dangerous Substances Law because he was convicted in 1971 under the Uniform Controlled Dangerous Substances Act of 1970 which differs in significant respects from the Uniform Controlled Dangerous Substances Law enacted in 1972. Defendant relies on R.S. 14:3 to argue that R.S. 14:95.1 must be strictly construed to refer only to felony convictions under the Uniform Controlled Dangerous Substances Law of 1972.

Prior to a 1970 amendment, R.S. 40:961 through 40:984 were referred to as the Uniform Narcotics Drug Law. These statutes were amended and re-enacted as the Uniform Controlled Dangerous Substances Law by Acts 1970, No. 457, § 1 to contain R.S. 40:961 through 40:990. Louisiana Revised Statute 40:990 of the 1970 statute provided:

“This subpart may be cited as the Uniform Controlled Dangerous Substances Act.”

By Acts 1972, No. 634 § 1, R.S. 40:961 through 40:1056 were amended and re-enacted to contain R.S. 40:961 through 995. By implication, former R.S. 40:961 through 1056 were repealed. Louisiana Revised Statute 40:995 as amended in 1972 provides:

“This part may be cited as the Uniform Dangerous Controlled Substances Law.”

Defendant argues that because former R.S. 40:990 provided that the statutes may be cited as the Uniform Controlled Dangerous Substances Act, a conviction in 1971 is not a conviction under the Uniform Controlled Dangerous Substances Law as required by R.S. 14:95.1.

Defendant’s argument is without merit. In the preamble to Acts 1970, No. 437, § 1, the legislature designated the act the Uniform Controlled Dangerous Substances Law; similarly, the title of the act was the Uniform Controlled Dangerous Substances Law. By indicating that it may be cited as the Uniform Controlled Dangerous Substances Act, the legislature’s purpose in R.S. 40:990 seems to have been simply to provide a short title for the statute. It was designated in its very preamble and title as “Law.” The reference in R.S. 14:95.1 to “Law” surely applies to the 1970 statute as well as to the one of 1972. Even if the word “law” were to be found nowhere in the 1970 statute, we would hesitate to find merit in this assignment because the same restrictions and penalties for distribution of heroin were provided under the 1970 “Act” as under the 1972 “Law” and defendant could not be heard to argue that R.S. 14:95.1 making it unlawful for a person to possess a firearm who has been convicted of a violation of the Uniform Controlled Dangerous Substances Law does not apply to his conviction under the 1970 statute.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in denying his motion to suppress the evidence. At the hearing on the motion, defendant moved that the court shift the burden of proof to the state to show that the search of defendant’s bedroom and the seizure of the gun were valid. The court denied the motion and defense counsel objected. In the assignments of error submitted to the trial judge, however, defendant assigned as error only the denial of the motion to. suppress and not the trial judge’s refusal to shift the burden of proof.

Louisiana Code of Criminal Procedure Article 844 requires a party to designate those errors which are to be urged on appeal. Article 920 limits the scope of appellate review to errors designated in the assignments of error and those discoverable by a mere inspection of the pleadings. Because defendant failed to urge as error the trial judge’s denial of the motion to shift the burden of proof, this issue argued in brief is not before this Court for review.

The merits argument in support of this second assignment is that the entry into and the search of defendant’s apartment was illegal, rendering the gun thereafter found inadmissible. Defendant contends that because the police officers did not announce their authority and purpose before entering his apartment, his arrest was illegal and the evidence seized on the premises inadmissible.

The police officers first went to defendant’s apartment after his ex-girlfriend complained that defendant had beaten on her door and threatened her. When the officers arrived, three men were leaving the apartment and one was standing in the door. When questioned, all four men denied being Charles Marrero. Defendant claimed to be Lawrence Marrero and said that his brother Charles was in California. The officers then returned to defendant’s former girlfriend’s house and arranged for her to telephone Charles Marrero and to keep him on the line so that she, and they, could identify him. When the officers returned to defendant’s apartment, they knocked on the door, heard him respond, “Come in,” and entered through the unlocked door. The officers found defendant on the bed, talking on the telephone. They took the phone from him and had his former girlfriend identify him as Charles Marrero.

An officer is required to announce his authority and purpose when he breaks “open an outer or irr.er door or window of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where the person to be arrested is or is reasonably believed to be, if he is refused or otherwise obstructed from admittance.” He “need not announce his authority and purpose when to do so would imperil the arrest.” La.Code of Crim.Pro. art. 224. In this instance, the officers did not make a forcible entry into the defendant’s apartment but entered with his consent. Though they did not identify themselves as police officers before entering and defendant only learned of their identity when he saw their uniforms, the officers used no subterfuge or force to gain entry. Instead, they entered with the express consent of the defendant. Consequently, there was no illegal entry and the ensuing arrest was not illegal on that account.

Defendant also argues that the search of his bed and nightstand after he was arrested was not valid as a search incident to a lawful arrest because the search went beyond the area of his “immediate control.” Because the officers searched the mattress and found the gun after he was handcuffed, defendant contends the search was illegal.

It is not clear from the testimony at the hearing on the motion to suppress whether the defendant was in fact handcuffed before the officers searched in and around the bed. One officer testified that he told defendant he was under arrest, searched the bed and then found the gun. Only after the search did he handcuff defendant. The second officer, however, stated that after removing defendant from the bed by force, they handcuffed him, then searched the bed and the nightstand nearby.

The search incident to a lawful arrest approved in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) is justified by the need to protect the police officer and to prevent frustration of an arrest. Under Chimel, an officer may search the person arrested for weapons and also the “area into which an arrestee might reach in order to grab a weapon or eviden-tiary items.” The Court in Chimel construed the phrase “within his immediate control” to mean “the area from within which he might gain possession of a weapon or destructible evidence.”

Even if the defendant in this case had been handcuffed before the officers searched and found the gun, it appears that at the time of the search, defendant was standing very near the bed and showed considerable reluctance to move from it. The arrest, removal from the bed, handcuffing, and search all occurred within moments of one another. Defendant’s being handcuffed did not insure that he could not reach for and grab the weapon. Consequently, the search did not extend beyond the area from which defendant might have gained possession of the gun and was therefore not illegal.

ASSIGNMENTS OF ERROR NOS. 4 AND 8

In these related assignments, defendant contends that the trial judge erred in denying his motion requesting the voting records of the prospective jurors in prior criminal trials and in not allowing counsel to question the jurors on voir dire about their prior jury service. After his motion requesting access to the voting records was denied, defense counsel inquired on voir dire whether any jurors had served on a jury that month. After one juror responded that he had, the trial judge ruled that counsel could not ask when the juror had served but only whether he had prior experience. Defense counsel then asked if that jury had reached a verdict. The trial judge ordered the juror not to answer the question and found it irrelevant and immaterial. In his per curiam, the trial judge concluded that under State v. Holmes, 347 So.2d 221 (La.1977), the state was not required to disclose the information because the defendant could obtain it from the Office of the Indigent Defender Program. In brief, defendant argues that the records maintained by the Office of the Indigent Defender Program are not adequate substitutes because that office can not accumulate comprehensive juror verdict information inasmuch as many defendants are represented by lawyers other than those assigned to the Office of the Indigent Defender Program.

In State v. Wright, 344 So.2d 1014 (La. 1977), this Court pretermitted the issue of whether a list of the prospective jurors’ voting records was a “work product” and held that it was discoverable only if the defendant could demonstrate denial of the list would prejudice the preparation of his case or result in hardship or injustice. To make such a showing, defendant would have to establish that he could not obtain the information from other sources and that the state intended to use it in selecting the jurors. If the defendant were to make the necessary showing, he should either be given the information before voir dire or be allowed to question the prospective jurors about their prior service.

In the case at hand, defendant alleges that he was denied both access to the list and the opportunity to question the jurors about their prior service. Although defendant alleged in his pre-trial motion that the information was not otherwise available and that the state intended to use it in selecting the jurors, defendant did not demonstrate that the state in this case did in fact enjoy that non-reciprocal advantage. On the trial of the motion defendant did not establish that the state intended to use the information. Nor did he show during voir dire that the state had used or was using such a list.

Although the general right to question jurors about their prior service was recognized in Wright, decided April 11, 1977, it was not until State v. Holmes, supra that this Court specifically overruled jurisprudence which had restricted voir dire examination. The trial of this case was held June 9, 1977, after Wright but before Holmes. However, because the defendant failed to make at least oné of the requisite showings under Wright — that the state intended to or actually had used the list — the trial judge did not err in denying the motion for the list and in restricting the scope of the voir dire examination.

ASSIGNMENT OF ERROR NO. 6

In this assignment, defendant contends that the trial judge erred in permitting the state to allege in the bill of information more than one of defendant’s prior convictions for a felony enumerated in R.S. 14:95.1. He contends that because R.S. 14:95.1 requires only that the defendant have been convicted (one such conviction being sufficient), the listing of the two pri- or convictions was reversible error.

An essential element of the crime defined in R.S. 14:95.1 is a defendant’s prior conviction of one of the enumerated felonies. In this case, defendant was twice convicted of distribution of heroin in 1971. A prior conviction is an essential element of the crime defined in R.S. 14:95.1 and allowing the state to allege more than one previous conviction in the bill of information is not reversible error. State v. Sanders, 357 So.2d 492 (La.1978).

ASSIGNMENTS OF ERROR NOS. 5 AND 13

Defendant contends that the trial judge erred in allowing the state to amend its answer to the request for a bill of particulars on the morning of trial. The defendant on March 1, 1977 filed an application for a bill of particulars requesting any in-culpatory statements made by the defendant and intended to be used at trial by the state. On March 21, 1977, the state responded that it had no inculpatory statements. On the morning of trial, however, the state moved to orally amend the answer to the bill of particulars to include a possibly inculpatory statement by the defendant to the arresting officer on the date of his arrest that he was not Charles but Charles’ brother Lawrence Marrero. The trial judge, over defense counsel’s objection, allowed the proposed amendment. In brief, the state contends that the statement is not inculpatory and that the amendment in no way prejudiced the defendant in the preparation of his defense.

Regardless of whether this statement, unrelated to the substance of the offense charged but indicating evasiveness on defendant’s part, is properly denominated in-culpatory, we do not find that defendant was prejudiced by the state’s having waited until the morning of trial to amend the answer to the bill of particulars in this respect. Consequently, we will not reverse defendant’s conviction on this account.

Decree

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

Affirmed.

      . But see the concurring opinion in Sanders, supra.