author: DIXON, Justice.

text:
    STATE of Louisiana v. Mose M. BIAS, Jr.
    No. 60471.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.

      Preston N. Aucoin, Ville Platte, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Mose M. Bias, Jr. was charged by bill of information with two simple burglaries and thefts of a building owned by Ollie Deville, Jr., committed on April 11 and 26, 1976. Defendant was tried on only the burglary counts by a jury, and was acquitted of the April 11 burglary and convicted of the April 26 burglary. Defendant was sentenced to seven years at hard labor. On appeal defendant relies on four assignments of error for reversal of his conviction and sentence.

Defendant raises a substantial issue on Assignments of Error Nos. 3 and 4. He moved to quash the completed petit jury panel on the basis that the State’s exercise of peremptory challenges resulting in the virtual elimination of black jurors denied him his constitutional right to due process. Defense counsel informed the court that he was prepared to go forward with proof of a systematic exclusion of blacks with documentary evidence and the testimony of subpoenaed witnesses. However, the judge refused to allow defendant to make his proffer and, without hearing any evidence in that regard, denied defendant’s motion.

This court has consistently reiterated its adoption of the views expressed in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), wherein the United States Supreme Court held that an accused is not denied equal protection when the State, through the use of peremptory challenges, prevents blacks from serving on the jury unless he can prove systematic exclusion over a period of time. See, e. g., State v. Trudell, 350 So.2d 658 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Bennett, 341 So.2d 847 (La.1977).

Where defendant is able to establish a prima facie case of such systematic exclusion, the burden shifts to the State to show that no discrimination was practiced. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); State v. Brown, 319 So.2d 409 (La.1975). Defendant must not be denied the opportunity to make his pri-ma facie showing.

The State in brief points out that one juror selected for the panel who did sit in judgment of the case is a member of the Negro race. Thus, it argues, the presence of that black juror on the panel is conclusive proof that there was no systematic exclusion of blacks in this case. This fact alone cannot preclude defendant from making a showing that blacks are systematically excluded in disproportionate numbers and that only a token selection of blacks has been made over a period of time.

We find that the trial judge erroneously denied defendant the opportunity to prove the systematic exclusion of black jurors through the use of peremptory challenges by the State over a period time.

The remaining assignments of error are without merit. The evidence fully supports the ruling of the trial judge on the admissibility of the confession. The reply on voir dire examination by the prospective juror Guillory that he passed the store on the morning defendant was caught in the store did not justify a mistrial, in view of the admonition by the judge and the full explanation by Guillory. The ruling on the motion for new trial was correct.

Because no other reversible error is disclosed, and because the error noted might be obviated by an evidentiary hearing, we refrain from reversing the conviction, and will remand for a hearing. State v. Simmons, 328 So.2d 149 (La.1976).

For the reasons assigned, the conviction and sentence are affirmed, except that the case is remanded to the district court for an evidentiary hearing on the issue of systematic exclusion of blacks through the exercise of peremptory challenges by the prosecutor. If the trial court finds for the defendant on this .issue, it shall grant the defendant a new trial. The right to appeal the trial judge’s ruling is reserved to the defendant.

      . The State argues that defendant’s motion was untimely and therefore was properly denied by the trial judge. C.Cr.P. 535(B)(1) provides that a motion to quash based upon an improperly drawn, selected, or constituted general or petit jury venire must be filed at least three judicial days before trial or, with the court’s permission, any time before trial begins. Defendant’s motion was filed on the second day of trial after conclusion of voir dire and selection of the jury panel. The motion to quash was not aimed at quashing the venire but was intended to quash the selected panel. Grounds for such a motion do not become apparent until after the trial has begun and the jury has been empaneled. Therefore, the time limitation expressed in article 535(B) is inapplicable to the instant case. The motion was timely presented to the court.

      . Cf. State v. Bastida, 310 So.2d 629 (La.1975) (mere fact one black was selected for jury panel did not prevent defendant from attempting to show a systematic exclusion; defendant, however, failed to make a prima facie showing).


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Mitchell SCHWARTZ.
    No. 60360.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.

      Broderick A. Bagert, Sr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Patrick J. Fanning, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Mitchell Schwartz, was charged by bill of information with eight offenses of possession with intent to distribute a controlled dangerous substance. La.R.S. 40:967. Defendant was found guilty as charged on each count by a jury and was sentenced to serve thirty years at hard labor on each of counts 1, 2,4, 5, and 6, with sentences to run concurrently, and to serve ten years at hard labor on each of counts 3, 7, and 8, with sentences to run concurrently with each other but consecutively with the thirty-year sentences on the other counts. On appeal, defendant relies upon six assignments of error for reversal of his conviction and sentence. Finding reversible error in Assignments 16 and 27, we pretermit consideration of the other assignments.

ASSIGNMENTS NOS. 16 and 27

The State, in its case in chief, introduced evidence through the testimony of Gary Chanson of a series of drugstore robberies allegedly committed with the assistance of the defendant. Specifically, Chanson testified that the defendant supplied him with information on the drugstore security systems, provided him with tools with which to gain entry through the roofs of the stores, and, on at least one occasion, served as a driver to and from the drugstore. For the defendant’s part, Chanson testified that he was given a share of the drugs taken from the stores. Defendant’s motion to exclude the other crimes evidence and his objection to the use of the evidence without prior notice to the defense were denied by the trial court.

The defendant contends that the evidence should not have been admitted because it does not fit within one of the exceptions to the general prohibition against the use of other crimes evidence and because it was highly prejudicial to his case. The State gave no notice of intent as required by State v. Prieur, 277 So.2d 126 (La.1973); it argues, however, that the burglaries formed part of the “res gestae” of the crime and thus were properly admitted into evidence.

Louisiana Revised Statutes 15:447 and 15:448 provide:

“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.
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

In State v. Prieur, 277 So.2d 126 (La.1973), this court, while noting the general inadmissibility of evidence of other crimes, recognized that crimes which form part of the “res gestae” of the charged offense constitute an exception to the rule. In discussing the meaning of res gestae in relation to the admissibility of evidence of extraneous offenses under Prieur, Professor Pugh has observed:

“ * * * The meaning of the term res gestae in this area is unclear. It seems clear, however, that its meaning here is by no means necessarily the same as that in the hearsay area. Therefore, cases holding out-of-court declarations admissible under the so-called res gestae exception to the hearsay rule are not necessarily controlling here. In light of the purposes behind the Prieur guidelines, it is believed that for evidence of the other crime to qualify as res gestae under Prieur, the other crime must be so closely connected that the indictment or information as to the instant crime is deemed to carry with it notice as to the other crime as well. Although the court does not talk in terms of this test, it appears to be requiring a very close relationship indeed.” 35 La.L.Rev. 525, 526-7 (Footnotes omitted.)

This Court has, in recent cases, required a very close connexity between the charged offense and the offenses sought to be introduced under the res gestae exception. See, State v. Mitchell, 344 So.2d 1026 (La.1977); State v. Brown, 340 So.2d 1306 (La.1976); State v. Owens, 338 So.2d 645 (La.1976); State v. Flowers, 337 So.2d 469 (La.1976); State v. Curry, 325 So.2d 598 (La.1976); State v. Mays, 315 So.2d 766 (La.1975); State v. Matthews, 292 So.2d 226 (La.1974).

In the instant case, the drugstore robberies in which the defendant allegedly participated occurred some two months pri- or to the date of the charged offenses listed in the Bill of Information. The burglaries were not so closely connected with the offense of possession of narcotics with intent to distribute that the Bill of Information as to the instant crime carried with it notice of the other crimes as well. Nor were the other crimes closely related in time or location to the charged offense. Further, the detailed evidence of the planning and commission of the burglaries involved in Chanson’s testimony had no relevance to the necessary elements of the charged offense. The inadmissible evidence of the burglaries served primarily to depict the defendant as one who had led the young Chanson into a career of burglary. Evidence which serves only to portray the defendant as a “bad man” and which has no real probative value is never admissible. State v. Prieur, supra. Therefore, it was clearly reversible error to allow the State to present the highly prejudicial evidence of the unrelated drugstore burglaries in this prosecution for possession of drugs with intent to distribute.

Accordingly, the defendant’s conviction and sentence are reversed and the case is remanded for a new trial.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.

      . Defendant’s other assignments of error have not been briefed on this appeal and are deemed abandoned.

      . Assignment No. 18, however, deserves comment. It questions the wisdom of our recent statements that a police officer witness is not a “court official” whose reference to inadmissible other crimes evidence mandates a mistrial under La.C.Cr.P. art. 770. State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Hardy, 344 So.2d 1018 (La.1977). The instant case demonstrates that these decisions were unsound insofar as they reflect the notion that police officers should be held to a lesser standard than judges or prosecutors because they are less familiar with rules of evidence. Officer Dabdoub, whose testimony gratuitously implicated the defendant in other crimes, has given similar “unresponsive answers” in other cases which have been reviewed by this court. The recurrence of such testimony by experienced and knowledgeable witnesses like Officer Dabdoub establishes too clear a pattern for this court to continue to excuse the highly prejudicial unresponsive remarks as being inadvertent, unplanned or unexpected by prosecuting attorneys.


text:
    STATE of Louisiana v. Louis SUTFIELD and Farris Phillips.
    No. 60520.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.

      Matthew B. Collins, Jr., Student Practitioner, Arthur A. Lemann, III, Supervising Atty., New Orleans, Loyola Law School Clinic, for Farris Phillips, defendant-appellant.
    Bernard S. Dolbear, New Orleans, for Louis Sutfield, defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On June 3, 1974 four men entered Harry’s Pirate’s Den Bar in the New Orleans French Quarter and robbed the owner at gunpoint. Subsequently, defendants Sut-field and Phillips and three other men were arrested and charged with the crime. The State entered a nolle prosequi as to two of the other men and allowed the third to plead guilty to a reduced charge in exchange for testimony against Sutfield and Phillips. Defendants Sutfield and Phillips were jointly tried and convicted by a jury of armed robbery, La.R.S. 14:64, and each was sentenced to forty-five years at hard labor. On appeal defendants rely upon numerous assignments of error. We reverse their convictions and sentences on the basis of one assignment, but we note probable reversible error in connection with several of the other assignments.

ASSIGNMENT OF ERROR NO. 8 (Sut-field)

ASSIGNMENTS OF ERROR NOS. 9 and 10 (Phillips)

Defendants urge that it was reversible error to admit testimony to show that they were narcotic addicts, and to deny their motions for a mistrial following the introduction of this evidence, in that the prejudicial effect of the testimony outweighed any probative value it may have had to establish motive.

In his opening statement the prosecuting attorney informed the jury that the motive for the armed robbery in this case was to obtain money with which to purchase narcotics. During the State’s case-in-chief its narcotics expert testified that at the time of Phillips’ arrest his arm bore needle marks indicating extensive heroin usage. This witness’ testimony also included hearsay information obtained from a confidential informant that Phillips and Sutfield had been involved in several recent armed robberies.

The long established rule forbids the prosecution, unless and until the accused gives evidence of his good character, from initially introducing evidence of the bad character of the accused, including evidence of his other criminal acts. Accordingly, the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character. McCormick on Evidence, § 190 (Cleary ed. 1972); Wigmore on Evidence, §§ 55, 57 (3d Ed. 1940).

Aside from related offenses admissible as part of the res gestae, and convictions admissible for impeachment purposes, Louisiana’s statutes provide for only three “other purposes” for which evidence of other criminal acts may be offered — evidence of acts relevant to show intent, knowledge or system. State v. Prieur, 277 So.2d 126 (La.1973); See, La.R.S. 15:445, 446. In accord with general authority, See, McCormick § 190, Louisiana Courts also have admitted such evidence for purposes other than those listed in the statutes, e. g., identity, State v. Moore, 278 So.2d 781 (La. 1973); motive, State v. Dowdy, 217 La. 773, 47 So.2d 496 (1950); evidence of criminal acts of the accused, constituting admissions by conduct, intended to obstruct justice or avoid punishment for the present crime, State v. Burnette and Granger, 353 So.2d 989 (La.1978) (Docket # 60,053). See, Comment, Other Crimes Evidence in Louisiana — To Show Knowledge, Intent, System, etc. in the Case in Chief, 33 La.L.Rev. 614 (1973).

However, the responsibility of the trial court is greater than that of merely determining whether the particular evidence of other crimes does or does not fit in one of'the approved classes. The underlying policy of protecting the accused against unfair prejudice demands that (1) before the evidence is admitted at all, the court must determine that there is clear and convincing evidence of the commission of the other crime and of defendant’s connection therewith; and (2) the trial judge must balance all the pertinent factors and exclude the other crimes evidence, even if independently relevant, when its probative value is outweighed by its prejudicial effect. State v. Burnette and Granger, supra; State v. Prieur, supra.

We recently noted that a clearly erroneous decision on this question of balancing probative value against danger of prejudicial effect will be corrected on appeal as an abuse of discretion. State v. Burnette and Granger, supra. In the instant case we are called upon to rectify such a clearly erroneous ruling.

The only basis of probative value for the other crimes evidence suggested by the State is that “a large number of robberies committed in the New Orleans area are prompted by an addict’s need for funds to support his expensive habit.” Apparently, the State would concede that a large number of robberies are also committed by non-addicts, and perhaps that there are a sizea-ble number of addicts who do not commit robberies. Therefore, even if we assume that the State’s assertion can be reliably documented, it would establish at best an extremely tenuous relationship between the defendants and the particular crime on trial.

In order to have independent relevance, the motive established by the other crimes must be more than a general one, such as gaining wealth, which could be the underlying basis for almost any crime; it must be a motive factually peculiar to the victim and the charged crime. See, People v. Molineaux, 168 N.Y. 264, 61 N.E. 286 (1901); Comment, Other Crimes Evidence in Louisiana — To Show Knowledge, Intent, System, etc. in the Case in Chief, 33 La.L. Rev. 614 (1973); Comment, Admissibility of Prior Criminal Acts as Substantive Evidence in Criminal Prosecutions, 36 Tenn.L. Rev. 515 (1969). Cf. McCormick, § 190, n.44. Evidence of drug addiction to show a motive for illegally obtaining funds clearly establishes only a general motive. Even where it is shown that an addicted defendant’s wealth and income are not sufficient to maintain his habit, no more than a general motive to commit any one of many types of crime involving a myriad of potential victims has been shown. Without additional evidence indicating a motive to commit the particular crime involving the particular victim, heroin addiction should not be admitted to prove motive. Its tenuous probative value is far outweighed by its tendency to incite a jury to resolve the issue of guilt or innocence on a defendant’s character rather than on proof of the essential elements of the crime. Christian v. City of Tuscaloosa, 53 Ala.App. 81, 297 So.2d 405 (1974); People v. Bartlett, 256 Cal.App.2d 787, 64 Cal.Rptr. 503 (4th Dist. 1967); Baffuto v. State, 187 So.2d 79 (Fla.Ct.App.1966).

The evidence of narcotic addiction had little, if any, relevance for a purpose other than to show a probability that the defendants committed the crime on trial because they were men of criminal character. Any probative value of this evidence was clearly outweighed by the danger of its prejudicial effect upon the jury. Accordingly, we find that these assignments contain reversible error.

We will briefly address other meritorious assignments in an attempt to insure that they will not be repeated on re-trial.

Phillips’ assignment number 11 has reversible merit because he correctly urges that the in-court identification of him made by State’s witness Thomas Graham was the product of an impermissibly suggestive out-of-court one picture photographic show-up procedure, which followed the witness’ previous failure to identify the defendant under more reliable identification procedures. The record does not demonstrate a reliable basis for the admissibility of Graham’s identification testimony when all of the factors to be considered are weighed against the corrupting effect of the suggestive identification. See, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Phillips’ assignments numbers 7, 8,19 and 21 are potentially meritorious because they correctly point out that the State was improperly allowed to display and use mug shots of questionable admissibility in examining witnesses and in presenting closing arguments to the jury without seeking to introduce them into evidence.

Phillips’ assignments numbers 5 and 6 contain potential merit. An experienced police officer witness made repeated indirect references to Phillips’ prior criminal record by telling the jury that a photograph used to identify the defendant as a suspect bore a police bureau of identification number. Under these circumstances the trial judge may have abused his discretion in not granting the defendants’ motion for a mistrial. See, State v. Schwartz, 354 So.2d 1332, n.2 (La.1978).

Another group of assignments, Sut-field’s number 4 and Phillips’ number 4, also present potentially reversible error.» During the voir dire examination defendants were prevented from asking three prospective jurors who served previously during the same term what their individual verdicts had been. While the trial court has discretion, under Code of Criminal Procedure article 786, to limit the scope of voir dire, wide latitude must be given for a defendant to intelligently exercise his constitutional right to make peremptory challenges and challenges for cause. La.Const. art. 1, § 17; State v. Holmes, 347 So.2d 221 (La.1977). In light of our recent decisions in this area, these assignments potentially have merit. However, the present record is inconclusive as to the defendants’ inability to obtain the information available to the prosecuting attorney. See, State v. McGhee, 350 So.2d 370 (La.1977); State v. Holmes, 347 So.2d 221 (La.1977); State v. Wright, 344 So.2d 1014 (La.1977). See also, State v. Singleton, 352 So.2d 191 (La.1977); State v. Rey, 351 So.2d 489 (La.1977).

For the foregoing reasons, defendants’ convictions and sentences are reversed and the case is remanded for a new trial in accordance with the views expressed in this opinion.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.

      . “ * * * [T]he problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other crimes evidence in the light of the issues and the other evidence available to the prosecution, the con-' vincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.” (Footnotes omitted.) McCormick, § 190, p. 453.

      .“ * * * The factors to be considered are set out in Biggers. 409 U.S. [188], at 199-200, 93 S.Ct. [375], at 382 [34 L.Ed.2d 401]. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, 432 U.S. 98 at 114, 97 S.Ct. 2243 at 2253, 53 L.Ed.2d 140 at 154. See also, State v. Guillot, 353 So.2d 1005 (La.1977) (Docket # 60,151).

      . See, State v. Jones, 283 So.2d 476 (La.1973); The Work of the Louisiana Appellate Courts for the 1973-74 Term: Evidence, 35 La.L.Rev. 525, 529 (1975); Annotation, “Admissibility, and Prejudicial Effect of Admission, of ‘Mug Shot,’ ‘Rogues’ Gallery’ Photograph, or Photograph Taken in Prison, of Defendant in Criminal Trial,” 30 A.L.R.3d 908. But see, State v. Williams,, 343 So.2d 1026 (La.1977); State v. Graves, 301 So.2d 864 (La.1974); State v. Hall, 261 La. 777, 260 So.2d 913 (1972).

      . Cf. State v. Asher, 294 So.2d 223 (La.1974).


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Earl J. SCHMITT, Jr.
    No. 60525.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 2, 1978.

      Robert J. Zibilich, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Grand Jury of Orleans Parish indicted Earl J. Schmitt, Jr., for the theft of two million four hundred thousand dollars worth of treasury bills, a violation of LSA-R.S. 14:67. Schmitt, an attorney, elected to represent himself at trial. The jury found him guilty as charged. Defendant was sentenced to pay a fine of $3,000 or serve one year in the parish prison and to serve eight years in the parish prison. A portion of the jail sentence was suspended with the special condition that the defendant serve one year and that he be released if and when he made restitution to the lawful owner. The court further ordered that defendant be placed on active probation for five years upon his release from prison.

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

The background facts indicate that a security guard assigned to patrol a New Orleans residential area found a sock containing twenty-four one-hundred-thousand-dollar treasury notes. He sought the services of the defendant attorney to ascertain the proper owner and to collect any reward for return of the notes. Defendant and his client were to share in the reward.

The client gave the defendant three of the treasury notes for which he received a receipt. The factual issue at the trial was whether or not the defendant returned these notes and whether or not the client later delivered the other twenty-one notes for which he had no receipt. The jury resolved the factual issue against the defendant.

ASSIGNMENT OF ERROR NO. 8

Defendant alleges that the trial court erred in refusing to allow him to reopen voir dire after a juror stated that he knew a witness in the case but that it would not affect his judgment in the case.

During the voir dire examination, the prospective jurors were questioned to determine whether or not they knew the prosecuting attorney or the defendant. They were not informed of the names of the various witnesses in the case. After the jurors were accepted and sworn, and after the reading of the indictment and opening statements by each side, the court ordered a sequestration of the witnesses. At this time, Attorney James Kambur, a witness in the case, approached the bench in order to confer with the trial judge. Following a short recess, the following exchange occurred:

“(After'the recess, a juror raises his hand and is acknowledged by the Court.)
“BY THE JUROR:
Your Honor, I was unaware that Mr. Kambur was involved in the case. I know him, but it would not affect my judgment in this case.
“BY THE COURT:
Yes, sir. I appreciate your disclosure, but you’re telling me, categorically, that would in no wise affect your judgment?
“BY THE JUROR:
That’s correct, sir.
“BY THE COURT:
Alright.
“BY MR. SCHMITT:
Your Honor, I’d like to find out in what capacity he knows him.
“BY THE COURT:
Whatever the capacity, he said, categorically, that he could judge this case fairly, on the basis of the testimony, and not on any basis of what may have transpired between you and this attorney; is that correct, sir?
“BY THE JUROR:
It is, your Honor.
“BY THE COURT:
Alright.
“BY MR. SCHMITT:
Respectfully object, your Honor.”

In his assignment of error, defendant alleges that the trial court in refusing “to allow the defendant to further examine the juror to ascertain in what capacity the juror knew the witness or anything else which would determine the juror’s qualification to sit as a juror in this case.”

We find no error in the trial court’s ruling. The time for challenging for cause, as well as for preemptory challenges, had passed; there was no showing of any incompetency on the part of the juror in question which would have necessitated other action by the trial court; and there was no abuse of the trial court’s discretion in determining the competency of jurors. LSA-C.Cr.P. arts. 795, 796; State v. Buggage, La., 351 So.2d 95 (1977); State v. Rounsavall, La., 337 So.2d 190 (1976); State v. Rudolph, La., 332 So.2d 806 (1976); State v. Wilkerson, La., 326 So.2d 353 (1976).

We are in complete agreement with the trial court’s Per Curiam, which states:

“After the jurors had been sworn the juror had raised his hand and acknowledged that he knew Mr. Kambur and that he was unaware that Mr. Kambur was a witness. The juror stated flatly and without qualification T know him, but it would not upset my judgment in this case.’ The Court, just to make sure, stated, T appreciate your disclosure, but you’re telling me categorically that it would in no wise affect your judgment?’ The juror answered flatly: ‘That’s correct, sir.’ The defense counsel wished to examine the juror further. The Court felt that under the voluntary disclosure, and the voluntary statement that it would in no way affect his judgment, further buttressed by the Court asking the juror the same question, and receiving the same answer, that any further exploration of it by defense counsel would have been useless. . . . ”

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 12

Here, defendant argues that the trial court erred “when it sustained the State’s objection to expert testimony from Mr. James Estopinal, Esq., concerning the restrictions placed on attorneys in presenting a defense in a case where the attorney was accused of wrongdoing by the client and the client subsequently invoked an attorney-client privilege to protect communications with a different lawyer concerning the subject matter about which the present case turns.”

The trial court correctly sustained the State’s objection to expert testimony regarding the attorney-client privilege for two reasons: (1) the attorney-client privilege in Louisiana is governed by statutory law (LSA-R.S. 15:475) and is, therefore, a question of law for determination by the court; and (2) the attorney-client privilege was not relevant to the case because it had been specifically waived.

Louisiana Revised Statute 15:475 provides:

“No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client’s express consent, to disclose any communication made to him as such legal adviser by or on behalf of his client, or any advice given by him to his client, or any information that he may have gotten by reason of his being such legal adviser.”

The attorney-client privilege exists in favor of the client and may be waived by him. In the present case, a letter addressed to Mr. Kambur, the attorney who represented the victim of the theft after the termination of Mr. Schmitt's representation in the civil case, expressly waived the attorney-client privilege existing between the alleged victim and defendant. This letter was introduced into evidence as State’s Exhibit S-10 (Tr. 26-27), and any claim by defendant that he was precluded from testifying by the attorney-client privilege is without substance.

The trial court correctly ruled that the existence of the privilege was a matter of law for determination by the court rather than a factual matter which might properly be the subject of expert testimony.

Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 13

Defendant alleges that the trial court erred when, “upon cross-examination of the defense character witness, Mr. James Estopinal, Esq., the Court overruled the defendant’s objection to the question, ‘Would it influence your opinion — could it influence your opinion if you knew that he had taken two million, four hundred thousand dollars worth of treasury bills from his client and not returned them to him?’ ”

Louisiana Revised Statute 15:479 provides that “character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.” Under the express wording of the statute, any attempt to elicit the personal opinion of a witness regarding defendant’s character is impermissible. The contested question occurred during the following cross-examination of defendant’s character witness:

“Q. Do you practice law with Mr. Schmitt?
“A. No, I do not.
“Q. Do you share in any cases with him?
“A. Not at the present time. I have, on occasion, referred clients to him, for some reason I felt that I had a conflict.
“Q. Did you ever share fees with him in a case?
“A. No. We never have. '
“Q. Are you paid to appear here today as an expert witness?
“A. I hadn’t thought about it. I hadn’t intended to ask for pay.
“Q. And you say you do know other people in the community who knew Mr. Earl Schmitt, Jr.?
“A. Oh, absolutely.
“Q. Just on the West Bank, or the East Bank also?
“A. Well, mostly on the West Bank.
“Q. You live on the West Bank?
“A. Yes, I do.
“Q. I believe you said that you had an opinion as to his character for truth, honesty, and his integrity, and truthfulness; is that correct?
“A. Do I have an opinion?
“Q. Yes.
“A. Oh, certainly.
“Q. What was that opinion?
“A. That I find Mr. Schmitt to be quite an upstanding — outstanding young man.
“Q. Alright.
“A. Not just in the practice of law.
“Q. Would it influence your opinion— could it influence your opinion if you know that he taken two million, four hundred thousand dollars worth of treasury bills from his client and not returned them to him?
“BY MR. SCHMITT:
Objection, your Honor.
“BY THE COURT:
Well, he said ‘if,’ so I think the question under cross-examination.
“EXAMINATION BY MR. WESSEL:
“Q. Would that influence your opinion?
“A. Well, it’s a very difficult question to answer, because first of all my initial opinion would be that he didn’t do it.
“Q. I’m asking you, sir, if you knew that Mr. Schmitt had taken two million, four hundred thousand dollars worth of treasury bills from his client and not returned them to him, would that influence your opinion as to his truthfulness, his honesty, and his integrity?
“A. Yes, if I knew that, it certainly would.”

The question, though posed in a hypothetical form, was improper because it called for the personal opinion of the witness based on the crime with which defendant was charged. LSA-R.S. 15:479. However, in the present case, the error was harmless. LSA-C.Cr.P. art. 921. The defendant suffered no prejudice — actually, the defendant benefited from the prosecutor’s questions: the witness was allowed to express his personal opinion of the defendant’s good character and to testify that he would not believe the defendant had committed the crime with which he was charged.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 16

Defendant complains that the trial court erred in refusing to allow him to cross-examine the State’s handwriting expert through the. use of a photograph that the defense expert had made and used in his testimony.

The photograph was not admitted into evidence at the time defendant’s expert testified, and defendant’s attempt to use the photograph in his cross-examination of the State’s expert did not occur until the following day. When defendant attempted to use the photograph (D-7) in his examination of the State’s expert witness, the prosecutor objected on the basis that the photograph had not been admitted into evidence and that no foundation had been laid by defendant for its admission. The court instructed defendant that it was maintaining the State’s objection until defendant laid a proper foundation for the photograph’s admission into evidence:

“BY THE COURT:

You can admit the photograph into evidence in any way that I see acceptable. You can do that, but to date it’s not yet been admitted into evidence.
u* * *
“BY MR. SCHMITT:
Your Honor, yesterday we had testimony from Mr. Courtney with reference to the different photographs.
“BY THE COURT:
You wish to respond?
“BY MR. WESSEL:
Yes, your Honor. I do not know what photographs were presented to Mr. Courtney yesterday. They were not marked. Whatever photographs Mr. Schmitt now has, he had in his possession since yesterday, and all night, and I don’t know if they’re the same ones that were presented to Mr. Courtney or not. And I haven’t even been shown these things.
“BY THE COURT:
I maintain the objection. I think it’s well-founded.
“[Defendant then began questioning the witness about other matters.]”

Initially, we note that the defense counsel acquiesced in the court’s ruling, because, after a conference between the judge and opposing counsel, defendant continued his cross-examination of the witness along other lines after having been given the opportunity to lay a proper foundation for the admission of the photograph. LSA-C.Cr.P. art. 841.

Further, the trial judge’s ruling was correct. The court properly refused to allow defendant to introduce the photograph without first laying a predicate for the admissibility of the exhibit. Although defendant did present certain photographs to his own witness to aid in his testimony, there was no showing that the present photograph had been admitted in evidence.

Assignment of Error No. 16 is without merit.

ASSIGNMENT OF ERROR NO. 17

This assignment of error relates to the denial of defendant’s Motion for New Trial and raises two issues: (1) the court’s refusal to allow defendant to question a juror, after the juror was sworn, regarding his relationship with a witness in the case; and (2) the effectiveness of defendant’s representation of himself during the trial and its preliminaries because he had allegedly stopped using Tranxene, a tranquilizing drug.

The trial court’s refusal to allow defendant further questioning of the juror was found to be without merit in Assignment of Error No. 8.

On July 22 and 27, 1976, a hearing was held on the Motion for New Trial in which the effects of ceasing to take Tranxene were fully explored. One witness offered by the defense at this hearing was Dr. Michael Francis Murphy, a physician and clinical pharmacologist, who testified that Tranxene is a minor tranquilizer prescribed as a treatment for anxiety, as a muscle relaxer, and for the control of seizure disorders. The witness stated that if an individual stops taking Tranxene he might suffer from a dream rebound symptom, possibly affecting his ability to formulate ideas or to otherwise perform intellectual functions, but not necessarily so.

The evidence is insufficient to establish that defendant was incapacitated during the trial. To the contrary, the record reflects that, on his own behalf, defendant conducted a vigorous defense. On this issue, the finding of the trial judge is entitled to great weight. The record contains no adequate basis for disturbing the following finding:

“. . . The Court heard the evidence in this matter, as well as observed the defendant during the course of the trial, and the Court feels that there is no justification in law, or fact, for the granting of a mistrial — at least a new trial, and I overrule this motion.”

Assignment of Error No. 17 is without merit.

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


author: DIXON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Patricia BARR.
    No. 60560.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.

      Ralph S. Whalen, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Bridget E. Bane, Asst. Dist. Attys., for plaintiff-ap-pellee.
   DIXON, Justice.

Patricia Barr, having waived jury trial, was convicted of cruelty to a juvenile, a violation of R.S. 14:93, sentenced to six months imprisonment, suspended, and placed on probation for two years.

The evidence showed that the thirty-seven year old defendant intentionally left her two year old son in about the middle of the 500 block of Bourbon Street around noon on January 22,1976. The child was noticed by a tourist, who watched him until she was convinced that he was lost. She then waved down some police, who took the child to the Volunteers of America for temporary care. The child was placed in a foster home within a month.

When found the child was not in distress, was warmly clothed, but was very dirty. He was not unfriendly, but could not communicate with his rescuers.

Cruelty to juveniles is defined in R.S. 14:93 as follows:

“Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seven- . teen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.
“Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars, or imprisoned for not more than two years, with or without hard labor, or both.”

The State’s case was pitched on the argument that the abandonment by the mother of her child in this case was “intentional . neglect . . . whereby unjustifiable pain or suffering is caused” to the child. The only evidence of pain and suffering caused by the abandonment was some evidence that the child missed his mother while in the nursery of the Volunteers, craved attention and affection, and was distressed upon the departure of friendly workers or visitors.

In its motion for acquittal, the defense argued that there was no evidence of “unjustifiable pain or suffering.”

About three weeks before the offense charged, Patricia Barr had traveled from California to New Orleans, hitchhiking with her child and the man with whom she was living. In California she regularly received a social security check because of her disability (a partial paralysis of an arm and leg, probably connected with earlier open heart surgery), and a check for $80.00 a month for her dependent child. The trip to New Orleans was to find work for the man of the group, which had only $5.00 to make the trip.

In New Orleans the defendant, her child and her man slept at the docks; in the daytime the woman and child stayed in a park while the man sought work and begged for money for food for the group; when the man became ill with the flu, the defendant attempted to beg money for food.

On the morning of the offense charged, the defendant spent her last pennies for milk and toast for the child and coffee for herself. In their two weeks in New Orleans the group had been denied help at a well-known charity, had obtained food at a mission on two nights and had been turned away on a third night, and on two occasions had gone to “the Catholic church . across the street from the park” where the defendant was given a dollar for food for herself and her child, but was refused help the third time. At the welfare office defendant was told “come back when you get an address.” The defendant did not know of an institution that would help her child, although she had “thought about the police station.”

Only one reported case of a similar prosecution has been located in Louisiana jurisprudence. In State v. Williams, 210 La. 866, 28 So.2d 460 (1946), the defendant had been convicted of violating Article 93 of the Louisiana Criminal Code. This court reversed, stating at 28 So.2d 461:

“From a review of the testimony taken on the trial of this case, all of which is reported verbatim in the record, we conclude that the state has failed to establish beyond a reasonable doubt one of the elements of the crime charged, i.e., that the subject child was caused unjustifiable pain and suffering as the result of its neglect on the stated occasion.”

The evidence in the Williams case was that the defendant, drunken and dirty, had entered a bar in the “skid row” section with her baby and placed it in the lap of a woman seated at a table, saying, “Will you hold my baby?” The defendant then left and did not return. The baby was described as “awfully dirty, cold and hungry.”

The other reported cases in Louisiana, sustaining convictions under the statute, have involved pain and suffering by physically abused children. (See e.g. State v. Comeaux, 319 So.2d 897 (La.1975); State v. Broussard, 312 So.2d 325 (La.1975)).

Abandonment of children (without the requirement of “unjustifiable pain and suffering”) is a less serious crime than “cruelty to juveniles.” “Criminal neglect of family” was defined in R.S. 14:74 at the time of the present offense as follows:

“Criminal neglect of family is the desertion or intentional nonsupport:
“(1) By a husband of his wife who is in destitute or necessitous circumstances; or
“(2) By either parent of his minor child, who is in destitute or necessitous circumstances, there being a duty established by this article for either parent to support his child. The parent shall have this duty without regard to his reasons and irrespective of the causes of his living separate from the other parent. The duty established by this Section shall apply retrospectively to all children born prior to the effective date of this Section. “Whenever a husband has left his wife or minor child in destitute or necessitous circumstances and has not provided them with means of support within thirty days thereafter, his failure to so provide shall be presumptive evidence for the purpose of determining the substantive elements of this offense that at the time of leaving he intended desertion and nonsupport. “Laws attaching a privilege against the disclosure of communications between husband and wife are inapplicable to proceedings under this Section. Husband and wife are competent witnesses to testify to any relevant matter.
“Whoever commits the offense of criminal neglect of family shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both; and if a fine should be imposed, the court may direct it to be paid in whole or in part to the wife, or to the tutor or custodian of the minor child or children, or to an organization or individual approved by the court as fiduciary for such wife or child, or to the state of Louisiana.” R.S. 14:74 as amended by Act 116 of 1975. (Emphasis added).

Thus the desertion of a minor child, without more, has been classified as a misdemeanor by the legislature. R.S. 14:93, on the other hand, is punishable as a felony and requires proof of the additional element of unjustified pain or suffering to the child. The inference is clear, therefore, that the legislature contemplated something more than the psychological pain which any child might suffer upon any separation from its parent.

In the case before us, if the defendant had taken her child to the police station to be turned over to the proper agency, or if she had taken him to the Volunteers, she could not have been convicted of cruelty to the child, even though he might have suffered every symptom of the separation syndrome in young children. This is for two reasons: first, there would have been no mistreatment or neglect; second, (a) there would have been no pain or suffering, or (b) the psychological pain and suffering caused by the separation from the parent would not have been unjustified.

The evidence of the abandonment in this case is not evidence of neglect. The defendant could no longer care for her child. She could not feed him or provide diapers for him, to say nothing of shelter. She left him on Bourbon Street because of the heavy pedestrian traffic, believing he would soon be in the hands of the authorities.

“Unjustifiable pain and suffering” must be understood to mean something more than psychological harm resulting from the simple fact of separation of parent and child. The only evidence of pain and suffering in the record before us (and it is scant and speculative) shows rather minimal distress on the part of the child because of his mother’s absence.

Because of the lack of evidence of these necessary elements of the offense charged, we find error in the trial court’s ruling on the motion to acquit. However, we do not hold that abandonment cannot be “neglect;” nor do we hold that psychological harm cannot be “unjustifiable pain and suffering.”

For the reasons assigned, the conviction and sentence are reversed and the defendant is ordered discharged.

SANDERS, C. J., dissents.

SUMMERS, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I consider that there was “some” evidence of defendant’s intentional neglect of her two-year-old child whereby unjustifiable pain and suffering (mental anguish) was caused to said child. Accordingly, I would affirm the conviction and sentence.

      . Likewise, cases from other jurisdictions are of no assistance because of the lack of identity with our cruelty to juveniles statute, R.S. 14:93. Some jurisdictions specifically include abandonment as one of the elements of the offense. See, e.g. Colo.Rev.Stat.Ann. § 18-6-401 (1973); D.C.Code Ann. § 22-901 (1961); R.I.Gen.L. § 11-9-5 (1969); Utah Code Ann. § 55-10-80 (1965); W.Va.Code § 61-8-224 (1965); Wyo. Stat.Ann. § 14-22 (1965). Other jurisdictions have created a separate offense to punish those guilty of abandoning their children. See, e.g. Ark.Crim.Code §§ 2407, 2408 (1975); Cal.Pen. Code §§ 270, 271, 271a; Del.Crim.Code § 1101 (1953); N.Y.Pen.Law § 260.00 (1967); Ore.Rev. Stat. § 163.535 (1971); S.C.Code of 1976 § 20-7-30; Tenn.Code Ann. § 39-202 (1967); Vt.Stat.Ann. tit. 13 § 1303 (1971). This latter approach, we have determined, is like that intended by our legislature when it enacted R.S. 14:74 and R.S. 14:93.

      . The term “unjustified” is included in the statute to prevent the prosecution of those, such as parents, teachers or tutors, legally entitled to use reasonable force in the discipline of minors. R.S. 14:18(4); State v. Comeaux, supra.


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

text:
    Application of Bayani Virata FAYLONA.
    No. 61475.
    Supreme Court of Louisiana.
    Feb. 3, 1978.
    Rehearing Denied March 3, 1978.
   In re: Bayani Virata Faylona applying for Admission to the Louisiana Bar.

ORDER

Writ granted.

MARCUS, Justice.

IT IS ORDERED that the Committee on Bar Admissions permit Bayani Virata Fay-lona to take the Bar Examination commencing February 13, 1978. Prior to certification, the Committee shall hold a hearing at which applicant shall be afforded an opportunity to demonstrate that the law school of the University of Manila, from which applicant graduated, satisfies the standards for approval of the American Bar Association.

SANDERS, C. J., dissents.

SUMMERS, J., dissents for reasons assigned.

DIXON, J.,

concurs in the order, being of the opinion the graduate degree in law from Tulane, preceded by graduation from the school of law of the U. of Manila may satisfy the requirements for taking the bar exam.

SANDERS, C. J.,

dissents from this action, but would instruct the Committee on Bar Admissions to develop rules governing foreign law schools.

SUMMERS, J.,

dissents. The showing made does not satisfy the rules applicable to admission. Due to the late application the Association has had no opportunity to determine applicant’s qualifications.


author: PER CURIAM.

text:
    STATE of Louisiana v. Joseph T. “Rip” SMITH.
    No. 59830.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Frank J. Gremillion, Hynes & Gremillion, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren J. Hebert, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Bernard B. SCOTT.
    No. 60183.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Robert F. Fleming, Jr., Kiefer, Glorioso & Fleming, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Billy MOUDY.
    No. 60370.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Jesse L. Means, Jr., Wilson R. Ramshur, Willis & Ramshur, St. Francisville, for defendant-appellant.
    Billy Moudy, in pro. per.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Alex COLLINS.
    No. 60383.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Wilson DUGAR.
    No. 60493.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Patrick D. McArdle, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay Larson, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURIAM. TATE and CALOGERO, JJ.,

text:
    STATE of Louisiana v. Willie GREEN.
    No. 60493-A.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Patrick D. McArdle, Orleans Indigent Defender Program, Hugh P. Lambert, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay Larson, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE and CALOGERO, JJ.,

dissent. Under the circumstances, where the accused was not arrested until seven months after the incident for an offense he did not know at the time would be prosecuted, the accused was entitled upon his request to examine the police reports made contemporaneously with the incident.


text:
    STATE of Louisiana v. Edward SHAFFETT.
    No. 60556.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Van MELINIE.
    No. 60557.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Rena M. Price and J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Jimmy TONEY.
    No. 60606.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Rehearing Denied March 3, 1978.
    J. Daniel Rivette and Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Patrick Fanning, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles J. KRAMER, Jr.
    No. 60609.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    A. J. Boudreaux, Staff Appeals Atty., 24th Judicial District Court, Indigent Defender Board, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Me-tairie, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Katherine S. REED.
    No. 60616.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Bob Hester, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Willie L. VEAL.
    No. 60629.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Paul D. White, Jr., Provosty & Sadler, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Darrell HONORE, Marsha Honore and Marguerite Honore.
    No. 60633.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Thomas J. Ford, Jr., 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 Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Eugene JENKINS, Jr.
    No. 60642.
    Supreme Court of Louisiana.
    Feb. 10, 1978.

      Ben E. Atkins, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Bob Hester, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Gene LONDON.
    No. 60643.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Frank J. Gremillion, Hynes & Gremillion, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren J. Hebert, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Garnet SHROPSHIRE.
    No. 60660.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Frank G. De Salvo, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Robert JONES and Lloyd Stewart.
    No. 60674.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Alan James Boudreaux, Staff Appeals Atty., Indigent Defender Board, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Di-

      rector, Research and Appeals Division, Me-tairie, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Doile H. SMITH.
    No. 60680.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Rehearing Denied March 3, 1978.
    S. Patrick Phillips, Assistant Indigent Defender, 26th Judicial District Indigent Defender Office, Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., A. L. Blondeau, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles MATHIS.
    No. 60696.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Paul J. Carmouche, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leroy SMITH.
    No. 60705.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Robert FIRMIN.
    No. 60708.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Robert Firmin was charged by bill of information with having violated La. R.S. 14:95.1, in that he did carry a concealed weapon having been previously convicted' of possession of narcotics in violation of La. R.S. 40:966. After trial by jury, he was found guilty as charged of this offense. Prior to sentencing thereon, the district attorney filed a bill of information pursuant to La.R.S. 15:529.1 charging that the defendant was a second offender having, in addition to his present conviction for violating La.R.S. 14:95.1, previously pled guilty in the United States District Court for the Eastern District of Louisiana to the crime of violating the Federal Gun Control Act of 1968. The defendant admitted the allegations in the multiple bill and was sentenced to serve ten years at hard labor in the custody of the Department of Corrections without benefit of probation, parole or suspension of sentence.

In State v. Sanders, 337 So.2d 1131 (La.1976), this Court, in a unanimous decision, noted that “the penalty provisions enacted in R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense . . . ” and, therefore, concluded that the state could not rely upon a La.R.S. 14:95.1 conviction in charging the defendant as a multiple offender under La. R.S. 15:529.1. Although in the instant case the state relied upon one prior conviction in charging the defendant with having violated La.R.S. 14:95.1 and a different prior conviction in seeking to have his sentence enhanced under the provisions of La.R.S. 15:529.1, the rule of State v. Sanders, supra, is still applicable and the defendant should not have been sentenced as a multiple offender.

Defendant’s conviction is affirmed, but his sentence is vacated and set aside and the case is remanded for resentencing in accordance with the foregoing.


author: PER CURIAM. TATE, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Ricky J. TERREBONNE.
    No. 60731.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    A. J. Boudreaux, Staff Appeals Atty., Indigent Defender Bd., 24th Judicial Dist. Court, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Metairie, Roy F. Blondeau, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, J., concurs and assigns reasons.

CALOGERO, J., concurs, joining in TATE, J., reasons.

DENNIS, J., joins in the concurring opinion of TATE, J., and assigns additional concurring reasons.

TATE, Justice,

concurring.

On the basis of present jurisprudence, I reluctantly concur in this affirmance of a mandatory life sentence for the offense of distribution of heroin.

The accused is a heroin addict. The governmental agents persuaded him to secure delivery of 22 papers of heroin to his home, with an agent paying the $175.00 price for the supplier. The accused addict was given 2 or 3 papers for his help in arranging the transaction.

The crime was thus instigated and financed by governmental agents, with full knowledge that the addict assisted them to arrange their transaction simply to satisfy his own compelling addiction. I venture to say that the life sentence received by this addict, under these-circumstances, will by some future generation be regarded in the same light as we do the tales of people burned to death upon conviction of witchery many decades ago.

Technically, of course, this addict is as guilty of “distribution” as the rich and evil professional mass-supplier for whom presumably the legislature devised the life sentence for the crime, which (if constitutional) the courts must mandatorily impose. The present is just one of the score or so of life sentences we have in the present month affirmed for the distribution offense. Many, if not most, of them involve addicts like the present, induced through undercover governmental agents and their own need or their sympathy for a (presumed) fellow addict into committing the offense.

The extreme circumstances of the present case indicate to me that we should give serious consideration to re-examining our holdings that the mandatory life sentence for this drug does not offend constitutional guarantees, La.Const. Art. 1, Section 20, against cruel, excessive, or unusual punishment. See State v. Whitehurst, 319 So.2d 907 (La.1975) and subsequent decisions.

Further, the rationale of these decisions rests in part upon the former judicial discretion to afford probation or suspension of sentence, which would permit some individualization of punishment to accord with the individual offense and offender. This basis for constitutionality has been eroded by the legislative elimination of any such judicial discretion through the amendment of La. R.S. 40:966(B) by Act 631 of 1977. This enactment (providing for no judicial discretion in the imposition of mandatory life confinement for this offense) was enacted subsequent to the present offense, but it underlines the basic irrationality of a legislatively-mandated life sentence for a nonviolent drug offense, regardless of the circumstances of the crime or of the offender, or of the degree of the guilt as a retailer or wholesaler or mere giver of drugs, however large or small the quantity.

As stated by the United States Supreme Court in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 2865, 53 L.Ed.2d 982 (1977), “a punishment is ‘excessive’ and unconstitutional if it [either] (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.”

A federal court has recently declared a similar New York statute unconstitutional, since imposing a penalty grossly out of proportion to the offense (noting, incidentally, that, of all the fifty American states, only Louisiana similarly imposes a life sentence for certain designated drug offenses). Carmona v. Ward, 436 F.Supp. 1153 (S.D.N.Y.1977).

Neither the unconstitutionality of the statute, nor the unconstitutional excessiveness of the penalty as applied to this particular offender, has been directly raised in the present proceedings, I express no opinion at this time whether the accused is barred from post-conviction attack of his sentence in state court on this basis by the technicalities of our Louisiana criminal procedure; or whether, instead, he must resort to federal tribunals for examination of what I feel to be genuinely troubling issues of unconstitutional excessiveness of the life-sentence as posed by the facts of the present case.

Our penitentiaries are filled to bursting, new penitentiaries must be built, partly to hold the multitudes of non-dangerous minor drug offenders arrested in well-publicized dragnet operations. In them, the scorecard of success (in media recognition and in obtaining more financing for an already well-financed law-enforcement facet) is all too often acclaimed by the number of life-sentenced “distributors” imprisoned, without regard to how few of them are actual large-scale dealers rather than addicts factually (even if not legally) entrapped into committing the offense by undercover agents of government.

Until legislative and executive organs reevaluate priorities, the courts are of course required to adjudicate the prosecutions of the flood of narcotic violations, which comprise so significant a part of the volume of our system’s criminal caseload. Nevertheless, the constitutionality of the mandatory life-sentences, and the individual excessiveness of particular penalties, are a proper matter of judicial concern and adjudication.

DENNIS, Justice,

concurring.

I join in the concurring opinion of Mr. Justice Tate. A sentence of life imprisonment for an addict who receives two or ■three papers of heroin as his “commission” for assisting an undercover agent in a $175 purchase does seem excessive. Because the legislature has failed to recognize any “rational gradations of culpability,” see, Carmona v. Ward, 436 F.Supp. 1153 (S.D.N.Y.1977) in punishing those who distribute heroin, this defendant receives the same mandatory life sentence as does a major supplier. So does a person, never before involved with the law, who is convicted of giving any amount of heroin to a friend. La.R.S. 40:966(B). Moreover, probation or suspension of sentence is not available for such offenses committed after the effective date of Act 631 of 1977. This total failure to tailor the mandatory life sentence in any meaningful way to the culpability of the offender, the gravity of the offense, and the circumstances of each case causes the life sentence in such a case as this to be constitutionally suspect. See, Carmona v. Ward, supra. Nevertheless, for the reasons stated by my brother, Justice Tate, we are not squarely presented with the issue on appeal in this case. I, therefore, respectfully concur.


text:
    STATE of Louisiana v. Vernon BRANAUGH.
    No. 60736.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    George P. Bevan, McKinnis, Juban & Be-van, 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.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Sylvester HUBBARD.
    No. 60742.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Clifford E. Cardone, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Darryl R. THOMAS.
    No. 60770.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Bernard E. Fulgham, Jr., Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Murphy CAMERON.
    No. 60797.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Sheila ERNEAST.
    No. 60809.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Patrick D. McArdle, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Jerry Paul FRANCIS.
    No. 60810.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    T. Barrett Harrington, Charles T. Everett, Crowley, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jack Derrick Miller, Asst. Dist. Atty., Rayne, for plaintiff-appel-lee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Clarence WHITE.
    No. 60821.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Clarence White was charged by bill of information with possession of heroin, a controlled dangerous substance. La. R.S. 40:966. On October 1,1975, he was tried before a twelve person jury and found guilty as charged. The trial court subsequently sentenced him to serve eight years at hard labor. On appeal, defendant alleges that six trial errors merit reversal of his conviction and sentence.

Having reviewed the assignments of error, we find them to be without merit and accordingly affirm defendant’s conviction.

However, we note ex proprio motu a possible error in the sentence, which appears on the face of the record. See, La. p.Cr.P. art. 920; State v. Jones, 341 So.2d 3 (La.1976). Following his conviction, defendant was found to be an habitual offender under the provisions of La. R.S. 15:529.1. The court minutes indicate that he was sentenced to serve eight years at hard labor on his conviction for possession of heroin and eight years on his conviction as a multiple offender, with the two sentences to run concurrently.

Because La. R.S. 15:529.1 is merely a penalty-enhancing device and an indictment thereunder does not charge a criminal offense, the statute permits the imposition of only one sentence. See, State v. Tillett, 351 So.2d 1153 (La.1977); State v. Hill, 340 So.2d 309 (La.1976). Any sentence imposed for the substantive offense prior to the filing of an habitual offender charge is to be vacated coincidentally with imposition of the enhanced penalty. State v. Tillett, supra. If the minutes in this case accurately reflect the imposition of two concurrent sentences for the same crime, the sentence is erroneous. Therefore, the case is remanded for correction of the sentence, if necessary, in accordance with law.

Affirmed and remanded.


text:
    STATE of Louisiana v. Anthony MAYO.
    No. 60822.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURIAM. DENNIS, J., TATE, J.,

text:
    STATE of Louisiana v. Harold BROOMFIELD.
    No. 60823.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    William J. O’Hara, III, Supervising Atty., New Orleans, Edwin G. Foulke, Jr., Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Philip J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DENNIS, J.,

concurs for the reasons assigned in the separate opinions in State v. Terrebonne, No. 60,731, La., 354 So.2d 1356.

TATE, J.,

concurs. The substantial issue of constitutionality does not appear to be squarely raised by trial court motion or objection or by assignment of error.


text:
    STATE of Louisiana v. R. L. DAVIS.
    No. 60824.
    Supreme Court of Louisiana.
    Feb. 10, 1978.

      Patrick J. Costa, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Vernon RAMSEY.
    No. 60829.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Tom MATTHEWS.
    No. 60831.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.