author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Raymond DECUIR.
    No. 62108.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Allen R. Ingram, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., David F. Hutchins, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Raymond Decuir was indicted by the grand jury for the crime of forcible rape in violation of La.R.S. 14:43.1. After trial by jury, defendant was found guilty as charged and sentenced to serve twelve years at hard labor. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence.

Defendant contends the trial judge erred in failing to permit him to cross-examine the rape victim concerning an incident involving her prior sexual conduct and reputation for chastity. He argues that the evidence was admissible to attack the credibility of the witness by showing her bias, interest or corruption.

The record reflects that on cross-examination, defendant sought to question the rape victim, a seventeen-year-old, unmarried girl with two children, concerning the circumstances surrounding the birth of her first child. The state objected to this inquiry, and defendant, outside the presence of the jury, stated that he sought to establish that at the age of fourteen, the victim had become pregnant while unmarried and had told her mother that her boyfriend had raped her. The trial judge ruled that, since the evidence related to prior sexual conduct and reputation for chastity of the rape victim not arising out of the victim’s relationship with the accused, it would not be admissible under La.R.S. 15:498.- Hence, he refused to permit defendant to pursue this line of questioning.

La.R.S. 15:491 provides that, when the witness’ credibility is attacked, the inquiry must be limited to general reputation, and cannot go into particular acts, vices or courses of conduct. More specifically, in 1975, the legislature passed Act 732 (La.R.S. 15:498) which precludes an attack on the credibility of a rape victim by evidence of prior sexual conduct and reputation for chastity except for incidents arising out of the victim’s relationship with the accused.

However, La.R.S. 15:492 provides:

When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same, (emphasis added)

Thus, we have traditionally allowed a defendant in a criminal case to attack the credibility of a witness by cross-examination directed at possible bias or interest which might influence the witness’ perceptions or color his testimony. State v. Kellogg, 350 So.2d 656 (La.1977); State v. Robinson, 337 So.2d 1168 (La.1976); State v. Lewis, 328 So.2d 75 (La.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 98, 50 L.Ed.2d 98 (1976). This broad right to attack the credibility of a witness for bias or interest is dictated not only by La.R.S. 15:492 authorizing examination to show bias or interest, but also by the statutory right to full cross-examination, La.R.S. 15:280, and the constitutional right of confrontation, La.Const. art. 1, § 16; U.S.Const. amend. VI. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 1347 (1974); State v. Kellogg, supra.

However, the bias permitted to be exposed must be personal against the defendant rather than general in nature, and the interest must be particular to the case; therefore, questions or evidence as to general prejudices or special biases or interests too irrelevant to or remote from the issues of the case at trial have been considered improper as impeachment. State v. Lewis, supra; State v. Robinson, supra. See also La.R.S. 15:494: “It is not competent to impeach a witness as to collateral facts or irrelevant matter.” However, in State v. Cappo, 345 So.2d 443 (La.1977), we held, under the facts of that case, that possible corruption may be shown by evidence that the witness had brought false charges in the past if such evidence was relevant to establish a present motive to falsify testimony.

In the instant case, defendant sought to elicit testimony that the rape victim had previously falsely claimed to have been raped. Although such testimony concerns the prior sexual conduct of the victim other than with the accused, defendant maintains that it is admissible to establish corrupted motive on the part of the witness. We do not agree. The evidence of the victim’s earlier rape claim is not relevant to the issue of her credibility and therefore was properly excluded by the trial judge. The motivation for a pregnant, unmarried fourteen-year-old girl to lie to her mother that she was raped is apparent. Moreover, defendant made no attempt to show that any formal charge resulted from the incident. Nor does defendant suggest any correlation between that incident and this charge of forcible rape against a stranger whose encounter with the victim would not have been discovered had she not revealed it. Thus, the earlier occurrence did not suggest a motive on the part of the witness to falsify her testimony at this trial.

In view of our finding that the evidence sought to be elicited was not competent to impeach the witness because of its irrelevancy and was therefore inadmissible, we need not consider the applicability of La. R.S. 15:498 where the evidence of prior sexual conduct of a rape victim is in fact relevant to establish bias, interest or corruption on the part of the witness.

DECREE

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

DENNIS, J., concurs in the result and assigns reasons.

DENNIS, Justice,

concurring.

I concur in the majority’s conclusion that the victim’s sexual history was not relevant to any fact at issue in the present case and that it was therefore proper for the trial court to disallow cross-examination on that subject. However, I feel that this case has exposed an infirmity of constitutional dimensions in our rape shield law, La.R.S. 15:498, which must be addressed.

By excluding evidence of a rape complainant’s sexual conduct with any person other than the accused, La.R.S. 15:498 serves important goals: it abates the victim’s ordeal at trial, lessens the possibility that inflammatory evidence of his or her sexual history will unjustly influence the verdict and encourages reports of rape. But to the extent that it excludes evidence which is genuinely relevant, it may overreach its legitimate aims and trench upon the accused’s constitutional right to a fair trial.

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the United States Supreme Court found that Alaska’s ■policy interest in enforcing a protective statute comparable to our La.R.S. 15:498 was subordinate to the defendant’s right of confrontation. At Davis’ trial for grand larceny and burglary, the defense had proposed to show that the state’s principal witness, a juvenile on probation for burglary, might have falsified his testimony to shift suspicion away from himself or, afraid of probation revocation, might have been subject to undue pressure from police to identify Davis. However, the trial judge, relying on a juvenile shield law, forbade the use of the witness’ juvenile record to show the existence of possible bias. The Supreme Court held that the ruling had denied Davis his right of effective cross-examination, a right which in this setting was paramount to the state’s interest in protecting the anonymity of juvenile offenders. The implications of Davis for rape shield laws are readily apparent, and at least two other jurisdictions have found such statutes unconstitutional as applied to exclude evidence indicating bias on the part of the complainant. State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976); State v. DeLawder, 28 Md.App. 212, 344 A.2d 446 (1975).

I do not mean to suggest that a rape victim’s privacy may no longer be safeguarded against irrelevant attacks on his or her general credibility. Nor do I subscribe to the majority’s statement that “the bias permitted to be exposed must be personal against the defendant” (emphasis supplied). Bias or interest in any form which might color a witness’ testimony may be explored on cross-examination. The ultimate question is one of relevancy, and it cannot be reasonably determined by an inflexible rule having no regard for the facts.of a particular case. Rather, the decision whether to admit evidence of the complainant’s prior sexual conduct should be consigned to the trial judge who can delicately weigh the competing interests of complainant and defendant.

      . Defendant has neither briefed nor argued Assignment of Error No. 2. Hence, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.R.S. 15:498 provides:
      Evidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Ronald WASHINGTON.
    No. 62124.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Lyall G. Shiell, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Ronald Washington was charged by bill of information with possession of heroin, a violation of R.S. 40:966. He was tried by jury, found guilty as charged, and sentenced to serve ten years at hard labor. On appeal he urges thirteen assignments of error. We deem it necessary to discuss only assignments of error one and eleven. The remaining assignments we find to be without merit.

ASSIGNMENTS OF ERROR NOS. 1 AND 11

By these assignments defendant contends that the trial court erred in denying his motion to suppress evidence and in admitting the evidence at trial. At a hearing on the motion the state and defense presented divergent accounts of the events leading up to the warrantless arrest of defendant and the seizure of evidence.

State’s evidence at hearing on motion to suppress: Officer David Peralta of the New Orleans Police Department testified that on the morning of December 6, 1975, he received a call at his office from a confidential informant who reported that a man was dealing heroin from a van in the area of the Streamline Bar on Fern Street. During several hours of surveillance, Peralta observed defendant repeatedly emerge from the bar, walk to a van parked at the corner, enter the van after glancing up and down the street, and return into the bar followed by a group of people in the area. At one point, Peralta summoned another officer to “check on” defendant. When this officer approached him defendant put something in his mouth and swallowed it. The officer ran defendant’s name through the computer and finding nothing released him.

While watching defendant as he resumed his prior activity, Officer Peralta’s attention was engaged by the movement of a large number of people from the Streamline Bar to an area behind the bar reached by an alleyway. Suspecting that illegal activity was being conducted there (in fact it was later determined that a dice game had been in progress), Peralta called in other police officers to help him raid the bar. At 3:15 p. m., the police moved in. Coincidentally defendant was standing beside the van when the officers arrived and Peralta, approaching the bar from behind defendant, observed his reaction unseen. Defendant threw a matchbox into the truck and dropped a foil packet to the ground. Peral-ta retrieved the packet and finding that it contained heroin, he arrested defendant and seized the matchbox (later found to contain heroin also) from the truck. In the meantime, the rest of the task force had discovered the illegal dice game behind the Streamline and made eighteen arrests.

Defense evidence at hearing on motion to suppress: Defendant testified that he went to the Streamline bar with Curtis Turner, a friend who drove there in his delivery van. Turner became absorbed in the dice game and sent defendant to the van, once to pick up some checks and another time to get cigarettes. On one of these trips, a police officer who had been observing the dice game stopped and searched the defendant, then released him after checking him through the computer. When the raid occurred, defendant had just concluded a visit to a friend in the neighborhood and seeing the activity at the Streamline, he went to Alton’s Bar two blocks away. Peralta and another police officer sought him out there, returned him to the truck which they believed to be his, searched the truck and arrested him for the possession of drugs found inside. A defense witness testified that he had seen defendant led handcuffed between officers from Alton’s Bar to the van near the Streamline.

Defense counsel argues in brief that the record does not establish probable cause to search defendant nor an abandonment of the seized narcotics.

The trial judge obviously accepted the testimony of the police officers rather than that of the defendant and the sole defense witness at the motion to suppress. Because the trial judge is in a better position to evaluate the credibility of the witnesses, his conclusion concerning their credibility is entitled to great weight and will not be disturbed on review unless clearly erroneous. State v. Gaines, 347 So.2d 1153 (La.1977).

Accepting Officer Peralta’s account of the events which transpired pri- or to defendant’s arrest, the conduct of the police in this case was lawful. The officer’s testimony may not have established grounds to detain defendant prior to the examination of the discarded heroin, but this issue need not be resolved since defendant’s abandonment of the foil packet was not a product of police detention. Compare, State v. Ryan, 358 So.2d 1274 (La.1978); State v. Smith, 347 So.2d 1127 (La.1977); State v. Cook, 332 So.2d 760 (La.1976). After setting forth what was at least a basis for interest in defendant, Per-alta emphasized that when the police approached defendant, they were moving toward the Streamline bar, not especially toward defendant. Defendant’s erroneous belief that the officers, a significant distance away, intended to confront him is not chargeable to the police. Compare, State v. Smith, supra; State v. Saia, 302 So.2d 869 (La.1974). Consequently, when he abandoned the foil packet, he abandoned any reasonable privacy interest in it, and there was no constitutional prohibition against the officer’s retrieving it. See, State v. Ryan, supra.

Once Officer Peralta had examined the contents of the packet, he was justified in arresting defendant and seizing the matchbox from the van. See, La.C.Cr.P. Art. 213; State v. Robinson, 342 So.2d 183 (La.1978); State v. Gordon, 332 So.2d 262 (La.1976). Therefore, the motion to suppress was properly denied.

These assignments lack merit.

Decree

For the foregoing reasons the conviction and sentence of the defendant Ronald Washington are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      .The remaining eleven assignments are presented in eight arguments as follows:
      2. The trial court erred in denying defendant’s motion for mistrial based on a defense witness’ possibly being observed by the jury in handcuffs.
      3. The trial court erred in overruling defense objection to witness’ offering his conclusion. 4. 6, 7. The trial court erred in overruling defense objection to trial court’s questioning of police officer not qualified as a fingerprint expert, and commenting on witness’ qualifications.
      5.The trial court erred in overruling defense objection to court’s prompting a state witness.
      8, 9. The trial court erred in overruling defense objection to police officer’s testimony regarding track marks, and to examination for track marks in jury’s presence.
      10. The trial court erred in overruling defense objection to improper rebuttal examination.

        12. The trial court erred in overruling defense objection to argument concerning matters not in evidence.
      13. The trial court erred in overruling defense objection to improper rebuttal argument by state.


author: SANDERS, Chief Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Melvin WEBER.
    No. 62253.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      A. J. Boudreaux, Indigent Defender Bd., 24th Judicial Dist., Kenner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Patrick Leitz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SANDERS, Chief Justice.

The State charged Melvin Weber with simple burglary, a violation of LSA-R.S. 14:62. The defendant pled not guilty and not guilty by reason of insanity. A jury found him guilty and the court sentenced him to nine-years’ imprisonment.

The defendant appeals. He relies on one assignment of error for reversal of his conviction and sentence.

We adduce the following context facts:

As Sergeant Thomas Goscienski and his wife watched television one night, they heard a door slam. Looking through a window, the sergeant saw a black male crouching and sorting through items on the utility room floor. The sergeant put his gun on the man whom he then recognized as Melvin Weber. When he asked Weber what he was doing, he replied, “[g]ee, I must have made a mistake because I used to work around here.” The sergeant then arrested him.

The defense’s argument challenges the court’s ruling declaring him mentally capable or proceeding to trial and the jury’s verdict finding him sane at the time of the offense.

Counsel filed a motion for a sanity commission and hearing to determine defendant’s present mental capacity to proceed to trial. The reason for his request was that the defendant told him that he did not know he had been arrested or why he had been arrested or incarcerated. The court appointed Dr. DeVillier and Dr. Sanders to examine defendant relative to his capacity to understand the proceedings and to assist in his defense.

Dr. DeVillier’s written report contains the following pertinent information gathered concerning an October 18, 1976, interview: The defendant stated that he has worked as a busboy at the Hilton Hotel for all his working life and that he completed the twelfth grade; he denied being hospitalized or receiving any psychiatric treatment; he stated that he had been “picked up” a couple of times, but never stayed in jail; another doctor informed Dr. DeVillier that the defendant may have been hospitalized and was in jail in 1978 and 1975 and was evaluated at those times; the defendant stated that he was presently charged with driving without a license, being intoxicated, and trespassing; the doctor observed a noticeable spasticity of defendant’s lower extremity with his gait, but he denied having any problem walking; he was oriented in all spheres and understood his present circumstances; his intelligence is probably of low average range; his thinking seemed very concrete and simple, his affect blunted; he seemed uninterested in supplying accurate answers to the questions. Dr. DeVillier concluded that the defendant had probable simple schizophrenia and that he “would be considered legally sane in that he understands right from wrong and is mentally competent to stand trial since he understands the nature of charges against him and could assist counsel.”

Dr. Sanders’ written report presents the following pertinent information obtained from and about the defendant on October 4, 1976: The defendant stated that he was charged with receiving stolen property; he was uncommunicative during the examination; he denied any type of mental or medical disorder or problem; he stated that he never worked or attended school; the doctor noticed that he walked with a marked scissor’s gait, and the defendant stated that he had no problem walking; he frowned most of the interview; his affect was appropriate and his associations intact; he gave the day of the week as the sixth day of Thursday and the date as August 8,1974; he could repeat five digits in sequence and could reverse three digits in sequence; rough testing indicated that his IQ is below normal and that he was socially and culturally deprived. Dr. Sanders concluded that the defendant had borderline to mild mental retardation and that he was legally sane “in that he understands the difference between right and wrong in regard to the nature of the act of which he is accused” and “at the time of the commission of the alleged crime and at the present time [he] is legally sane and is able to assist counsel in his defense if explanations are couched in very concrete, simple terms.”

At the lunacy hearing, Dr. DeVillier’s testimony reflected the information in his report. Both parties stipulated that if Dr. Sanders testified he would testify as to what was in his report. Finding the defendant legally sane and able to assist counsel, the court stated:

“Dr. Sanders corroborates and agrees with Dr. DeVillier that the defendant is legally sane and able to assist counsel and understand the nature of the proceedings against him. They have some limitations on his intelligence, but intelligence is not the criterion for whether you stand trial or not, or we wouldn’t have anybody in the jails.
“So, I am going to declare this person as being legally sane and able to assist counsel in his own defense.”

At trial, only Sergeant Goscienski testified for the State.

The defense called Dr. DeVillier, whose testimony reflected what was in his written report. He added, however, that the defendant was reluctant to answer his questions, hesitating before he did so. He concluded that the defendant was capable of assisting counsel and of forming specific intent. Dr. Arnesson, an expert in psychiatry, also testified for the defense. She examined the defendant in 1973 and 1975, but not concerning this case. She testified that in 1973 a court declared him legally insane due to his inability to assist counsel and understand the nature of the charges. He was then confined to a mental hospital for treatment of a neurological disease. In 1975, Dr. Arnesson’s examination revealed that he was legally sane and able to understand the nature of the charges and to assist in his defense. At both times the doctor found him to have a below average intelligence.

The defendant testified. The following exchanges occurred on direct, cross, and re-direct examination:

“[DEFENSE COUNSEL]: [Defendant], I call your attention to April 14th of last year. At about 10:45 pm, you’re charged with entering the utility shed of this policeman who testified with intent to commit a felony or steal something. Do you know anything about this at all?
“A. No, sir. I don’t know ... I was working for the residence of the police, and, uh, I dropped my haircomb, and (indecipherable) Miller opened up just like that. She came out and told me that, ‘You’se through work,’ just like that. And I said, ‘All right, we’re going to have a little fun out here,’ just like that. She said, ‘Yeah, you have a little fun out here. Don’t worry about me ’cause I am fixing to leave the house right now.’ Just like that. We stayed out there and played just like that, and wind up . we all went to jail just like that, and, uh, that’s all . that’s all . that’s all that happened. That’s all that happened that night that I know of.
It * * *
“Q. Melvin, do you remember being arrested by Sergeant Goscienski?
“A. No sir.
“Q. How did you get to jail?
“A. I the police officers brought us to the jailhouse. I don’t know nothing about Sergeant Gos-cienski though.
“Q. You don’t remember police putting handcuffs on you?
“A. No we was, uh, it was a game of fun. And (indecipherable) handcuffs on me. We were all lying handcuffed to each other. (Indecipherable sentence.) And we all got together and all went to the jailhouse together. Just like that. Just for the fun of it. Just like that. We were through working.” [Tr. pp. 80-81.]

The State asked him if he was ever convicted of a crime. He said no. The State then asked him about three specific convictions and sentences. The following occurred:

“A. No sir. I deny charges on that. All that evidence is greek . . .all that evidence is complete greek to me. I worked for these people and when I get through work, I be exhausted. So I took a walk up the road, which I was working for Mr. Red Norton, and, uh, in Zachary, Louisiana. (Indecipherable words) I’ll take a lie detector test on that. I have never been in no penitentiary. Never been in all (indecipherable) Miller. Always known I was Greg Miller. I go four (4) years getting my proof that they thought I was Greg Miller. I have ... I have never been convicted on no charges or nothing without knowledge. I have got no charges on me that I go penitentiary. I don’t have no knowledge of it. I had to plead my attorney for knowledge of it. I have got evidence that its pure (indecipherable) . . . That I would get convicted on no crime without knowledge. (Indecipherable sentence.) As far as Melvin Weber, my name wasn’t Melvin Weber till that time. That’s pure . I woke up just like this and there was a tag on my bed saying I was Melvin Weber. Just like that.
My name is, uh, Willie Howard. My name is not Melvin Weber. I woke up and found this ticket on my bed. And my name is not ... Is Greg Miller ... no, this is Greg Miller right here. Somebody looks just like me. I know somebody looks just like me.
It would be difference if I knew you were talking about somebody else in the Courthouse. But my name is Willie Howard. My name is not Melvin Weber. I’ve got proof that my name is Willie Howard.
I woke up and found this on my bed saying my name is Melvin Weber, Charlie Ward (indecipherable) in Zachary, Louisiana, where I worked for Mr. Red Norton, not a (indecipherable) with intentions . without knowledge.
“THE COURT: Go ahead, [prosecutor]. He denies that .
“Q. Your name is Melvin Allen?
“A. My name is Willie Howard.
“Q. Willie Howard?
“A. Yeah, I have proof that my name is Willie Howard. I woke up and found this on my bed. I told Charlie Ward that it was not me. He said, ‘This is you starting today.’ Just like that. And my name is Willie Howard, not Melvin Weber. That’s a difference if you are talking about Melvin Weber. My name is Willie Howard. And he told me he said it to Mr. Norton, and Mr. Norton, and Mr. Norton said to use this name right here. I said, ‘my name is Willie Howard.’ I know my name is Willie Howard. My name is not Melvin Weber.
“Q. Did you tell the doctors this? That your name wasn’t Melvin Weber?
“A. I told Mr. Red Norton my name was Willie Howard. He told me, ‘Use this name right,’ and nobody asked questions up to now. On what my name is. My name is not Melvin Weber. Charlie Ward told me ‘Use this name right here.’ I found it on my bed.
My name is Willie Howard. I know my name is Willie Howard. I’ve got a witness, and he told me, ‘See Mr. Red Norton . . .’
“Q. Melvin,
“A. . . . ‘and he said use that name right there.’ I said, ‘Well, tell the judge right now that you told me to use this name.’ My name is Willie Howard. I know nothing of Melvin Weber. Just like that. And he said .
“THE COURT: Wait, just answer his questions.
« * * *
“BY [DEFENSE COUNSEL]: I have one question. Melvin, is anything wrong with the way, you walk?
“A. No sir.
“Q. You walk all right?
“A. Yeah sir.” [Tr. pp. 82-86.]

In brief, the defendant argues that the court erred in finding him competent to stand trial since he did not understand what he was charged with, where he was, or who he was, and that his mental disease precluded “the ability to formulate the required specific intent.”

SANITY AT THE TIME OF THE OFFENSE

The defendant is presumed sane at the time of the offense. LSA-R.S. 15:432; State v. Rollins, La., 351 So.2d 470 (1977). The defendant has ,the burden of proving his insanity at the time of the offense by a preponderance of the evidence. LSA—C.Cr.P. Art. 652; State v. Marmillion, La., 339 So.2d 788 (1976).

LSA-R.S. 14:14 sets forth Louisiana’s insanity test. It provides:

“If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.”

The thrust of defense’s argument is that, although the experts concluded that he was able to distinguish right from wrong, his mental insanity, i. e., his schizophrenic personality and his borderline to mild mental retardation, prevented him from forming specific intent. In effect, counsel contends that defendant had diminished responsibility or capacity to commit the crime by reason of a mental defect or disease, short of insanity, precluding specific intent.

We reject this defense, as we have consistently done previously. A mental defect or disorder short of legal insanity cannot serve to negate the specific intent and reduce the degree of the crime. State v. Jones, La., 359 So.2d 95 (1978); State v. Johanson, La., 332 So.2d 270 (1976); State v. Berry, La., 324 So.2d 822 (1975); State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966). Our Legislature formulated the insanity test in LSA-R.S. 14:14, and any modification or liberalization of the test must come from that body.

PRESENT CAPACITY TO PROCEED

Louisiana Code of Criminal Procedure Article 641 provides:

“Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”

The defendant carries the burden of establishing by a clear preponderance of the evidence that he lacks the capacity to understand the object, nature, and consequences of the proceedings against him, in a rational as well as factual manner, to consult with counsel in a meaningful way, and to assist rationally in his defense. State v. Bennett, La., 345 So.2d 1129 (1977); State v. Morris, La., 340 So.2d 195 (1976); State v. Veal, La., 326 So.2d 329 (1976). A judge’s determination of defendant’s present mental capacity is entitled to great weight on appeal. State v. Morris, supra; State v. Flores, La., 315 So.2d 772 (1975). As due process requires that defendant be competent to stand trial, we must examine the record carefully to determine if the judge abused his discretion. State v. Bennett, supra, and the cases cited therein.

Appropriate considerations in determining whether the defendant is fully aware of the nature of the proceedings and is able to assist in his defense include whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he has an awareness of his civil rights; whether he undérstands the consequences of conviction; whether he is able to recall and relate the facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to testimony of witnesses and inform his attorney as to any distortions or misstatements; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. State v. Bennett, supra; State v. Augustine, 252 La. 983, 215 So.2d 634 (1968).

The record raises a serious question concerning defendant’s capacity to stand trial. It appears from the trial court’s reasons that the court based its ruling primarily on the experts’ conclusions and not on the pertinent factual considerations outlined above. As we stated in State v. Bennett, supra:

“At the inquiry into defendant’s competency, these vital factual considerations were supplanted by the physicians’ conclusion of law that defendant was able to assist counsel. Only the court, not the doctor, is qualified to make this decision.” [Citations omitted.]

We remand the case to the trial court for a re-evaluation of the defendant’s capacity at the time of his trial in light of the considerations set forth above. The trial judge should note the following: The discrepancies in the defendant’s statements to the physicians concerning his work and school history; the fact that he denied having any mental or medical problems; the fact that Dr. DeVillier reported that defendant “seems uninterested in supplying accurate answers to the questions”; the fact that Dr. Sanders reported that the defendant could assist counsel if “explanations are couched in very concrete, simple terms”; the fact that the defendant was oblivious to the year. We are most concerned with his telling each physician that he was charged with a different crime, neither of which was the crime charged, and the defendant’s confusion concerning his name and identity. His ramblings at trial suggest that he did not understand the nature or importance of the proceedings.

It is unnecessary to set aside the jury verdict at this time because we find no other error and the issue as to competence may be clarified on remand. See State v. Bennett, supra; State v. Simmons, La., 328 So.2d 149 (1976). We, therefore, remand for a hearing and reserve to the trial judge the right to set aside the conviction and sentence should he find that the defendant lacked the capacity to stand trial. If, on the other hand, the trial judge determines that the defendant was competent to stand trial, the right to appeal from the ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

For the reasons assigned, the case is remanded to the district court for further proceedings in accordance with law and the views herein expressed.

SUMMERS and DIXON, JJ., dissent.

SUMMERS, Justice

(dissenting).

I agree that the record contains no other error, save the ability of defendant to assist in his defense. However, I cannot agree to the remand. If the State has not made out its case as the majority finds, the conviction should be set aside. To remand gives the State another opportunity to convict the defendant, contrary to the constitutional guarantee against double jeopardy. La. Const. art. I, § 15.


author:
      TATE, Justice.
      DIXON, Justice MARCUS, Justice

text:
    STATE of Louisiana v. Myles WASHINGTON.
    No. 62254.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Horton & Kolb, Bernard A. Horton, Vincent C. Cuccia, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Jim Maxwell, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
   TATE, Justice.

The defendant appeals his convictions on two counts of violations of La.R.S. 40:966, the possession of heroin with intent to distribute (Count 1) and the possession of cocaine with intent to distribute (Count 2). The sole assignment of error is directed at the trial court’s denial of his motion to suppress the drugs as unconstitutionally seized.

The drugs were found and seized as a result of a search conducted subsequent to the defendant Washington’s detention at an airport by federal agents. The latter were scanning the deplaning passengers for possible narcotics couriers and stopped the defendant for questioning.

The Issue and Applicable Legal Principles

As the state’s brief states: “The key issue before this court is whether or not the initial investigatory stop by the federal agents and the subsequent detention for identification purposes, arrest, search and seizure, was constitutionally valid in view of the surrounding circumstances.”

La.C.Cr.P. art. 215.1(A) authorizes a law enforcement official to “stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.”

As we summarized in State v. Smith, 347 So.2d 1127, 1128 (La.1977):

“The right of the police to make an investigatory stop must be based upon reasonable cause sufficient to cause them to suspect the detainee of past, present, or imminent criminal conduct. State v. Weathers, 320 So.2d 892 (La.1975); State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). As these decisions note, the reasonable cause must be determined under the facts of each case, by whether the officers had sufficient knowledge of particular circumstances sufficient to permit them to infringe upon the individual’s right to be left alone free of government interference with his liberty.
“If, however, the officers do not have the right to make an investigatory stop, evidence seized or otherwise obtained as a result thereof cannot constitutionally be admitted into evidence against a criminally accused. State v. Truss, 317 So.2d 177 (La.1975); State v. Finklea, 313 So.2d 224 (La.1975); State v. Jones, 308 So.2d 790 (La.1975); State v. Saia, 302 So.2d 869 (La.1974). * * * ”

The Initial Stop

The two federal agents were scanning passengers from a flight which originated in Los Angeles, because that city was known as a drug source center. They observed that the. defendant Washington looked nervously around, and so they followed him.

Washington kept looking around as he walked up the concourse to the airport lobby, went into a restroom, came out, and then used a telephone. Washington then went down to the baggage area, still looking around.

When Washington turned to leave the baggage area, the officers stopped him. The officer admitted that the only basis for stopping Washington at that time was “that he appeared to be nervous when he was walking through the concourse, because he kept on looking over his shoulder, and he made a telephone call,” and they were “under the assumption that he arrived from Los Angeles.” Tr. 10. The agents apparently felt that these facts, together with the circumstance that Washington approached the baggage counter but did not at the time claim his baggage, met a profile common to drug couriers.

These facts upon which the stop was based are at least equally consistent with innocent behavior, such as the actions of a deplaning passenger expecting to be met at the airport by someone he does not find there. They do not furnish reasonable cause to suspect the individual of unlawful activity on the basis of specific and articula-ble facts sufficient to furnish objective grounds for the police suspicion, as is constitutionally and statutorily required before governmental agents may stop an individual and infringe upon his right to be left alone. State v. Davis, 359 So.2d 986 (La.1978); State v. Ryan, 358 So.2d 1274 (La.1978).

This conclusion is consistent with almost every decision concerning similar facts.

In State v. Saia, 302 So.2d 869 (La.1974), we invalidated a forcible stop which was made on no other basis than the defendant’s emergence from a residence suspected of being a drug traffic center. In State v. Trass, 317 So.2d 177 (La.1975), we held that a mere startled look when observing police did not amount to reasonable cause to stop and frisk. In State v. Kinnemann, 337 So.2d 441 (La.1976) a stop of a vehicle and subsequent discovery of contraband was ruled by us to have been made without probable cause, where the only basis for the stop was the observation by police that the defendant emerged from a “drug center” holding two paper bags. See also State v. Davis, 359 So.2d 986 (La.1978) (person smoking hand-rolled cigarette who threw it away when he saw officers, unlawfully stopped as a suspected marijuana smoker).

Other courts have held that the circumstance that the individual at the airport had the characteristics of the “profile” of a drug courier do not by themselves justify an invasion of his right to privacy by stopping and questioning him, at least when they indeed are consistent with innocent behavior. While the circumstance may be a factor partially justifying a suspicion, there must be additional articulable facts or reliable information which indicate that the suspect himself is engaged in criminal activity.

See: United States v. Pope, 561 F.2d 663, 668 (CA 6, 1977); United States v. Lewis, 556 F.2d 385, 389 (CA 6, 1977); United States v. McCaleb, 552 F.2d 717 (CA 6, 1977).

The evidence obtained as a direct result of this unlawful stop, based upon then-unfounded suspicion, is tainted and thus constitutionally inadmissible into evidence against the accused. State v. Davis, 359 So.2d 986 (La.1978); State v. Smith, 347 So.2d 1127 (La.1977). The trial court was in error in overruling the defendant’s motion to suppress such evidence.

Accordingly, we reverse the conviction and sentence, and we remand the case to the district court for a new trial in accordance with law.

REVERSED AND REMANDED.

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

DIXON, J., concurs with reasons.

MARCUS, J., dissents and assigns reasons.

DIXON, Justice

(concurring).

Defendant was illegally arrested, his claim check illegally taken from him, his baggage retrieved and examined by police without probable cause; illegally obtained information was used to obtain the search warrant.

MARCUS, Justice

(dissenting).

I consider that under the facts of this case the federal agents had reasonable cause to make an investigatory stop. The fact that the stop took place at an airport is a circumstance of paramount importance. Airports, like borders, differ significantly from other public places in that they constitute points of entry and departure. Not only do people have a lesser expectation of privacy at such locations but also their conduct is more suspect causing reasonable cause to stop to be reached at an earlier point than at other public places.

I respectfully dissent.

      . I.e., although they did not then know whether he had any baggage, or whether he had in fact come from Los Angeles instead of from an intermediate stop.

      . Illuminative of the issue are also decisions concerning whether suspicious behavior at the airport, together with prearrival information indicating unlawful activity on the part of the arriving passenger, justify the passenger’s detention by narcotics agents. United States v. Gill, 555 F.2d 597 (CA 6, 1977); United States v. Craemer, 555 F.2d 594 (CA 6, 1977); United States v. Hunter, 550 F.2d 1066 (CA 6, 1977); United States v. Scott, 545 F.2d 38 (CA 8, 1976).

      . When the federal agents stopped the accused, they found he was carrying a ticket in a different name than his driver’s license. They took his baggage check from him and brought him and his suitcase to their office. When he refused to consent to their search of his suitcase, they arrested him, returned the suitcase to the baggage counter, had a trained dog sniff it (when it seized the suitcase and barked, allegedly they then had probable cause to believe the suitcase had drugs in it), and then obtained a search warrant based upon the indicia they had obtained as a result of their illegal stop and their illegal seizure of the accused’s baggage check.
      In view of our conclusion that the fruits of the initial illegal stop are inadmissible, it is unnecessary to note further that, even if the initial stop had been justified, no probable cause for the detention (arrest) of the individual and the seizure of his baggage check was furnished by the circumstance that his ticket was in another name than his driver’s license, in absence of additional specific acts or reliable information indicating unlawful activity on his part. See, e.g., the decisions cited in footnote 2.


text:
    STATE of Louisiana v. Clarence L. WILLIS.
    No. 62345.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Victor L. Roy, III, Roy, Kiesel, Patterson, Hudson & Abadie, Victor A. Sachse, III, Breazeale, Sachse & Wilson, Claude F. Rey-naud, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On September 25, 1975 the East Baton Rouge Parish Grand Jury indicted Clarence Willis for aggravated rape, a violation of R.S. 14:42. Since the crime with which defendant was charged was committed on September 13, 1975, the law applicable was that enacted by Act 612 of 1975, which provided a penalty of death in the event of conviction. However, Willis’ trial did not commence until September 13, 1976 and concluded when the jury returned a verdict of guilty as charged on September 17,1976. The dates of such trial commencement and jury verdict were subsequent to the decision of the United States Supreme Court in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). That decision decreed that the imposition and carrying out of the death penalty in aggravated rape cases in Louisiana constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The fact that the death penalty was unavailable because of the Selman decision was recognized by the trial court at sentencing, for notwithstanding the jury verdict finding Willis guilty as charged Willis received fifty years, the maximum sentence imposable for the next lesser included offense, attempted aggravated rape, in accordance with this Court’s decisions in State v. Sledge, 340 So.2d 205 (La.1977) and numerous other cases deciding the applicable penalty in aggravated rape cases affected by the Selman decision. On this appeal of his conviction and sentence Willis urges seventeen assignments of error. We find it unnecessary to consider any of the assignments other than assignment two.

ASSIGNMENT OF ERROR NO. 2

While the voir dire examination of prospective jurors was being conducted the court upheld twenty-eight state challenges for cause. The challenges were based on these jurors’ stated inability to find the defendant guilty as charged, even in the event that the state satisfied its burden of proof, in light of the fact that such a finding would lead to the imposition of the death penalty. The defense objected to the dismissal of the prospective jurors for cause, arguing that the death penalty under the aggravated rape statute was unconstitutional.

In arguing this assignment defendant points out that the prospective jurors’ attitude toward capital punishment should have been irrelevant because the death penalty was not available at the time of his trial in the event of a conviction on the charged offense. The State concedes that Selman held the mandatory death penalty for aggravated rape constitutionally invalid, but argues that the Selman ruling was not final as of the September 1976 date of Willis’ trial, there having been pending at that time a rehearing application which was not denied by the United States Supreme Court until October 12, 1976.

Our law provided at that time, as it does now, for a state challenge for cause in the event a prospective juror in a capital case has conscientious scruples against infliction of capital punishment which would preclude a vote in favor of conviction of the crime charged regardless of the evidence developed at trial, or would prevent an impartial decision as to a defendant’s guilt. We must determine whether at the outset of this September, 1976 trial defendant was actually exposed to imposition of the death penalty and, thus, whether the challenges sustained by the trial court were proper.

A determination that the trial court’s allowing these challenges for cause was erroneous compels a reversal of this defendant’s conviction since rulings sustaining the challenges, if erroneous, have the effect of granting to the State more peremptory challenges than that to which it is entitled by law. In fact, the erroneous dismissal of the twenty-eight prospective jurors here based on their inability to return a verdict which would result in the imposition of the death penalty, would in this case afford the state more than twice the number of peremptory challenges allowed by law. Furthermore, defendant here contends these challenges had the effect of excluding from the jury persons who, arguably at least, would be more likely to apply scrupulously the state’s burden of proof, defendant’s presumption of innocence and other pertinent provisions of law on which they would be instructed during the trial.

As noted hereinabove, the United States Supreme Court determined in Selman, supra, that the death penalty in aggravated rape cases in Louisiana was unconstitutional. That opinion was rendered on July 6, 1976. Rule 58 of the United States Supreme Court pertinently provides: “. . .A petition for rehearing of judgments or decisions other than those denying or granting certiorari, may be filed with the clerk in term time or in vacation, within twenty-five days after judgment or decision, unless the time is shortened or enlarged by the court or a justice thereof. .” In Selman, within twenty-five days following rendition of the decision of July 6, 1976, a motion for extension of time within which to file a petition for rehearing was filed by the state and was granted, allowing the state until September 1, 1976 in which to file the petition for rehearing.

However, unlike here in Louisiana, where a decision of this Court upon a criminal appeal becomes final only after a timely filed application for rehearing is denied the United States Supreme Court Rules provide differently. Rule 59 states in pertinent part:

[Mjandates shall issue as of course after the expiration of twenty-five days from the day the judgment is entered, unless the time is shortened or enlarged by an order of the court or of a justice thereof, or unless the parties stipulate that it be issued sooner. The filing of a petition for rehearing will, unless otherwise ordered, stay the mandate until disposition of such petition, and if the petition is then denied, the mandate shall issue forthwith. When, however, a petition for rehearing is not acted upon prior to adjournment or is filed after the court adjourns, the judgment or mandate of the court will not be stayed unless specifically so ordered by the court or a justice thereof. (Emphasis provided)

In Selman, supra, which was decided on the day of adjournment, the state applied for a stay of mandate at the time that it requested time within which to petition for rehearing. The stay of mandate sought by the state was denied, and the United States Supreme Court’s mandate was issued, (prior to the date [October 12, 1976] when the state’s application for rehearing was denied), on August 11, 1976. Thus the mandate of the United States Supreme Court in Selman, supra, by which the United States Supreme Court apprised this Court that its judgment in State v. Selman, (300 So.2d 467 [La.1974] was vacated insofar as it left undisturbed the death penalty imposed, had issued four and a half weeks prior to the commencement of defendant Willis’ trial, protecting Willis and others like him from exposure to the death penalty. Accordingly, inquiry by the state regarding prospective jurors’ scruples against capital punishment in this case was wholly irrelevant. C.Cr.P. art. 798’s state challenge for cause relative to conscientious scruples against infliction of capital punishment was not pertinent.

The state was allowed twenty-eight challenges for cause to which they were not legally entitled. Coupled with the four peremptory challenges which they also exercised, the effect of the rulings was the exercise by the state of more than the twelve peremptory challenges (C.Cr.P. art. 799) to which they were entitled. The negative implication of the second paragraph of C.Cr.P. art. 800 (see footnote three) is that these erroneous rulings do afford the defendant a ground for complaint.

Decree

Inasmuch as the error constitutes a substantial violation of a statutory right we are required to reverse defendant’s conviction. C.Cr.P. art. 921; State v. Lemelle, 353 So.2d 1312 (La.1978). Defendant’s conviction and sentence are thus reversed and set aside and the case remanded for re-trial.

REVERSED AND REMANDED.

      . The Selman decision decreeing the death penalty in Louisiana aggravated rape cases unconstitutional was based on the United States Supreme Court’s decision in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) which struck our state’s mandatory death penalty scheme. A year later, in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), the United States Supreme Court found the death penalty in aggravated rape cases unconstitutional per se.

      . C.Cr.P. art. 798 provides in pertinent part: It is good cause for challenge on the part of the state, but. not on the part of the defendant, that:
      ******
      (2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt; .

      . Article 800 of the Code of Criminal Procedure provides in pertinent part:
      The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.
      Article 799 sets forth the number or peremptory challenges available, providing:
      In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant. In all other cases, each defendant shall have six peremptory challenges, and the state six for each defendant.

      . Article 922 of the Code of Criminal Procedure states, in pertinent part:
      . . If an application for a rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.”


author: DIXON, Justice.

text:
    STATE of Louisiana v. Henry K. WEINBERG, Jr.
    No. 62434.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      William L. Crull, III, Dymond, Crull & Castaing, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Richard J. Petre, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-relator.
   DIXON, Justice.

Defendant Henry K. Weinberg, Jr. was charged by two bills of information with four counts of possession of a controlled dangerous substance (methaqualone, amphetamines, phentermine and pethidine) in violation of R.S. 40:967, and with two counts of possession with the intent to distribute a controlled dangerous substance (oxycodone) in violation of R.S. 40:967, and possession of a firearm after conviction of a felony in violation of R.S. 14:95.1. These cases (Nos. 263,148 and 263,151) were allotted to the same section for trial, and defendant filed motions to suppress the evidence and inculpatory statements. The trial court sustained defendant’s motions without assigning reasons. On application of the state, this court granted supervisory writs to review the ruling.

The state adduced the following facts. On January 4, 1978 a confidential informer contacted Agent William Renton, a narcotics officer in the Jefferson Parish sheriff’s office. The informant told Renton that within the last few days he had been to a New Orleans residence at 926 General Pershing Street to meet Randolph Welch and defendant Henry Weinberg. At the residence the informant heard both Welch and Weinberg brag that they had committed several armed robberies in Orleans and Jefferson Parishes; Welch said that he was the “stickup” man and Weinberg said that he was the “wheelman.” Also, the informer told Agent Renton he was shown a large quantity of percodan, demerol, dexidrene and other controlled dangerous substances and a chrome plated revolver that Welch claimed he had used to commit the robberies. Agent Renton told Sergeant Joseph Branham of the Narcotics Division of the New Orleans Police Department of the communication and vouched for the informant’s reliability. Sergeant Branham knew several armed robberies had been committed in Orleans and Jefferson Parishes during November and December of 1977. In nearly every case one man, armed with a nickle plated revolver, entered the establishment, frequently drugs were taken, and a car was usually seen speeding away.

Shortly after the communication, Sergeant Branham, New Orleans Detective Haab and Jefferson Parish Agents Drumm and Soto, watched Welch and Weinberg leaving the residence at 926 General Pershing Street. The officers arrested Welch and informed Weinberg that he was a suspect under investigation for armed robbery and possession of narcotics. Weinberg accompanied the officers to police headquarters where he was interrogated. Detective Haab testified that Weinberg was not “under arrest” at that time, but if Weinberg had attempted to leave, Haab would have probably placed Weinberg under arrest for armed robbery.

Weinberg was advised several times of his constitutional rights and told the officers he understood these constitutional safeguards. When told that a search warrant would be obtained to search the premises at 926 General Pershing Street, Weinberg expressed concern for his father, who had a bad heart. The defendant told the officers that if they did nothing to affect his father’s heart condition, he would show them where the narcotics were in the house. Prior to this statement Weinberg had not made any inculpatory statements. Subsequently, with a search warrant signed by Commissioner Nils Douglas, and with Weinberg assisting, the officers conducted a search of the residence at 926 General Pershing Street. Weinberg told the officers where to find his drugs and identified the drugs found as his drugs. The officers seized percodan, dexidrene, quaalude, dexa-myl, demerol and ionamin, along with a chrome plated revolver.

By one assignment of error the state argues that the trial court erred in granting the two motions to suppress the evidence and inculpatory statements. At the hearing on the motions, the trial court treated the two motions separately; therefore, this court will address the issues separately.

Defendant contends that the application for a search warrant did not state probable cause for the search at 926 General Pershing Street. Defense argues that Weinberg’s and Welch’s declaration against penal interest which was related by the informant to the police did not establish the reliability of that information, and that the information was uncorroborated hearsay. Defense further contends that the affidavit only stated that informant’s information has led to arrests in the past and not to convictions. Defense finally argues that the application for a search warrant stated that within the last “few days” the informant was at the residence, and thus the affidavit did not establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Consequently, the defendant contends that the affidavit did not satisfy the requirements of reliability of the informant and the information as required by State v. Paciera, 290 So.2d 681, 685-686 (La.1974).

From the United States Supreme Court cases relating to the probable cause necessary for issuance of a search warrant, the court in State v. Paciera, supra, stated: “. . . The affidavit submitted to the

magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the creditability of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information. See State v. Linkletter, 286 So.2d 321 (La.S.Ct.1973).”

Magistrates and courts must test and interpret affidavits in a common sense and realistic fashion. A grudging or negative attitude by reviewing courts will tend to discourage police officers from submitting their evidence to a judicial officer before acting. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Magistrates should not be confined to niggardly limitations or by restrictions on their common sense. Their determinations of probable cause should be paid great deference by reviewing courts, and the resolution of doubtful or marginal cases should be largely determined by the preference accorded to warrants. State v. Anderson, 357 So.2d 547 (La.1978), and cases cited therein.

The affidavit in the present case established the informant’s credibility. The affi-ants attested that the confidential informant supplied information in the past which led to arrests; such recitations support an informant’s reliability. In State v. Roach, 322 So.2d 222 (La.1975), the affidavit recited that the information supplied by the informant had resulted in sixteen arrests during the previous five months. This court found that this factor supported the informant’s credibility and there was no requirement that the arrests must have resulted in convictions.

Likewise, the affidavit sufficiently demonstrates that the information is reliable. The informant personally observed the chrome plated revolver and a large quantity of controlled dangerous substances in the possession of Weinberg and Welch. An informant’s direct personal observation is a factor indicating the credibility of the information. State v. Anderson, supra. Further, the informant stated that both Weinberg and Welch bragged that they had obtained the drugs from a series of armed robberies of drug stores. Weinberg’s “bragging” that these drugs were obtained by armed robbery constitutes an admission against penal interest. Such an admission lends credibility to the statement made by the defendant and relied upon by the informant and the affiants. State v. Ballansaw, 350 So.2d 146 (La.1977). See also, State v. Anderson, supra; State v. Gilbert, 354 So.2d 508 (La.1978); State v. Turner, 337 So.2d 1090 (La.1976). In addition, the affidavit states that one of the affiants corroborated the informant’s information by having the victim of an armed robbery view a set of six photographs and the victim identified the photograph of Welch as the man who robbed him with a nickle plated revolver and took controlled dangerous substances. The affidavit states that the affiants believed that the drugs and weapon were being kept at 926 General Pershing Street. This information, together with all the previous information, establishes the requisite reliability for the information given the officers.

The affidavit in the instant case stated that “within the last few days” the informant had observed the drugs and gun at 926 General Pershing Street. This time lapse of a few days before applying for the search warrant is still sufficient to establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. There was reasonable cause to believe the property would still be on the premises a few days after observation. The affidavit recites that the armed robbery in which Welch was later identified as the robber occurred on December 20, 1977, and the large quantity of drugs was still in Weinberg’s possession a few days before January 4, 1978. See State v. Gilbert, supra, where the time lapse before applying for the search warrant was one to two weeks after observation of stolen property.

The affidavit is sufficient to establish the reliability of both the informant and the information, and there was probable cause for the issuance of the search warrant. Hence, the trial court erred in granting defendant’s motion to suppress the evidence obtained from the search of 926 General Pershing Street pursuant to the search warrant.

In brief on the motion to suppress the inculpatory statements, the defense argues that the police lacked probable cause to arrest Weinberg, and that the interrogation of Weinberg was the product of the exploitation of his illegal arrest. Defense further argues that Weinberg’s inculpatory statements made after he was in physical custody were coerced. The state in brief contends that Weinberg was not initially arrested as was Welch, but Weinberg willingly accompanied police to headquarters when told that he was a suspect under investigation for armed robbery and possession of narcotics.

In State v. Robinson, 342 So.2d 183 (La.1977), this court reasoned that it is the facts and circumstances indicating an intent to affect an extended restraint on the liberty of the accused, rather than the precise timing of an officer’s statement, “you are under arrest,” that are determinative of when an arrest is made. During the hearing on the motion to suppress the inculpato-ry statements, the officer who was interrogating Weinberg testified that although Weinberg was not under arrest at the time, he was not free to leave the station, and if he had attempted to leave the officer would have placed him under arrest for armed robbery. There was also some suggestion that Weinberg was handcuffed. In the instant case, an arrest was effected when the police took Weinberg to the police station originally; there was an extended restraint on his liberty.

C.Cr.P. 213 provides in part that a peace officer may without a warrant arrest a person when the officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer. Reasonable cause which this court has treated under C.Cr.P. 213 as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Drew, 360 So.2d 500, 510 (La.1978) and cases cited therein. The law does not require that “reasonable cause to believe” be established by evidence sufficient to convict; the arresting officer need not be convinced beyond a reasonable doubt of the arrested person’s guilt. The standard of reasonable cause to believe is a lesser degree of proof determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. State v. Boyd, 349 So.2d 1256 (La.1977).

In the instant case the officers had probable cause or reasonable cause to arrest Weinberg: (1) there had been armed robberies of drug stores in Orleans and Jefferson Parishes during late 1977; (2) a nickle plated revolver had been used and drugs were taken in addition to money; (3) two men were usually involved, one as the “stickup” man, the second as the “wheel-man; ” (4) a confidential informant whose reliability had been confirmed before the arrest had seen a large quantity of controlled dangerous drugs and a chrome plated gun in the possession of. Welch and Weinberg at 926 General Pershing Street within the last few days; and (5) Weinberg and Welch had bragged to the informant that they had obtained the drugs in a series of armed robberies of drug stores in both Orleans and Jefferson Parishes and Weinberg bragged that he was the driver.

Defense further argues that Weinberg made inculpatory statements and agreed to cooperate with police at the station to avoid causing his father to have a heart attack when the police showed up with a warrant to search his father’s house; therefore, Weinberg’s will was overborne. Before a confession or inculpatory statement may be introduced into evidence, the state must prove affirmatively, and beyond a reasonable doubt, that the statement was freely and voluntarily made. C.Cr.P. 703(C); R.S. 15:451; State v. McGraw and Manchester, - So.2d - (La.1978), and cases cited therein. Furthermore, when the inculpatory statement is obtained during custodial interrogation, as in the instant case, the state must show that the accused was advised of his constitutional rights under Miranda. State v. Hutto, 349 So.2d 318 (La.1977).

In the present case the defense readily admits that Weinberg was advised of his Miranda rights several times, but the issue is whether Weinberg’s inculpatory statements were freely and voluntarily made. According to the state, Weinberg’s inculpa-tory statements were made in the following situation:

BY MR. PETRE, FOR THE STATE:
“Was he threatened in any way, by you or any other police officer in the office?
A I did not threaten him at all.
Q Any promises made to him in the office or before then?
A Well, if you want to call it a promise, was when he made a certain statement to us, and we made an agreement that nothing was done to his father.
Q Can you go into that, Officer?
A You want me to tell everything?
THE COURT:
Just go into that part.
THE STATE:
In relation with his father, nothing would be done to his father.
A All right. We advised him of his rights the second time in the office. We told him that the other subject had made statements to us in regard to things that were in the house and for the house. He said, ‘Well, before you do that, I have drugs in there. My father has a bad heart, I don’t want you to go in there and upset him, or arrest him’. I said, ‘If you show us where the drugs are nothing will be done to your father.’ That was it.” (Emphásis added).

Later on cross-examination, Sergeant Bran-ham further testified:

BY MR. CRULL FOR THE DEFENSE:
Q Well, he didn’t tell you anything until after you had the discussion about his father’s condition, is that correct?
A No. It was rather spontaneous. We told him that Welch had made statements to us, that we were going to apply for a search warrant for the residence, at that time, he said, ‘Well, before you do that, my father has a heart condition. I have drugs in there, I will turn them over to you, if you promise not to arrest my father or cause his heart condition to get worse.’ ” (Emphasis added).

The record does not indicate that the officers knew of the heart condition of defendant’s father nor does the record indicate that the officers intentionally applied for a search warrant to induce Weinberg to cooperate. The officers had probable cause to arrest Weinberg and to secure a search warrant without Weinberg’s consent or cooperation. The officers only promised not to upset defendant’s father after defendant made his inculpatory statement and offered to cooperate in the search. Weinberg’s inculpatory statement was freely and voluntarily made as a spontaneous response to the fact that the officers were applying for a search warrant and would search his father’s house. The trial court erred in sustaining the motion to suppress this incul-patory statement of Weinberg that he had drugs in the house.

During the subsequent search of the premises, Weinberg delivered some drugs to the officers, stating, “this is mine,” to distinguish Weinberg’s drugs from Welch’s drugs, which were never found. The defense also seeks to suppress this latter admission which was made after Weinberg had offered to show the officers where the drugs were and the officers had agreed that nothing would be done to Weinberg’s father. Weinberg’s inculpatory statement is not inadmissible merely because in making it he was motivated by his desire to protect his father. The proposal for consideration of his father was not suggested by the police to induce Weinberg to show them where the drugs were; the proposition originated with Weinberg. Considering the facts of this case, this admission was not so coerced as to render the statement involuntary and therefore inadmissible. See, People v. Matlock, 51 Cal.2d 682, 336 P.2d 505 (1959).

For the assigned reasons, the rulings of the district court on the motion to suppress the evidence and the motion to suppress the inculpatory statements are vacated and reversed. The case is remanded to the district court for further proceedings not inconsistent with this opinion.

DENNIS, J., concurs, being of the opinion that without the victim’s information there would have been no probable cause.

SUMMERS, J., dissents.

      .“THE FACTS AND REASONS FOR THE REQUEST OF THIS SEARCH WARRANT ARE:
      1. On Wednesday, January 4, 1978 Agent William Renton of the Jefferson Parish Sheriffs Office had occasion to speak with a reliable confidential informant, whose information in the past has led to arrests and whose information has been proven reliable through independent investigations conducted by Agent Ren-ton, who stated that within the last few days that he (the informant) had been to a residence located at 926 Gen. Pershing St. located in the Parish of Orleans. He stated that at this address he met two subjects who he knew to be Randy Welch and Kenny Weinberger. While at the residence the informant saw a large quantity of percodans, demerol, dexidrene, and other controlled dangerous substances in the possession of the above two subjects: The informant further stated that both subjects bragged that they had obtained the drugs from a series of armed robberies of drug stores in both Orleans and Jefferson Parishes. The informant, was further shown a chrome plated revolver that Welch stated that he used in armed robberies.
      2. On January 4, 1978 at (sic) Agent Renton relayed the above information to Sgt. Joseph Branham of the NOPD Narcotics Unit. Sgt. Branham then checked the NCIC MOTION system and learned that Welch was wanted in Orleans Parish for multiple theft charges. At 5:00 PM Agent Renton went to the Metairie Pharmacy located 246 Metairie Rd. and spoke with Dennis St. Pierre, the druggist. Mr. St. Pierre stated that he had been the victim of an armed robbery on December 20, 1977 and after viewing a set of 6 photographs identified a photograph of Randolph Welch as being the subject who held him up on December 20, 1977. Controlled Dangerous Substances were taken in this robbery and a nickle plated revolver was used.
      3. On Wednesday, January 4, 1978 Sgt. Joseph Branham and Officer Andrew Haab of NOPD with Agent Allen Drumm of the Jefferson Parish Sheriffs Office observed both Kenny Weinberg and Randolph Welch leave 926 Gen. Pershing St. and at about 5:15 PM the Officers arrested Welch for the wanted notices in the NCIC system in addition to the armed robbery of December 20, 1977 at the Metairie Pharmacy. Due to the above it is the belief of the affiants that the above drugs and weapon are being kept at 926 Gen. Pershing St.”

      . On cross-examination Agent Renton testified that the informant had given information in the past that had led to “several arrests” and “it would be somewheres (sic) between four (4) and ten (10) (arrests) . . . just as a wild guess.”

      . In brief the state explains why Weinberg was not initially arrested by referring testimony at the hearing of Sgt. Branham who testified that he lacked sufficient proof for a criminal conviction.

      . Originally at the first hearing on the motions, Sgt. Branham could not remember why Weinberg was suspected in the armed robberies and on cross-examination testified:
      “BY MR. CRULL:
      Q Why was Weinberg a suspect in the armed robberies?

      BY SGT. BRANHAM:
      A Because the (I don’t remember exactly what the information was. I don’t know if it had to do with the car that they were using, the car we stopped them in or it was information received).” (Emphasis added).
      Later, at the second hearing on the same motions, Sgt. Branham testified on cross-examination that he had refreshed his memory with the warrant and that the police believed that Weinberg was the driver in the armed robberies.

      . In brief defense relies on Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (where the accused confessed only after the police told him that they would bring his wife in for questioning) and Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (where the accused confessed only after the police told her that her state financial aid for her infant children would be cut off and the children taken from her if she did not cooperate). In both these cases the accused confessed after the police threatened them. In the present case, Weinberg volunteered his incul-patory facts before the police promised not to upset his father.

      . In general see, “Police statements that if suspect confesses his relatives will be released from custody or not be arrested, as rendering confession involuntary.” 80 A.L.R.2d 1428 (1961).

      . In People v. Matlock, the court found the admission voluntary and admissible under the facts of the case. There the defendant, while in custody accused of murder and robbery, disclosed to officers where stolen jewelry was hidden after he was told by an officer that if he would not tell where the jewelry was the officer would probably have to bring the rest of the family in until the matter was resolved.