author: DIXON, Justice. MARCUS, Justice

text:
    Carolyn Ann ROBINSON and Frank J. Tornabene v. Robert GRAVES, Jr., and New Orleans Public Service, Inc.
    No. 58304.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Gerald J. Leydecker, Paul J. Galuszka, New Orleans, for plaintiffs-appellants.
    C. B. Ogden, II, New Orleans, for defendants-appellees.
   DIXON, Justice.

Plaintiff Carolyn Ann Robinson was a passenger in a taxicab driven by Frank J. Tornabene on October 16, 1971 when the cab was rear ended by a New Orleans Public Service streetcar in the 600 block of Carondelet Street. As a result of injuries sustained in the collision, plaintiff filed suit against these defendants and the trial court awarded damages to the plaintiff in the amount of $159,532.00. Defendants appealed suspensively contesting the amount of the award. The Fourth Circuit Court of Appeal affirmed the judgment of the trial court in most respects, but reduced the trial court’s award for loss of future wages from $82,000.00 to $33,240.18. Robinson v. Graves, 332 So.2d 303 (La.App. 4th Cir. 1976). This court granted writs on September 24, 1976 to review the judgment of the Court of Appeal.

The sole issue for consideration is whether the Court of Appeal erred in reducing the award for future loss of wages. Prior to the accident plaintiff was employed at Barnett’s Furniture Company as an assistant collection manager at a salary of $400.00 a month plus overtime. After the accident, when she returned to work in January, 1972, plaintiff was promoted to the position of assistant credit manager at a salary of $425.00 a month. At this same time her boss, Mr. McNeil, began to train her for the job of credit manager, and in May of 1972 her salary was increased to $500.00 a month. Plaintiff stopped work in February, 1973 just prior to her first back operation. Plaintiff attempted to return to her job at Barnett’s in September, 1973 but was only able to work for three days due to the injuries resulting from the accident and the after-effects of her first operation. Trial was held in the district court on December 11, 1974 and January 16, 1975 and the trial judge rendered judgment on January 23, 1975.

In order to establish her future loss of earnings, plaintiff offered the testimony of three witnesses. Miss Sarah Nunez, president of Nunez Employment Service, testified that the plaintiff could not pass the physical given by a number of companies and that for the work the plaintiff could perform she would be paid the minimum wage prevailing at that time ($2.00 an hour).

Mr. McNeil, who was training the plaintiff for the job of credit manager, testified as follows:

“Carolyn Brown [the plaintiff] was a very good employee. She had had credit experience before she came to work for Barnett’s. I was training her, she was not just working as Assistant Manager, I was training her to be promoted to Credit Manager.
“She was responding very good. She had gotten through all the phases of collections and credit, approving credit, all detail work involving computer and everything; progressing very well.
“Her attitude was very good, very good. “Her attendance record was real good, it was excellent until the accident; and after that it was spotty because of her injury and everything.
“Q Could you give us an idea as compared with other employees, other people working there as to what her increase would be through today if she would have continued working?
“A I think the best way I could answer that is she was training to be Credit Manager and I’d have to quote salaries for that and Credit Manager at that time was making $800.00 a month. This was the job she was training for.
“Q Do you feel that she was qualified to become a Credit Manager?
“A At the time, yes, sir.
“Q Do you feel that she would have become the Credit Manager had she continued to work?
“A I would suppose so.
“Q Do you feel her salary would have been increased to $800.00?
“A It could have been; yes, sir.”

Peter Bondy, an actuary, also testified for the plaintiff. He computed the loss of future earnings by taking the plaintiff’s monthly earning capacity (computed at $2.10 an hour), deducting that figure from what the plaintiff would have been earning had 'She not been injured, and then taking into account a 6% discount rate and a 3% inflation rate and computing this figure over the plaintiff’s expected work life.

The dispute here concerns the amount that the plaintiff would have been earning had she not been injured. Competent evidence was adduced that she was earning $500.00 a month when she left her employment and probably would have been earning $800.00 a month had she stayed on and completed her training for the job of credit manager. The trial judge, in his discretion, used a figure of $700.00 a month and thereby determined that the plaintiff’s loss of earnings was $82,000.00. The Court of Appeal found that the “loss of earnings testimony based on the possibility that plaintiff would become credit manager at some time in the future at $700.00 or $800.00 per month is speculative” and reduced the loss of future earnings to $33,240.18 (based on the $500.00 a month salary). 332 So.2d at 308.

Civil Code article 1934 dictates that in the assessment of damages resulting from offenses and quasi-offenses “much discretion must be left to the judge or jury.” Unless the record demonstrates that the trial court abused this “much discretion,” the appellate court should not disturb the award. Coco v. Winston Industries, 341 So.2d 332 (La.1976) and cases cited therein; Bitoun v. Landry, 302 So.2d 278 (La.1974); Fox v. State Farm Mutual Automobile Insurance Co., 288 So.2d 42 (La.1974).

Future loss of earnings cannot be calculated with absolute certainty; this court has recognized that damages for the loss of future earnings are somewhat speculative in character. See e. g., Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968). Absent an abuse of discretion by the trier of fact, however, this degree of uncertainty does not permit the reviewing court to substitute its judgment for that of the trial court merely because the reviewing court believes that a different award would have been more appropriate. As this court stated in Bitoun v. Landry, supra:

“. . . The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down.” 302 So.2d at 279.

In the case before us now, the testimony of plaintiff’s superior, Mr. McNeil, established that the plaintiff was a reliable competent worker, and was training to become credit manager. He indicated that she was qualified to become credit manager and probably would have assumed that position had she not been injured. He also testified that the salary of a credit manager was $800.00 a month. Far from abusing his discretion, the trial judge soundly exercised his discretion and in an attempt to render a judgment fair to both the litigants settled on a figure of $700.00 a month as the plaintiff’s probable future salary and thus computed plaintiff’s future loss of earnings, properly discounted, at $82,000.00.

There was no abuse of discretion by the trial judge. The award of the trial court was “reasonably supported by the evidence and justifiable inferences from the evidence before it.” Bitoun v. Landry, supra, 302 So.2d at 279. See also Coco v. Winston Industries, supra. It was error for the Court of Appeal to substitute its judgment for that of the trial judge.

For these reasons, the judgment of the Court of Appeal is reversed and the judgment of the district court is reinstated, at defendants’ cost.

SUMMERS, J., dissents. I find no error of Law in the judgment of the Court of Appeal.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I agree with the finding of the court of appeal that an award of loss of future earnings predicated on the possibility that plaintiff might become credit manager at some time in the future at a salary of $700 or $800 a month is too speculative. Accordingly, I respectfully dissent.


source: Caselaw Access Project

author: SANDERS, Chief Justice. TATE, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Herbert GREEN.
    No. 58417.
    Supreme Court of Louisiana.
    Feb. 28, 1977.

      Robert F. DeJean, Sr., Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.
   SANDERS, Chief Justice.

The State charged Herbert Green with negligent homicide. After trial, the jury returned a verdict of guilty. The trial judge sentenced the defendant to three years imprisonment, but suspended the sentence and placed the defendant on active probation for five years. As a special condition of his probation, defendant was required to serve six months in the parish jail and surrender his driver’s license during the period of probation. On appeal, defendant relies upon five assignments of error for reversal of his conviction and sentence. Assignment of Error No. 1, being specifically abandoned, is not considered.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

These two assignments of error are based upon the denial of defendant’s motion for a mistrial. The defense made the motion after the trial court ruled that the results of chemical tests of defendant’s blood, showing the alcoholic content, were inadmissible because of a failure to comply with the requirements of LSA-R.S. 32:661(C) governing admissibility. Because the blood tests were ruled inadmissible, the defense asserted that the prior reference to the test, in the State’s opening statement and by a witness, Officer Gennuso, was prejudicial and warranted a mistrial.

The officer testified only that a physician drew a blood sample and that he later sent it to the laboratory. In our opinion, this general testimony did not ripen into a ground for a mistrial because of the later rejection of the results of the blood tests.

In his opening statement, the prosecutor made the following reference to the blood tests:

“The State is going to show you by competent evidence that at the time this accident happened that this defendant didn’t even realize that there was a red light at this particular intersection, he didn’t even realize it. Why didn’t he realize it? The State is going to show you by competent evidence, we’re going to introduce the nurse who extracted blood from his arm, the defendant’s arm, at the hospital. It was taken to the crime lab in New Iberia where it was analyzed and it showed that this man had a blood alcohol content by weight of .30. Under the law of Louisiana a person with a blood alcohol content of .10 is presumed to be intoxicated. This man is three times past that presumption. The State is going to show you because of this condition this is why he didn’t know there was even a red light at this particular intersection.”

Article 766 of the Louisiana Code of Criminal Procedure provides:

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

Under the article, the State’s opening statement is mandatory. In addition to explaining the nature of the charge, the statement must set forth, in general terms, the nature of the evidence by which the State expects to prove the charge. The opening statement here complied with the requirements of the article.

The question presented here is whether a mistrial is required because the blood tests, mentioned in the opening statement as one of the items of proof, were later ruled inadmissible.

The prosecutor’s opening statement is not evidence and has no probative force. Rather, it is designed to inform the jury so that they may understand the evidence as it unfolds and to protect the defendant from surprise. LSA-C.Cr.P. Art. 766; State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971); State v. Kreller, 255 La. 982, 233 So.2d 906 (1970); State v. Dugas, 252 La. 345, 211 So.2d 285, cert. denied 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691 (1969).

The general rule is that, absent bad faith on the part of the prosecutor or clear and substantial prejudice, the reference in the opening statement to evidence later ruled inadmissible is not a ground for a mistrial. The rule takes into account that proof frequently falls short of professional expectations. State v. Shaffer, supra; State v. McKee, 170 La. 630, 128 So. 658 (1930); Annot.: Prosecution-Opening Statement, 28 A.L.R.2d 972, 974; 75 Am.Jur.2d, Trial, § 208, p. 291.

The trial judge ruled the results of the blood tests inadmissible, because the consent form signed by the defendant contained no recital that the defendant had been advised of his rights. See LSA-R.S. 32:661(C). The State' argues again in this Court that, despite the absence of the signed rights’ form, the blood tests were nonetheless admissible. It relies upon State v. Bruins, La., 315 So.2d 293 (1975). The State concedes that it lost the benefit of the presumption of intoxication created by LSA-R.S. 32:662. We assume, however, that the ruling of the trial judge was correct.

The trial judge found the prosecutor to be in good faith, stating:

“It appears that the State was in good faith in its assertion in the opening statement regarding the results of the blood test. The lab packet supposedly containing the requisite forms signed by defendant for his consent etc. to the blood extraction was not received by the State until the second day of the trial and apparently it did not know until that time that the results of the blood test would not be admissible.”

The finding of the trial judge as to the good faith of the prosecutor is entitled to great weight. See, e.g., State v. Graves, 259 La. 526, 250 So.2d 727 (1971); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971). We discern no adequate basis for a contrary finding.

More difficult is the question as to whether or not there was clear and substantial prejudice. Persuasive with us is the strong action taken by the trial judge to avoid prejudice. In a clearly worded and emphatic instruction, he cautioned the jury that the prosecutor’s statement of what would be proved was not evidence and could not be considered. See ABA Standards for Criminal Justice, The Prosecution Function and Defense Function, § 5.5 and commentary.

The trial judge instructed the jury as follows:

“I want to repeat with particular emphasis and force what I have said to you before, and that is that nothing you have heard about this particular case can be considered by you unless it came from the mouth of a witness sworn in this case. What the lawyers said is not evidence; what the lawyers argued the evidence was is not evidence; what the lawyers said was proved is not evidence; what the lawyers said would be proved is not evidence; it’s only the lawyer’s appreciation of what the facts were or what they thought the facts would be, and you are prohibited by law and under your oath from considering as evidence anything an attorney or anyone else, a judge, a court official said. The only thing you can consider as testimony in this case is what came from the mouths of the witnesses on this witness stand. Accordingly, I reemphasize that to you.”

We regard the case of State v. Shaffer, supra, as controlling here. In that case, the district attorney, in his opening statement, said: “The State will show the medical findings in this case are compatible with rape and recent sexual intercourse.” When the State had rested, defendants moved for a mistrial on the ground that the State had failed to produce the medical evidence. We held:

“The opening statement has no probative force. State v. Kreller, 255 La. 982, 233 So.2d 906. It is designed to inform and protect from surprise. The failure to produce the medical evidence raises only a question of sufficiency of the proof and is no ground for a mistrial. See C.Cr.P. Art. 775.”

We conclude that the trial judge properly overruled the motion for a mistrial and that these assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 5

Defendant objected to the introduction into evidence of certain oral inculpatory statements made to Officers Curley Landos and Paul Gennuso. Defendant concedes, in brief, that he was fully apprised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant summarizes the issue: “The sole issue before the court was whether or not the Defendant was capable of understanding what was transpiring and what his rights were at the time that questions were asked and certain alleged incul-patory statements were made.” Defendant contends that the inculpatory statements were inadmissible, the defendant being incapable of understanding because of intoxication or a blow on the head.

In ruling upon the confessions of intoxicated persons, we have consistently held that to render a confession inadmissible, the intoxication must be such as to destroy the defendant’s comprehension and render him unconscious of what he is saying. State v. Phanor, La., 325 So.2d 579 (1976); State v. Manuel, 253 La. 195, 217 So.2d 369 (1969); State v. Alexander, 215 La. 245, 40 So.2d 232 (1949); State v. Berry, 50 La.Ann. 1309, 24 So. 329 (1898); 3 Wharton’s Criminal Evidence, § 688, p. 479 (13th ed. 1972); 23 C.J.S., Criminal Law, § 828, p. 226. Intoxication, of course, is a factor to be considered by the jury in determining the weight to be accorded to a confession.

Defendant argues that he did not know what he was doing, and did not understand his rights. He points to two isolated portions of testimony by Officers Landos and Gennuso, in which the officers used the word “incoherent.” The testimony of these officers, taken as a whole, establishes that the defendant knew what he was doing. This is clearly shown by their testimony concerning the defendant’s condition and understanding at the scene of the accident and shortly thereafter at the hospital.

When the defendant was informed of his rights by the officers, he stated that he understood ..them. He identified his automobile for Officer Landos. He told Officer Landos that he had been drinking, and told Officer Gennuso that he had consumed two tall “Schlitz” and “a pint or half a pint” of whiskey at a designated barroom. He contended that the fatal accident occurred before he arrived at the scene, stating: “Get off of my back, I told you the wreck had happened when I got there.” He answered all questions Officer Landos asked him. He denied seeing the traffic light at the intersection on two separate occasions. He consented to having a blood sample taken and signed his name to the consent form.

The defendant’s actions and his responses to the officers’ questions do not portray an individual who had been deprived of his comprehension, either by intoxication or trauma.

Assignments of Error Nos. 3 and 5 are without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges that the trial court erred by giving the following charge to the jury:

“As the Court has already charged you, the Criminal Code provides that the violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence. The Criminal Code provides and prohibits the offense of operating a vehicle while intoxicated. Operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, etc.”

Defendant does not question the statement of law contained in the charge. Rather, he bases his assignment of error on the circumstance that the results of the blood tests had been excluded from evidence.

The trial judge is required to charge the jury as to “the law applicable to the case”. LSA-C.Cr.P. Art. 802. As we have already observed, there was evidence independent of the blood tests, tending to establish that defendant was intoxicated prior to the accident. Hence, the trial judge correctly ruled that it was applicable.

Assignment of Error No. 6 is without merit.

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

TATE, J., dissents and assigns written reasons.

CALOGERO, J., dissents for the reasons assigned by TATE, J.

DENNIS, J., dissents.

TATE, Justice,

dissenting.

I respectfully dissent.

The defendant is charged with negligent homicide as a result of driving while intoxicated.

In the prosecutor’s opening statement, he stated analysis of the blood content immediately after the accident would show that it had an alcoholic content of .30 weight, whereas under our law there is a statutory presumption of intoxication when only .10 alcoholic content is shown. The prosecutor continued: “This man is three times past that presumption. The state is going to show you because of this condition, this is why he didn’t know there was even a red light at this particular intersection.”

At the trial, it turned out that the results of the blood test were inadmissible as evidence. After the ruling of inadmissibility, the defendant immediately moved for a mistrial, which was denied. The denial of the mistrial was erroneous.

True, at the time of the opening statement, the prosecutor in good faith believed that the state could introduce the blood test of which he spoke. However, his belief turned out to be wrong — the blood test was inadmissible, but nevertheless the jury knew of the result of the blood test as surely as if it had been introduced.

Under these circumstances, the prosecutor’s reference in opening statement to extremely prejudicial evidence which, as it turned out was inadmissible, entitle the defendant to a mistrial upon the ruling of inadmissibility. State v. Bell, 279 So.2d 164 (La.1973). There was no way to cure the prejudice caused the defendant by this reference to specific central evidence, which was in fact inadmissible.

La.C.Cr.P. art. 766 provides that the state’s opening statement shall explain “in general terms, the nature of the evidence by which the state expects to prove the charge.” Strictly speaking the opening statement need not detail the state’s evidence but simply is designed to describe the state’s case in general terms sufficient to enable the jury to understand the evidence as it unfolds as well as to inform the defendant, State v. Sneed, 316 So.2d 372 (La.1975). When the prosecutor details evidence which subsequently is not admitted, he takes the risk that a mistrial may have to be granted. See State v. Bell, cited above, and State v. Cannon, 184 La. 514, 166 So. 485, 487 (1936), including summary of its holding at Official Revision Comment (B) La.C.Cr.P. art. 769.

The majority cites a general rule that reference to evidence later ruled inadmissible is not a ground for mistrial. The complete general rule relied upon is as follows, 75 Am.Jur.2d “Trial”, § 208: “Generally, statements by counsel that certain evidence will be introduced are not improper if made in good faith and with reasonable ground to believe that the evidence is admissible, even though the intended proof referred to is afterward excluded. However, in the absence of good faith, or where prejudice is clearly produced, whether as the result of accident, inadvertence, or misconception, the rule is to the contrary.” (Italics ours.)

Likewise, as stated at the Annotation, Prosecution — Opening Statement, 28 A.L.R.2d 972, 974 (1953), the complete general rule is as follows: “As a general rule, courts recognize the fact that proof frequently fails to come up to expectations, and so the tendency is to permit a prosecuting attorney a reasonable latitude in stating to the jury the facts proposed to be shown. And where no substantial prejudice results, and there is nothing to show that the prosecuting attorney acted in bad faith, the appellate court will usually refuse to reverse or to remand for a new trial because of a reference by the prosecuting attorney to matters which he subsequently made no attempt to prove.” (Italics ours.)

The prejudice here caused by the prosecutor’s detailed statement of the results of scientific tests to be introduced, admittedly made in good faith at the time, simply could not be cured by an admonition by the trial court.

From the statement, the jury knew that objective scientific tests presumably proved that the accused had consumed three times as much alcohol as needed for intoxication. In this prosecution for negligent homicide, the central issue was whether the accused was intoxicated at the time of the accident.

Despite any admonition by the trial court to the jury to disregard the knowledge of this most crucial (but inadmissible) evidence it had gained from the prosecutor’s opening statement, the jury knew of the result of this inadmissible test just as surely as if it had been erroneously introduced into evidence. The prejudice was perhaps all the greater, because the accused was deprived of his normal right to cross-examine the expert testimony as to the tests and to attempt to demonstrate the possibility of error or of misidentification of the blood tested.

Fully recognizing that the conscientious prosecutor was in the utmost good faith as to his intention to introduce the blood tests he described in his opening statement, nevertheless I am impelled to find that, when the result of the test was ruled legally inadmissible, the accused was caused substantial prejudice — and prejudice not curable by an admonition to the jury to disregard the knowledge it had thus gained of truly crucial evidence tending to prove the central contested issue of the prosecution, the accused’s intoxication.

I must therefore respectfully dissent.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Lawrence JOHNSON.
    No. 58514.
    Supreme Court of Louisiana.
    Feb. 28, 1977.

      R. Boatner Howell, Jr., Sumpter B. Davis, III, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Alton T. Moran, Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appel-lee.
   DIXON, Justice.

On August 8, 1975 defendant was charged by bill of information with the April 11 armed robbery of Harold Rhodus. R.S. 14:64. Defendant was arraigned on August 18, 1975 and pleaded not guilty to the charge. On October 29, 1975, the date set for trial, the assistant district attorney amended the bill of information to include four additional counts of armed robbery. Defendant was rearraigned on November 12, pleaded not guilty to all five counts, and the matter was reassigned for trial on December 3, 1975. On December 3 the trial date was postponed to January 5, 1976.

The hearing on defendant’s motion to suppress his confession, originally set for December 19, 1975, was postponed until January 16, 1976, on the district attorney’s motion. On December 30, 1975 defense counsel moved for a continuance until some date after January 16, 1976, the date scheduled for the hearing on defendant’s motion to suppress; at the December 31 hearing on this motion the State announced that it had abandoned its intention to use defendant’s confession, whereupon the court ruled that the case would proceed to trial as scheduled on January 5, 1976.

On the morning of trial the bill of information was again amended to delete two counts of armed robbery, and defendant was tried on the following three counts:

Count I: the April 11, 1975 armed robbery of Harold Rhodus
Count II: the April 13, 1975 armed robbery of Harold Rhodus
Count III: the April 19, 1975 armed robbery of Rosella Smith

At the conclusion of the three day trial on January 7, 1976 defendant was found guilty of each count by an eleven to one verdict of the jury. On February 4, 1976 defendant was sentenced to serve fifteen, twenty-five and fifty years at hard labor on Counts I, II and III, respectively, with the sentences running consecutively. On appeal defendant urges eighteen of his thirty-one assignments of error, consolidated into twelve arguments.

Between 7:30 and 8:00 p. m. on April 11, 1975 a man entered the Seven-Eleven Store on North Foster Drive in Baton Rouge, withdrew a revolver from his jacket and demanded money of the two store employees, Cynthia Breazeale and Harold Rhodus. As instructed, Breazeale and Rhodus removed the cash (approximately $150) from the two registers, placed it in a paper sack which was given to defendant, and lay down on the floor until after he was gone. The police were summoned and given a description of the man’s clothing: he wore burgundy pants, a dark jacket and a yellow and brown striped knit cap.

On the morning of April 13, 1975 the same man, armed with a revolver, again entered the Seven-Eleven Store and ordered the same store employees to place the cash from the registers ($120-$130) in a paper bag and lie on the floor for five minutes after he had gone. On this occasion the robber wore a brown jacket, dark blue pants and a yellow hat liner.

Rhodus made a positive in-court identification of defendant as the perpetrator of both robberies; Breazeale stated that defendant resembled the robber.

At about 1:00 p. m. on April 19, 1975 Kean’s Laundry, located next door to the Seven-Eleven on North Foster Drive, was similarly victimized. A man entered the laundry, waited until it was cleared of customers, then drew a gun and ordered the counter clerk, Rosella Smith, to give him the cash from the drawer. She was told to remain in the back of the store for ten minutes after he left. At trial Smith positively identified defendant as the robber.

On April 22,1975 defendant was arrested at his home, several blocks from the Seven-Eleven Store and Kean’s Laundry. A war-rantless search of his room, to which his wife consented, produced a pair of burgundy pants, a pair of navy blue pants, a brown jacket and a knit cap. Breazeale and Rho-dus testified that these articles resembled the robber’s clothing.

Defendant took the stand at trial and> testified that he did not own a gun and had not committed the robberies. Defendant’s wife, Joanne Johnson, stated that she had been estranged from defendant for several months prior to his arrest, but that she had visited him the day before he was arrested, bringing with her the knit cap which police retrieved from defendant’s room.

Assignment of Error No. 1

By this assignment defendant complains of the trial court’s denial of his December 30 and December 31 motions for continuance.

Because the hearing on defendant’s motion to suppress was postponed from December 19, 1975 to January 16, 1976, defense counsel assumed that the trial, scheduled for January 5, would be continued until after the admissibility of defendant’s confession had been determined. Counsel alleges that this assumption was strengthened by the assistant district attorney’s representations that the trial would undoubtedly be continued.

Nevertheless, on December 30 defense counsel filed a motion for continuance alleging that, based on counsel’s conclusion that the trial date would be reassigned, the defense witnesses had been told to disregard subpoenas issued for January 5 and co-counsel for defendant had planned to be out of state from January 3 to January 10. A hearing was held on the motion the following day, and defense counsel professed surprise when the State announced it would not use the confession (the subject of the motion to suppress). The court ruled that the case would proceed to trial on January 5. A second motion for continuance filed later that day asserted that the district attorney’s last minute change of tactic “border[ed] on trickery,” and that there was not sufficient time remaining before trial for the preparation of a defense. This motion was also denied.

Defense counsel again reurged his motions on the morning of trial; his arguments that he had been deceived by the district attorney and denied adequate time to prepare for trial were again rejected.

C.Cr.P. 712 provides:
“A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.”

The trial court did not abuse its discretion in concluding that a continuance was not warranted. Defense counsel’s argument in his motions, at trial and in brief, focus upon his expectation that the trial would be delayed, the district attorney’s contribution to that expectation, and the short space of time remaining before trial (with the New Year’s Eve weekend intervening; when he finally realized that there would be no continuance. Although counsel’s interest in the outcome of the motion to suppress is understandable, there is no adequate explanation of his postponement of his preparation for trial until after the resolution of this matter; several weeks had passed during which there was time for trial preparation. Additionally, counsel has nowhere demonstrated that the defense was actually prejudiced by the court’s refusal to grant a continuance. All defense witnesses were present on the morning of trial and counsel conceded that he had previously interviewed each of them, but argued that this had not been done as recently as he would have liked. However, he does not indicate how the two defense witnesses’ testimony might have differed or whether additional testimony might have been available had he been given an opportunity to confer with his witnesses just prior to trial. See State v. Brown, 322 So.2d 211 (La.1975).

Finally, it should be noted that the State’s decision not to use defendant’s confession carried with it an attendant advantage to the defense: the abandonment of two of the charges pending against defendant, with a corresponding lessening of defense counsel’s responsibilities.

It is well settled that the trial curt’s decision to deny a continuance will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Jarrow, 331 So.2d 1 (La.1976). There was no abuse of discretion here, and this assignment lacks merit.

Assignments of Error Nos. 2 and 7

Defendant contends that the court erred in refusing to permit a “look-alike witness” to sit with him at the counsel table.

With the exception of a few unremarkable articles of clothing, the only evidence linking defendant with the crimes charged was the identification of him by the eyewitnesses. Defendant asserts that several of the State’s witnesses mistakenly selected Kenneth Jackson from a pretrial line-up as the perpetrator of the robberies. Hence, defendant requested that Kenneth Jackson be seated beside him at trial in order to test the reliability of the in-court identifications. This request was denied, and when defense counsel declared that Jackson would offer limited testimony, the court additionally ruled that he would be placed under the rule of sequestration except in connection with identification testimony. Defendant does not challenge the latter ruling.

Defendant claims that the line-up was tainted by the mistaken identification of Jackson as the robber by several witnesses. To the contrary, the identification of Jackson indicates that the line-up procedure was not impermissibly suggestive, since it clearly did not label defendant as the correct choice to be made by the witnesses.

More persuasive is defendant’s argument that the in-court identification procedure was suggestive. He claims that “the mere occupation of the defendant’s chair at the counsel table has identifying properties strongly suggesting to the witness that the person occupying that position is the perpetrator of the crime.” It is true that the conspicuous display of the defendant alone in the accusatorial spotlight might dispel the doubts of some uncertain witnesses. However, “. . . this circumstance does not indicate or unduly suggest to the witness that defendant committed the crime, only that he is charged with its commission.” State v. Daniels, 326 So.2d 340, 343 (La.1976). In Daniels, supra, and State v. Brooks, 294 So.2d 503 (La.1974), the court suggested that counsel’s right to cross-examine and question the weight to be given identification testimony was sufficient to remedy any suggestion inherent in the in-court identification process. State v. Boettcher, 338 So.2d 1356 (La.1976).

State v. Boettcher, supra, and State v. Jackson, 338 So.2d 1363 (La.1976), held that a trial judge has the discretion to grant an accused’s request for a pretrial line-up, but did not alter the rule that a defendant is not entitled to an in-court lineup. The decision whether such a protective measure is required is entrusted to the trial court’s discretion:

“The trial court likewise has broad discretion to order protective measures other than a pretrial line-up, such as by seating the defendant elsewhere than in the normal place of an accused in the courtroom.” State v. Boettcher, 338 So.2d 1356, 1361.

There was no undue suggestion in the in-court identification. Although one witness had told defense counsel before trial she was not sure of defendant's identity, her conflicting testimony was fully aired before the jury by cross-examination.

There is no merit in these assignments.

Assignments of Error Nos. 5 and 6

By these assignments defendant argues that he was entitled to a mistrial, as requested, when the court made reference to the fact that defendant had been incarcerated.

When a prospective juror indicated on voir dire that she had previously discussed the case with others, the court inquired: “Have you discussed the matter of this man being in jail with anyone?” and, “Do you know what he’s in jail for?” Defense counsel moved for a mistrial which was refused. The court later instructed the jury:

“At this time I admonish you to disregard that comment [that defendant was in jail], or that remark, made by me as being irrelevant and immaterial, and I instruct you not to allow that to create any prejudice nor should you draw any inference from the fact that defendant is in jail and unable to post bond.”

Defendant claims that an admonition was insufficient to cure the prejudice which he suffered as a result of the court’s remarks.

First, defendant argues that the court’s remarks were analogous to the district attorney’s question in State v. Green, 315 So.2d 763 (La.1975), “Was that before or after he [defendant] got out of the penitentiary?”, which this court held mandated a mistrial. But in Green the question referred indirectly to another crime committed by the defendant as to which evidence was not admissible, a reference clearly prohibited by C.Cr.P. 770(2). Here, it was clear from the context of the judge’s comments and from his admonition that the reference was to defendant’s incarceration in connection with the present offense. The analogy to Green is poorly taken.

Next, defendant argues that the same principles which dictate that an accused not be tried in prison uniform also prohibit reference to his imprisonment. In State v. Tennant, 262 La. 941, 265 So.2d 230, 234 (1972), cited by defendant, the court, held that generally it infringes upon the presumption of innocence to try a man in prison clothes and that “he may, therefore, require that he be tried in civilian clothing, free of the stigma attached to prison garb.” If it is improper to present a defendant dressed in prison clothing to the jury, defendant contends, it is equally improper to tell the jury that defendant is presently incarcerated. There is no merit to this argument. An accused has the right to dress in civilian clothing at trial because prison attire might unduly connote guilt. The remarks complained of in the instant case merely drew attention to a prominent fact of the trial — that defendant had been formally accused of the crime for which he was being tried. Although the fact of accusation may be suggestive of guilt to some jurors, as the State argues in brief, it is an incident of trial from which the jurors simply cannot be insulated. The court’s admonition to the jury in this case, that it should not be prejudiced by the fact of defendant’s incarceration, was the most that could be done to counteract any latent bias.

Consequently, there is no merit in these assignments of error.

Assignment of Error No. 8

Defendant urges that the court improperly refused to grant a mistrial when it was established that the State had attempted to intimidate a defense witness.

As noted above, Kenneth Jackson was offered as a “look-alike witness” to test reliability of the eyewitnesses’ in-court identifications. Jackson testified out of the presence of the jury that the district attorney had threatened him with prosecution for the crimes charged against defendant if the witnesses identified him, instead of defendant, as the robber. Defense counsel moved for a mistrial, which was denied.

The State’s threat was clearly improper, since it was cognizant of the fact that Jackson had been incarcerated in parish prison at the time of the robberies. Nevertheless, defendant made no effort to call Jackson as a witness during trial. It was stipulated that Jackson was in jail at the time of the robberies. Defendant has demonstrated no prejudice. Defense counsel was permitted to have Jackson stand, during cross-examination of the State’s witness, before the jury.

This assignment is without merit.

Assignment of Error No. 9

Defense counsel alleges that the court erred in restricting his opening statement to a discussion of the charge and the evidence and in refusing to allow comment on the State’s use of its peremptory challenges.

Defendant argues that his due process rights were violated by the State’s use of its peremptory challenges to exclude blacks and secure a racially unbalanced jury. Under the circumstances counsel felt compelled to caution the predominantly white jury at the outset not to be influenced by racial bias. However, when he embarked upon a discussion of the State’s peremptory challenges, he was interrupted by the prosecutor’s objection and prevented from continuing.

Even where the State uses its peremptory challenges to exclude every black prospective juror, there is no denial of due process absent a showing of an historical pattern of exclusion. State v. Haynes, 339 So.2d 328 (La.1976). But see, Justice Dennis’ concurring opinion noting the frequency of complaints that blacks are excluded from jury panels in East Baton Rouge Parish. Defendant has not made the requisite showing of a systematic exclusion of blacks from the East Baton Rouge Parish jury panels over a period of time. Additionally, this argument is not properly presented for the court’s review because defendant did not assign as error the State’s allegedly discriminatory exercise of its peremptory challenges. C.Cr.P. 844 and 921.

Furthermore, the court correctly ruled that defense counsel could not address the issue in his opening statement. When defense counsel elects to make an opening statement, he must confine his remarks to an explanation of the nature of the defense and the evidence by which he expects to establish it. State v. Burnette, 337 So.2d 1096, 1098 (La.1976).

This assignment lacks merit.

Assignment of Error No. 12

Defendant contends that the court erred in failing to declare a mistrial when it was discovered that a State witness had violated the witness sequestration order.

Harold Rhodus, the victim of two of the robberies, admitted on cross-examination that he had discussed with his employer a newspaper account of the trial:

“I told him [Rhodus’ employer] we had the Jury, and he said, ‘Well, I understand they’re going to bring a fellow that looks alike in the jury room,’ and that was as far as the discussion went.”

The witness’ exposure to the newspaper article allegedly violated the sequestration order imposed by the court the day before.

C.Cr.P. 764 states:

“Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

The purpose of the article is to prevent the witnesses being influenced by prior testimony and to strengthen the role of cross-examination in developing the facts. Even when the rule of sequestration has been violated, if its purpose has not been thwarted the trial judge may, in his discretion, refuse to disqualify the errant witness or to declare a mistrial. State v. Batts, 324 So.2d 415 (La.1975).

No prejudice resulted to defendant from the violation of the sequestration order which occurred in this instance. Rho-dus’ testimony indicates that he learned nothing more from his improper conversation than that defendant was to present a look-alike witness. Surprise was not a factor in the look-alike test; defense counsel merely produced Jackson on cross-examination and asked Rhodus, “Can you tell me which one it was?”

The court did not abuse its discretion in refusing to grant a mistrial.

Assignment of Error No. 13

Defendant argues that the court erred in overruling counsel’s objections to leading questions propounded by the prosecutor to his own witness.

On direct examination, Cynthia Breazeale identified defendant as the robber, described the clothes worn in the robbery and identified the State’s exhibits as resembling the robber’s clothing. Subsequently, the prosecutor requested a more definite statement of her by asking the following questions:

“Is there anything about the looks of that man [defendant]—the way that he looks, is there anything about his facial features, uh, hair, height, anything regarding his description that would cause you to say that could not be the man [robber]?”
“ . . .Is there anything, you know pants can be made in a thousand different ways, anything about these pants that would cause you to think that these would not be the pants [worn by the robber]?”

Defense counsel objected to both questions as being leading, but was overruled on both objections.

R.S. 15:277 defines a leading question as “one which suggests to the witness the answer he is to deliver” and prohibits asking such a question of one’s own witness.

Although of course everyone knew what the witness’ answers were supposed to be, the questions in themselves do not suggest answers, but allow a yes or no response. They were not leading.

This assignment lacks merit.

Assignment of Error No. 16

Defendant assigns as error the trial judge’s ruling admitting into evidence a hat liner found near the scene of the April 13 robbery.

When the police were summoned after the April 13 robbery, the victim, Harold Rhodus, pointed them in the direction the robber had fled. An investigation of the area revealed a yellow hat liner resembling that which the victims had said the robber wore. This item was introduced in evidence over defendant’s objection that it was irrelevant.

Relevant evidence is “that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.” R.S. 15:441. To be admissible evidence must be “relevant to the material issue.” R.S. 15:435; State v. Major, 318 So.2d 19, 22 (La.1975).

Here, the State established some connexity between the hat liner and the robber but the State did not show that it was relevant to any material issue in the case. Nevertheless, the trial court has broad discretion in this area, and because defendant' has not demonstrated that he was prejudiced by the court’s ruling, the error, if any, was harmless. See State v. Gallow, 338 So.2d 920 (La.1976) and State v. Bird, 302 So.2d 589 (La.1974).

This assignment is without merit.

Assignments of Error Nos. 20, 21, 22 and 28

These assignments relate to the conduct of the hearing on defendant’s motion to suppress evidence and to the court’s denial of that motion. The motion sought to suppress articles of clothing, previously alluded to, which were seized from defendant’s home following his arrest. Defense counsel did not learn of the existence of this evidence until after the trial had begun, but the court permitted counsel to enter his motion on the second day of trial and interrupted the proceedings for a hearing on the motion.

Sergeants Gill and Alford testified that an unidentified informant’s tip led them to defendant’s room in a boarding house on North 47th Street in Baton Rouge. Gill claimed that both the informant and the owner of the boarding house had told him that defendant lived there with his wife. When the officers arrived at defendant’s residence at about 6:45 a. m. on April 22 they found defendant’s wife, Joanne, there alone and they left. Shortly thereafter they returned, saw defendant outside, and arrested him. They then returned to defendant’s apartment, finding the door open and the room empty. From the door they saw a jacket, two pairs of pants and a knit cap. Defendant’s wife, who had apparently gone next door after the first visit by the police, came back and, at the officers’ request, signed a waiver form permitting them to conduct a warrantless search of the room.

Joanne Johnson testified that she had signed the waiver form after the officers threatened to take her down town and put her child in a foster home. Additionally, she claimed that she and defendant had not lived together for several months until the night before defendant’s arrest, when she went by for a visit and stayed for the night.

Defendant and his mother also corroborated Mrs. Johnson’s statement that she and defendant had been estranged for several months.

Assignments of Error Nos. 20 and 21 relate to the court’s ruling permitting the State to recall Sergeant Gill as a witness in order to inquire whether he had seen the articles seized before entering defendant’s room. Gill responded that he had. Defendant argues that it was highly improper to allow the State to recall its witness after he had already completed his testimony and thus interject a “plain view” issue into the proceedings.

The recall of Sergeant Gill may have been somewhat irregular, but the entire hearing was irregular, falling as it did in the middle of the trial. The testimony belatedly sought from Gill when he was recalled had been given by him only moments before on direct examination at trial. Further, Sergeant Alford testified at the hearing prior to Gill’s recall that he had seen the clothing from the doorway, and it was through an apparent oversight that Gill was not initially examined as to this matter.

Even at trial, where the order of evidence is more formally regulated, the court may in its discretion permit the introduction, of additional evidence after the State’s rebuttal and prior to argument. C.Cr.P. 765. The court had the authority to permit Gill’s recall and this authority was properly exercised here.

In Assignments of Error Nos. 22 and 23 defendant complains of the court’s denial of his motion to suppress. He argues that he has standing to challenge the search under Article I, § 5 of the Louisiana Constitution of 1974. He further argues that the search of his room cannot be justified under any theory: it was not incident to a lawful arrest, since the arrest occurred outside, and the search was not confined to the immediate vicinity of the arrest; that it was not a valid consent search since Mrs. Johnson did not live with defendant and therefore could not authorize the police to search his room; and, finally, if Mrs. Johnson was capable of consenting, her consent was not valid here because it was the product of coercion.

The State argues that the search was legal by virtue of Mrs. Johnson’s consent.

Essentially these assignments require the court to assess the credibility of the witnesses.

Defendant concedes that Joanne Johnson is his wife, but argues that they had been estranged for many months with the exception of the night preceding his arrest. Sergeant Gill was the only State witness to refute this testimony, stating that he had learned from defendant’s landlady and from his confidential informant that defendant and Joanne Johnson resided together, testimony which was contradicted by the landlady.

The State contends that even if Mrs. Johnson were not living with defendant she could validly consent to the search of his room by virtue of her status as his wife. In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court held that a third party’s consent to a warrantless search is only valid where that party possesses common authority over or other sufficient relationship to the premises. The court observed:

“Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third consent does not rest upon the law of property, with its attendant historical and legal refinements, . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” 94 S.Ct. at 993, fn. 7.

In State v. Dupuy, 319 So.2d 299 (La.1975), this court similarly held that the consent of a spouse to search “jointly owned and controlled premises permits a warrant-less search.” There was sufficient evidence of joint control to support the finding of the trial judge. Defendant’s wife had the authority to consent to the search of defendant’s room. We agree that it was neither a “plain view” search, nor a search incidental to an arrest.

It is argued next that if Mrs. Johnson’s consent was involuntary, it will not support the search of defendant’s room. She stated that she had been threatened with the loss of her child and imprisonment if she did not sign the waiver form. The police were never asked whether they had threatened her in any way. However, her statements were impliedly refuted by Sergeant Gill’s contrary account of their encounter:

“Our other conversation with her [when her consent was obtained] went like this: We told her that we wanted to search the room for money and weapons and cloth-, ing because Lawrence had been arrested for armed robbery. I told her I didn’t have a search warrant but she could sign a search waiver for me. I produced this form here. She signed the search waiver and I searched the room.”

There is no merit to these assignments.

Assignment of Error No. 26

Defendant claims that the court committed reversible error when it refused to permit testimony as to his good character.

Defense counsel asked defendant, “When was the last job that you had?” The State objected to the defendant’s attempt to establish his good character and before the court could rule, defense counsel interjected, “Well, I know about his character. I think it’s good and I ought to be able to . ” The State then objected to counsel’s testifying on his client’s behalf, and the court cautioned defense counsel, “Your stating to the Jury that you think the man’s character is good is out of place, and I’ll instruct the Jury to disregard it and advise you not to do it again.” The original objection was never ruled upon, and the extent of the court’s intervention was to instruct defense counsel that it was improper for him to testify as to defendant’s character.

The court’s ruling was correct; defendant was never barred from introducing proper evidence of his good character.

This assignment lacks merit.

Assignments of Error Nos. 29, 30 and 31

Finally, defense counsel claims that the court erred in overruling his motion for a mistrial based upon the State’s continued interruption of his closing argument with objections.

There were only four objections during counsel’s lengthy summation. Counsel does not claim that they were ill-founded, as several of them clearly were not, but that they were disruptive and distorted the presentation of the defense to the jury. None of the interruptions was for a serious objection, and some were merely contentions, and were overruled by the trial court. Such tactics should not be condoned. However, the record does not demonstrate any prejudice to defendant.

The defendant also argues that he was entitled to a mistrial when the court chuckled at hearing one of his requests. Defendant had just moved for a mistrial based upon the State’s interruptions of his argument and upon the court’s instructions to the jury that it was to be the sole judge of what facts had been established. (Defense counsel had attempted to give them his own version and the State had objected). It does not appear that the court’s “amused chuckle” was anything but good-natured and clearly was not intended to demean counsel.

Defense counsel then moved for a mistrial on the ground that defendant had been denied effective assistance of counsel. The record proves otherwise.

These assignments are without merit.

The conviction and sentence are affirmed.

DENNIS, J., concurs.

      . It is unclear who these witnesses were. Cynthia Breazeale did not attend a line-up; Rosella Smith testified that she positively identified defendant at the line-up; Harold Rhodus stated that he saw defendant at the line-up, but did not allege that he identified him there. The mistaken identifications were probably made by witnesses to the robberies which the State decided not to prosecute.


author: MARCUS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Shelly AMOS. STATE of Louisiana v. Alonzo LANDRY. STATE of Louisiana v. Jerry ROBINSON.
    Nos. 58522, 58617, 58629.
    Supreme Court of Louisiana.
    Feb. 28, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John J. Messina, Patrick J. Fanning, New Orleans, Ivan L. Lemelle, Asst. Dist. Atty., for plaintiff-appellant.
    Ronald J. Rakosky, Lyall G. Shiell, Jr., Dymond & Crull, New Orleans, for defendants-appellees.
   MARCUS, Justice.

Shelly Amos, Alonzo Landry and Jerry Robinson were each charged by a separate bill of information with possession of a firearm after having previously been convicted of a felony in violation of La.R.S. 14:95.1. Prior to trial, defendants Robinson and Landry filed motions to quash alleging that the statute under which they were charged was unconstitutional in that it impermissi-bly infringed on their right to keep and bear arms guaranteed in the federal and state constitutions. The trial judge sustained these motions. After having been convicted of attempted possession of a firearm, defendant Amos filed a motion for a new trial and/or arrest of judgment on the same ground. The trial judge sustained the motion in arrest of judgment. From these adverse rulings of the trial judge, the state perfected appeals to this court in each case. La.Const. art. 5, § 5(D)(1) (1974). The three cases are consolidated here for review.

La.R.S. 14:95.1 provides in pertinent part:

A, It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony .or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon.
C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans Parish the superintendent of police, for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.
(3) The sheriff or superintendent of police, as the case may be, shall immediately notify the Department of Public Safety, in writing, of the issuance of each permit granted under this Section.

Added by Acts 1975, No. 492, § 2.

It should be noted at the outset that the right to keep and bear arms guaranteed by the second amendment to the federal constitution is not carried over into the fourteenth amendment so as to be applicable to the states. It operates as a limitation only upon the power of Congress and the national government. Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812 (1894); Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875); 79 Am.Jur.2d Weapons § 4 (1975). Hence, the sole issue presented for our consideration is whether this statute improperly contravenes La.Const. art. 1, § 11 (1974) which provides that the “right of each citizen to bear arms shall not be abridged.”

Defendants argue that, having completed state supervision for their previous felony convictions, they have been restored full rights of citizenship. La.Const. art. 1, § 20 (1974). With this proposition, we fully agree. We cannot accept, however, defendants’ further contention that, since they are citizens, any act of the legislature limiting or regulating their right to keep and bear arms unconstitutionally contravenes the broad language of La.Const. art. 1, § 11 (1974).

The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one. City of New Orleans v. Kiefer, 246 La. 305, 164 So.2d 336 (1964); City of Lafayette v. Justus, 245 La. 867, 161 So.2d 747 (1964). It is beyond question that the statute challenged in the instant case was passed in the interest of the public and as an exercise of the police power vested in the legislature. Its purpose is to limit the possession of firearms by persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity.

To be sure, La.R.S. 14:95.1 is addressed to persons who are citizens of this state by virtue of having terminated state and federal supervision following their convictions. La.Const. art. 1, § 20 (1974). These persons have, nonetheless, previously been convicted of serious criminal offenses; restoration of citizenship cannot erase this fact. The verbatim transcripts of the constitutional convention debates indicate that neither La.Const. art. 1, § 11 nor La.Const. art. 1, § 20 were ever intended to preclude the type of legislation disputed herein. We are satisfied that it is reasonable for the legislature in the interest of public welfare and safety to regulate the possession of firearms for a limited period of time by citizens who have committed certain specified serious felonies. Courts of other states having statutes and constitutional provisions comparable to our own have similarly concluded that such regulation is constitutionally permissible as a reasonable and legitimate exercise of police power. People v. Blue, 544 P.2d 385 (Colo.1975); State v. Krantz, 24 Wash.2d 350, 164 P.2d 453 (1945); Akron v. Williams, 113 Ohio App. 293, 177 N.E.2d 802 (1960); 79 Am.Jur.2d Weapons § 24 (1975).

For the foregoing reasons, we are satisfied that La.R.S. 14:95.1 does not impermis-sibly contravene the rights guaranteed in La.Const. art. 1, § 11 (1974). Accordingly, we reverse the rulings of the trial judge declaring La.R.S. 14:95.1 unconstitutional.

DECREE

For the reasons assigned, the rulings of the trial judge quashing the indictments of Jerry Robinson and Alonzo Landry and arresting judgment in the case of Shelly Amos are reversed, and the cases are remanded for further proceedings in accordance with law and the views expressed herein.

SUMMERS, J., concurs.

CALOGERO, J., dissents and assigns reasons.

DIXON, J., dissents.

CALOGERO, Justice,

dissenting.

The trial judge terminated these three prosecutions for the reason that the indictment failed “to charge an offense which is punishable under a valid statute, but, on the contrary, purports to charge an offense which is unconstitutional under the constitutions of the State of Louisiana and the United States of America.” Those constitutional provisions to which he referred are the second amendment to the Constitution of the United States, which forbids the infringement of the people’s right to keep and bear arms, and Article I, section 11 of the Louisiana Constitution of 1974 which provides that:

“The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”

The court below found that the state constitutional prohibition against laws denying the right of citizens to keep and bear arms was impermissibly limited by the section of R.S. 14:95.1 which forbids the possession of a weapon by a convicted felon, and there-, fore declared that part of the statute unconstitutional.

The majority has held that the passage of R.S. 14:95.1 was a valid exercise of the police power granted to the legislature by Article III, section 1(A) of the Louisiana Constitution of 1974. The majority had adopted the state’s argument that the state legislature has the authority to enact any legislation to protect the public health, safety, morals, or general welfare so long as that regulation is a reasonable one, even in light of the above-quoted constitutional prohibition of Article I, section 11. I do not agree.

The Louisiana legislature has plenary powers which are limited only by the positive provisions of the state and federal constitutions. Hainkel v. Henry, 313 So.2d 577 (La.1975); Bates v. Edwards, 294 So.2d 532 (La.1974) and cases cited therein. Under its police power, the legislature can enact any reasonable regulation to protect the public health, safety, morals, or general welfare so long as that legislation is not specifically denied it by one of the constitutions. Here, however, the statute attempts to outlaw conduct expressly guaranteed by the state constitution.

The Louisiana Constitution proclaims that the “right of each citizen to keep and bear arms shall not be abridged. . . . ” This provision differs from the source provisions in the federal constitution and the former Louisiana Constitution. Both of these constitutions link the right to carry a' gun to the right to support a militia. The second amendment to the United States Constitution states that:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Likewise Article I, section 8 of the Louisiana Constitution of 1921 provided that:

“A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.”

These references to a militia and to “the right of the people ” have been used to show that these constitutional protections do not provide a person a right to keep and bear arms, but that they merely reaffirm the right of the people as a whole to form a militia for their defense. See generally, Stevens v. United States, 440 F.2d 144 (6th Cir. 1971); State v. Jumei, 13 La.Ann. 399 (1858); State v. Smith, 11 La.Ann. 633 (1856). The 1974 Louisiana Constitution, which in its preamble emphasizes that its goal is to protect the rights of the individual in addition to the rights of society as a whole, makes no reference to a militia or to the rights of “the people.” Instead, that document protects the right of each citizen to keep and bear arms, setting out an individual right in absolute terms, with, of course, the proviso that the legislature does have the authority to prohibit or regulate firearms concealed upon the person.

Defendants herein are citizens. Article I, section 20 provides that “Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.” The constitution thus bestows on “each citizen” the right to possess a weapon, and it also restores “full rights of citizenship” to a person upon termination of his state and federal supervision for a criminal conviction. Each of the defendants has been restored the constitutionally guaranteed right to keep and bear arms. The provision of R.S. 14:95.1 which purports to deny them that right, I believe, impermissibly limits the affirmative constitutional guarantee and as such is not a valid exercise of the police power.

The state, however, insisting that the Louisiana statute is valid, directs our attention to the jurisprudence of many of our sister states, opinions which uphold similar statutes forbidding the possession of weapons by convicted felons. Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), aff’d 267 Ala. 507, 103 So.2d 341 (1958), cert. denied 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959); State v. Rascon, 110 Ariz. 338, 519 P.2d 37 (1974); People v. Blue, 544 P.2d 385 (Colo.1975); Nelson v. State, 195 So.2d 853 (Fla.1967); State v. Knowles, 209 Kan. 676, 498 P.2d 40 (1972); Renfro v. State, 372 P.2d 45 (Okl.Cr.1962); State v. Adkins, 40 Ohio App.2d 473, 320 N.E.2d 308 (1973); State v. Cartwright, 246 Or. 120, 418 P.2d 822 (1966), cert. denied 386 U.S. 937, 87 S.Ct. 961, 17 L.Ed.2d 810 (1967); McGuire v. State, 537 S.W.2d 26 (Tex.Cr.App.1976). These states, however, have constitutional provisions different from ours. Every one of these constitutions link the right to bear arms to the need for a militia, as did the Louisiana Constitution of 1921. Ala.Const. art. I, § 26; Ariz.Const. art. II, § 26; Colo. Const, art. II, § 13; Fla.Const. (1885) art. I, § 20; Kan.Const. Bill of Rights, § 4; Okl. Const, art. II, § 26; Ohio Const, art. I, § 4; Or.Const, art. I, § 27; and Tex.Const, art. I, § 23. Unlike these provisions, the Louisiana Constitution of 1974 expressly grants to each citizen the “right to keep and bear arms,” a right which “no law” shall abridge. This constitutional guarantee is not limited by linking it to a militia or a defense for the people as a whole. It is limited only by one stated exception: the legislature has the authority to prohibit the concealment of weapons on the person. Otherwise, the legislature lacks the authority to nullify the right of Louisiana citizens to keep and bear arms.

It is not without reluctance that I would come to this conclusion. I recognize the policy considerations which caused the legislature to attempt to keep weapons out of the hands of people who have been convicted of certain felonies. However, I believe the broad new language of the Constitution allows no other construction than the one I feel constrained to give it.

Consequently, I would sustain the ruling of the trial judge. Therefore, I dissent.

      . XIV Constitutional Convention of 1973: Verbatim Transcripts, 44th day, at 45, 57, 58 and 62; XIV Constitutional Convention of 1973: Verbatim Transcripts, 45th day, at 7.

      . Article III, section 1(A) of the Louisiana Constitution of 1974 provides that: “The legislative power of the state is vested in a legislature, consisting of a Senate and a House of Representatives.”

      . This exception was a carefully drawn provision narrowed from a former wording which would have allowed legislation prohibiting any concealed weapon, not merely weapons concealed upon the person. The delegates said that they wished to prohibit legislation which might outlaw the concealment of guns in such places as a plane, a car, or a boat. XIV Constitutional Convention of 1973, Verbatim Transcripts, 3-27 (September 12, 1973).

      . I am not here discussing the right of the state to register the purchase or possession of weapons; I examine merely the right of a citizen to possess a weapon, not the right of the state to require its registration.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Wilbert "Honky” WINSTON.
    No. 58570.
    Supreme Court of Louisiana.
    Feb. 28, 1977.

      Reuvan N. Rougeau, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., A. J. Fazzio, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

On February 28, 1975, the Grand Jury of Calcasieu Parish indicted defendant for distribution of heroin, a violation of LSA-R.S. 40:966(A)(1). In May of 1975, defendant was tried, convicted and sentenced to life imprisonment. This Court, however, reversed the conviction and remanded the case for a new trial. La., 327 So.2d 380 (1976). After the new trial, defendant was again found guilty and sentenced to life imprisonment. On appeal, defendant relies upon two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

During his cross-examination of Jack Hebert, former head of the Narcotics Division of the Calcasieu Parish Sheriff’s Department, defense counsel sought to elicit testimony regarding Sheriff Henry A. Reid’s general criticism of the way in which Hebert had managed some of the narcotics cases in that parish. Before counsel could complete the question, the State objected, and the jury was removed. The trial court ruled that the interrogation called for hearsay testimony and was irrelevant.

Relying upon LSA-R.S. 15:486 and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), defendant contends that the trial court erred in unreasonably limiting his constitutional right to confront the witness against him and to attack his credibility.

At the time defendant’s trial took place there was a controversy between Sheriff Reid and Deputy Sheriff Jack Hebert, among others. The controversy resulted from allegations made against Sheriff Reid by a number of Deputy Sheriffs who had recently resigned; Hebert was among those who had resigned.

Defense counsel argues that the questioning was designed to determine whether the controversy between the Sheriff and Hebert related to the charges brought against the defendant in the present case. Counsel contends that the court should have allowed him to pursue this line of questioning because, in the event that Sheriff Reid’s criticism of Hebert’s conduct of some narcotics investigations did involve the present case, some doubt might have been cast on the credibility of both Hebert and Payne, the undercover agent who testified in this case.

LSA-R.S. 15:486 provides:

“Each side has the right to impeach the testimony and the credibility of every witness sworn on behalf of the other side.”

Without doubt, the credibility of each witness called to testify in a criminal prosecution is a material issue at trial, and LSA-R.S. 15:486 permits each side to test the credibility of each witness called by the other side. See also, LSA-R.S. 15:492. However, in the present case, defense counsel sought to impeach the credibility of the witness by statements attributed to the Sheriff in newspaper articles. This source of impeachment is clearly hearsay and inadmissible into evidence since it does not fall under any of the recognized exceptions to the hearsay rule. LSA-R.S. 15:434. If the Sheriff had personal knowledge helpful to the defense, he could, of course, have been summoned as a witness.

Likewise, defendant’s reliance upon Davis v. Alaska, supra, is illfounded. In that case, the State, prior to taking testimony in defendant’s trial, moved for a protective order to prevent any reference, in the course of cross-examination, to the juvenile record of a prosecution witness. The defense argued that it would attempt to show that the witness might be subject to undue pressure by the police to testify because he was then on probation. The United States Supreme Court reversed and remanded holding that the Sixth Amendment right of confrontation requires that the defendant in a state prosecution be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias due to the witness’s probationary status as a juvenile delinquent.

We find the present case distinguishable on its face from Davis v. Alaska, supra. Davis involved demonstrable certified evidence by which to impeach the witness, while the case before us involves only general hearsay attributed to the Sheriff. In our opinion, the trial judge correctly disposes of this assignment in the following Per Curiam:

“This concerns my refusal to allow the witness Jack Hebert, a former Deputy Sheriff, to testify as to what recent newspapers had reported that the Sheriff, H. A. Reid, Jr., had said concerning Jack Hebert’s performance as a Deputy Sheriff.
“For purposes of background, while this trial was taking place (June 1976) the Grand Jury of Calcasieu Parish was in session reportedly investigating the Sheriff of Calcasieu Parish, H. A. Reid, Jr. That investigation stemmed from allegations made by a number of Deputy Sheriffs who had recently resigned. Jack Hebert was one of the accusers. He had been the head of the Narcotics Division before his resignation, having been a Deputy for 15 years and head of the Narcotics Division for 7. Counsel for defendant attempted to get before the jury, through Hebert, an alleged newspaper account of criticism the Sheriff had levied against .Hebert following the latter’s resignation.
“I read these newspaper accounts, and the Sheriff’s reported criticism of Hebert was not tied to any specific narcotics investigation or any particular time period. I got the impression that the criticism was based on something that happened no earlier than the year prior to the resignation, certainly not as early as September 29,1974, the date of Winston’s crime.
“Such testimony was. inadmissible for numerous reasons, not the least of which was its total irrelevance.”

The trial judge’s determinations regarding the relevancy of offered testimony are entitled to great weight and should not be overturned in the absence of a clear abuse of discretion. State v. Junegain, La., 324 So.2d 438 (1975); State v. Owens, La., 301 So.2d 591 (1974); State v. Ackal, La., 290 So.2d 882 (1974); State v. Davis, 259 La. 35, 249 So.2d 193 (1971); State v. Walker, 204 La. 523, 15 So.2d 874 (1944); State v. Stracner, 190 La. 457, 182 So. 571 (1938).

Defendant has failed to demonstrate a clear abuse of discretion in the ruling of the trial court.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Here, defense counsel complains that the trial court improperly refused to allow him to examine former Deputy Hebert regarding the deputy’s use of one El-ray Fontenot as an informer in the unrelated case of State v. Scott, La., 278 So.2d 121 (1973). While recognizing that such questioning is collateral to the charges brought against this defendant, counsel urges that the line of questioning should have been allowed to refute Hebert’s testimony that he always used reliable undercover informers and agents, and that he did not rely on the aid of “users” of hard narcotics. Counsel argues that this fact itself would have “impeached” Hebert’s testimony, since it appears to have contradicted his testimony in the present case that he did not use informers who were hard-narcotics addicts because of their unreliability.

In State v. Scott, supra, the defendant was convicted of distributing heroin on or about February 12, 1972. The defendant in the present ease was convicted of distributing heroin on or about September 29, 1974. Both convictions occurred in Calcasieu Parish and during the time in which Hebert was head of the narcotics division of the Sheriff’s Department. In State v. Scott, supra, we stated:

“Undercover agent Elray Fontenot was being cross-examined by defense counsel concerning his past activities. As he replied to the questions propounded, tending to uncover his sometimes illegal and unexemplary past conduct, he requested permission of the judge to explain his answers. When granted permission he explained why he was being used as an undercover agent and why he was able to succeed in that role. A ‘nice fellow’ could not have bought drugs from the defendant, he said. ‘And if I hadn’t shot heroin at the time that I did I wouldn’t be here to testify now. Scott right there wouldn’t let me testify. . . . ’ ” 278 So.2d at 126.

The trial court sustained the State’s objection to this line of questioning regarding an informer in an unrelated case on the ground that such testimony was irrelevant.

In his Per Curiam to this assignment of error, the trial judge states:

“The trial of this case required the testimony of Joe Payne, an undercover agent in the Calcasieu Parish Sheriff’s Narcotics Division. The department had used a number of undercover agents in the past, but no one except Joe Payne was involved in this case. Counsel for defendant sought to weaken Joe Payne’s credibility and reliability by extensive questioning into his background. I permitted this. However, I sustained an objection when counsel attempted, by questioning the former head of the Narcotics Division, Jack Hebert, to investigate the backgrounds and find fault with other former undercover agents who had no connection with this case.”

We agree with the trial court. As in Assignment of Error No. 1, we are unable to find any abuse of the trial court’s discretion in its ruling. The court below allowed extensive questioning into the credibility of the informer in the present case. The disal-lowance of evidence concerning the background of an agent unconnected with the present case appears to be a proper exercise of discretion.

However, assuming without deciding that error has been committed, the error is harmless and does not require reversal. L.C.Cr.P. Art. 921. Deputy Hebert testified freely that he had used informers and undercover agents in the past who had been charged with marijuana violations. He also testified that although the Sheriff’s Department tried to hire and use only trustworthy personnel, some later proved to be unreliable. These were dismissed, and the cases on which they had worked were dropped.

Regarding the undercover agent, Fonten-ot, Hebert testified that he had been involved in the investigation and testified in a trial resulting in the conviction of Scott; and that some time after the trial Fontenot was discharged, not because he had proved to be unreliable, but because he had gotten into a fight and “somebody called him a ‘narc’ or something.” Further, though Mr. Hebert testified that Fontenot was not a narcotics user at the time he worked undercover, he stated that Fontenot had used them in the past; had smoked marijuana in the past; and that he thought he remembered that Fontenot had been charged for possession of marijuana in Texas and was on probation during at least a part of the time that he worked undercover for the Sheriff’s Department in Calcasieu Parish.

Assignment of Error No. 2 is without merit.

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


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Bela ANDRASI.
    No. 58577.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Mary Olive Pierson, Sheldon D. Beychok, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie F. Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   CALOGERO, Justice.

Defendant Bela Andrasi was one of a number of persons against whom charges were filed in connection with an incident which occurred at the home of H. Alva Brumfield in Baton Rouge, Louisiana on May 25, 1973. On that date Mr. Brum-field’s home was burglarized and when Mr. Brumfield arrived at his home, unexpectedly apparently, an armed robbery took place and he was murdered.

Defendant admittedly drove an automobile for certain accomplices on the night in question for the acknowledged purpose of participating in, or aiding and assisting his accomplices, in the perpetration of a burglary of the Brumfield premises. In addition to a murder charge, defendant was charged with armed robbery and conspiracy to commit armed robbery. Defendant confessed his complicity in the incident and voluntarily testified at the preliminary hearing of one of his accomplices in State of Louisiana v. Eugene Redwine.

Following plea bargaining with the district attorney’s office, defendant pled guilty to the murder charge “without capital punishment,” a sentence which carries the possibility of parole, probation, or suspension of sentence.

However, prior to sentencing, defendant filed a motion to withdraw his guilty plea alleging that he “did not understand the nature and consequences of his act in pleading guilty” and that his guilty plea had been the result of a plea bargain agreement between him and the district attorney, an agreement which, he claims, “the district attorney does not intend to live up to and has ¿not done so to date.”

After a hearing the trial judge denied the motion to withdraw the guilty plea and on May 7, 1978 defendant was sentenced to confinement for the balance of his natural life at hard labor and was committed to the custody of the Louisiana Department of Corrections in accordance with La.R.S. 15:824.

Defendant now appeals his conviction and sentence. His single assignment of error is the contention that the trial judge erred in refusing to permit him to withdraw his guilty plea. The indictment charged defendant with committing the crime of first degree murder on May 25, 1973. Our murder statute then provided that “whoever commits the crime of first degree murder shall be punished by death.” However, the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) made it impossible for this state to impose the death sentence under the existing murder statute. In response to this decision, our legislature amended La.R.S. 14:30, by Act No. 109 which became effective on July 2, 1973, to provide for the imposition of a mandatory death sentence for first degree murder. That statutory amendment became effective after the crime with which defendant was charged had been committed. Defendant’s maximum permissive sentence at the time he entered his guilty plea was life imprisonment without benefit of parole, probation, or suspension of sentence.

At the hearing on his motion to withdraw the plea, defendant testified that in return for his plea of guilty, he was promised a life sentence with benefit of parole, probation and suspension, nol pros of the armed robbery and conspiracy to commit armed robbery charges, and he was assured by the district attorney that he would be granted parole in ten and one half years, that the parole would not be contested by Brum-field’s family, and that he would not be required to serve his sentence at Angola, but rather would remain in protective custody. Defendant further testified that the district attorney had advised him that when he (defendant) was questioned in open £ourt he should conceal the various promises which prompted his pleading guilty except the life sentence without capital punishment. In this way he accounts for responses during his Boykinization which are at variance with his motion testimony.

The district attorney, Mr. Ossie Brown, and the assistant district attorney, Mr. Len-nie Perez, with whom the plea bargain was allegedly made, were called by the state to testify at the hearing. Their testimony was consistent. Both men stated that they had met with defendant on a number of occasions and that a number of these meetings had been called by defendant. They stated that, well in advance of any plea bargaining, defendant admitted his involvement in the incident, and voluntarily agreed to cooperate by testifying for the state in the prosecution of his accomplices. They admitted that an agreement was later negotiated between defendant (in the presence of his attorney) and the district attorney.

The district attorney and his assistant admitted agreeing to nol pros the two ancillary charges (which they did), and to accept a plea of guilty without capital punishment (which resulted in a .straight life term rath-, er than one without benefit of parole, probation or suspension of sentence). They denied, however, that they assured defendant he would serve only ten and one-half years, and they denied having discussed the intentions of the Brumfield family. With respect to the place at which defendant would be confined, they contend that they promised defendant only that they would do what they could to try to convince the Department of Corrections not to confine him to Angola, and that they were still intending to make that effort even though defendant refused to testify at the trial of Eugene Redwine.

We note that defendant did not call the attorney who represented him during these negotiations to testify at the hearing on his motion. We note, in addition, that in response to the district attorney’s question on cross-examination, “What made you change your mind and decide to ask to change your plea?,” defendant stated that his decision was prompted in part by his rekindled belief in God and by his feeling that he did not commit the murder or armed robbery, although he admittedly participated in a burglary of the Brumfield premises in that he drove the “get-away” car.

The applicable provision which governs the disposition of this case is Article 559 of the Louisiana Code of Criminal Procedure. That article provides in pertinent part that:

“The court may permit a plea of guilty to be withdrawn at any time before sentence.”

The discretion to permit a guilty plea to be withdrawn is vested in the trial judge. State v. Baudoin, 334 So.2d 186 (La.1976); State v. Barber, 262 La. 443, 263 So.2d 719 (1972). The discretion accorded the trial judge under this provision, however, cannot be exercised arbitrarily and abuse of that discretion can be corrected upon appellate review. State v. Baudoin, supra. We must therefore decide whether the trial judge abused his discretion when he refused to permit the guilty plea to be withdrawn.

Our review of the record convinces us that the trial judge did not abuse his discretion in refusing to permit defendant to withdraw his guilty plea. Defendant’s response to the trial judge’s Boykin questions indicate that he fully understood the consequences of his plea and the nature of his sentence. The trial judge was aware of the fact that defendant was a native of Hungary and might have had some difficulty in understanding the English language. In view of this fact, the trial judge very commendably attempted to inform defendant of his rights in the simplest of terms. Defendant’s responses were intelligent and well articulated. They clearly indicate that he understood the trial judge’s explanations and the questions propounded to him. The evidence does not support the contention that the district attorney’s office, in plea bargaining with defendant, made any promises which it could not legally keep. We are satisfied, in view of the trial judge’s extensive interrogation of this defendant prior to his acceptance of the guilty plea, that he could not reasonably have believed that the district attorney or the assistant district attorney had the power or authority to determine where he would serve his sentence or the power to assure him a parole after serving ten and one half years. And it was made quite clear to him that with respect to the former, the district attorney was promising no more than an attempt in this regard.

We find the assignment without merit. Accordingly, we affirm defendant’s conviction and sentence.

      . Defendant has not yet commenced serving his term. Thus it remains to be seen whether defendant will in fact succeed in his effort to avoid serving time at Angola.