author: TATE, Justice. MARCUS, Justice SANDERS, Chief Justice

text:
    STATE of Louisiana, Appellee, v. Michael Kent JEWELL, Appellant.
    No. 57735.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Dissenting Opinion Oct. 19, 1976.

      Michael S. Wolf, McCollister, Belcher, McCleary & Fazio, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard E. Chaffin, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The crucial issue of this appeal concerns the alleged validity of a warrantless “inventory search” of the automobile of the defendant, who was under custodial arrest. The alleged purpose of the inventory search was to safeguard the property of the accused for which the law enforcement agency might be accountable, since its officers were taking possession of the vehicle and removing it from the scene as a consequence of its driver’s arrest.

The defendant Jewell was convicted with possession of an illegal drug, phencyclidine (PCP), La.R.S. 40-968, and sentenced to supervised probation for three years. The sole issue raised by his appeal is that the PCP was unconstitutionally seized and that the trial court erred in denying the defendant’s motion to suppress the state’s use of this evidence.

Context Facts

The defendant Jewell was initially arrested for obstructing the highway:

While patrolling at 2:45 a. m., two police officers came upon the defendant’s automobile parked so as to protrude across the center of a narrow two-lane street in a quiet residential neighborhood. (As a result, another vehicle was required to drive onto the narrow shoulder to pass the parked car.) The motor was running, the headlights were off, and the defendant was sleeping or passed out in the driver’s seat, head slumped over.

The officers were able to arouse the defendant by shaking him, after knocking on the window had failed to do so. When the defendant alighted from the vehicle, he was given the Miranda warnings and informed that he was arrested and would be booked for obstructing the highway.

In a search of his person following this custodial arrest, an aluminum foil package was found in his shirt pocket, which contained a green substance suspected to be hashish, a form of marijuana. The defendant was informed that he was also under arrest for this offense. (The seizure of the hashish is not an issue upon this appeal.)

For purposes of the present appeal, we find no reason to reject the state’s argument that the police officers followed normal and customary practice in making a custodial arrest for obstruction of the highway under the circumstances here presented, including the possible or probable intoxication of the obstructing vehicle’s driver. The custodial arrest based on probable cause thus authorized the warrantless search of the arrestee himself, because of the exigent necessity of assuring the absence of weapons on his person., See State v. Breaux, 329 So.2d 696 (La.1976).

Further, due to the intoxicated condition of the arrested driver, the determination of the arresting police officers was not unreasonable to arrange to take custody of the vehicle for purposes of removing it from the scene. We are not here faced with a situation where, because of a traffic offense, the arresting officers plan to “impound” a vehicle, despite the fact that there is no necessity to do so, in order to search it. (The issue remains whether the vehicle was at the time of the search legally “impounded” for purposes of a permissible inventory.)

In accord with their decision to take custody of the vehicle, one of the officers proceeded on the spot to make what he denoted as an “inventory search” of the vehicle (of which more later, see II below). In the course of this search, he discovered a small excedrin (like aspirin) bottle in the open ashtray.

The bottle contained about seven pills or capsules, none of which are shown to be illegal, and a piece of plastic. The latter contained a minute amount of a white powdered substance which, upon laboratory analysis, proved to be PCP. (The defendant’s appeal is from his conviction of possession of the latter.)

We thus reach the issues posed to us by the present appeal: (I) Does a warrantless search of an automobile for “inventory” purposes violate our state constitution’s prohibition against unreasonable searches and seizures by agents of governmental power?; and (II) if not, is the present search nevertheless unjustified as beyond the contemplated scope of an inventory search?

I.

Our state constitution prohibits “unreasonable searches, seizures, and invasions of privacy” by our governmental agents. Louisiana Constitution of 1974, Article 1, Section 5. By reason of American constitutional provisions similar to Louisiana’s, a search warrant is required as a general rule, in order for a search to be constitutionally authorized.

To this general rule, however, historical and practical exceptions have developed justifying warrantless searches under limited, specified circumstances — essentially because of exigent necessity. These include, for instance, a limited search incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), a search of an automobile based upon particularized probable cause that it contains contraband or other contents that offend against the law, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), or the seizure of objects in plain view by one with a lawful right to be in a position to so observe them, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The cited decisions involve judicial interpretations of the federal constitution’s Fourth Amendment prohibition against unreasonable searches and seizures. In numerous decisions, this court has similarly interpreted our state constitution’s prohibition as not forbidding as unreasonable a warrantless search based upon valid exceptional reasons of the nature above stated.

We thus reach the issue reserved by us for future decision in State v. Jones, 315 So.2d 270 (La.1975): May warrantless police constitutionally enter an automobile they have taken in custody for reasonable cause, in order for them to inventory and remove its contents for the purpose of safeguarding them, pursuant to a search reasonably limited in scope solely to accomplish that purpose? If our state constitution forbids such warrantless inventory searches without the owner’s consent, then evidence thus unconstitutionally seized is not admissible in evidence in a criminal prosecution. Louisiana Constitution of 1974, Article 1, Section 5.

The United States Supreme Court explicitly held that standard police procedure in making reasonable “inventory searches” of the nature above set forth, does not constitute unreasonable searches which offends the Fourth Amendment to the United States’ Constitution; therefore, evidence obtained as a consequence of such search is admissible in evidence in criminal prosecutions. South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

In so concluding, the court pointed out that its previous decisions had “consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody.” - U.S -, 96 S.Ct. 3098. The decisions referred to were Cady v. Dombroski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), and Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

In Opperman and the three other cited decisions, in each case the vehicle search was made only after the car had been taken to the place of impoundment, the impounding of the car was examined and found to be for valid reason, the search was pursuant to standard procedures which had as sole purpose the safeguarding of the vehicle’s contents, and the search was found to be reasonably limited in scope to accomplish this purpose under the particular circumstances reflected.

We do not, by so noting, intimate that under the federal constitution a search of a vehicle by arresting officers in the field at the scene of the arrest may never constitute a valid inventory search. On the other hand, the care with which our high court examined these factors, before holding permissible the inventory searches there at issue, indicates to us that, in the absence of clear showing of a true inventory search (see Footnote 3 above), the Fourth Amendment does not permit a warrantless search of an automobile without probable cause or without the consent of its custodian. Fundamental constitutional guarantees against unreasonable searches cannot be evaded by labelling them “inventory” searches.

Preliminarily to upholding the validity of the inventory search in South Dakota v. Opperman, the Supreme Court stated, 96 S.Ct. 3096:

“ * * * The authority of the police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
“When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, 386 U.S., at 61-62, 87 S.Ct. 788. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Gabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971). * * * ”

Seizures of contraband during standard inventory procedures have almost uniformly been upheld by the state courts. Applying the Fourth Amendment standard of “reasonableness,” the state courts have overwhelmingly concluded that, even when characterized as a search, the intrusion is constitutionally permissible. The majority of the federal courts of appeal have likewise sustained true inventory procedures as reasonable police intrusions.

In the light of these historically accepted and practicably justifiable reasons, the United States Supreme Court in Opperman held that a true inventory search of a lawfully and actually impounded vehicle did not violate the Fourth Amendment prohibition against unreasonable searches, if conducted within the scope of standard police procedures which had as their purpose the inventorying and safeguarding of the vehicle’s contents.

We find this reasoning persuasive. We therefore, for similar reasons, hold that true inventory searches (see footnote 3) of motor vehicles impounded for reasonable cause do not offend the prohibition of Article 1, Section 5, of our state constitution against unreasonable governmental searches, seizures, or invasions of privacy.

However, in so holding, we adopt the general view of other courts which have reached the same conclusion, that, see Annotation, Inventory Search of Impounded Vehicles, .48 A.L.R.3d 537, 544 (1973):

“An essential requirement to a valid inventory search is that the police must have acted in good faith in conducting the inventory, and must not have used the inventory procedure as a subterfuge for a warrantless search. It has therefore been held that where the conduct of the police was inconsistent with its contention that the search was conducted for inventory purposes, the search was unlawful.”
“Another essential prerequisite to a valid inventory search is that the police must have taken lawful custody of the vehicle in the first instance. It has therefore been held that where the circumstances show that the police had no authority to impound the vehicle, or that police custodial care of the vehicle was not necessary, the inventory search was unlawful.”
“ * * * [Ljawful custody of an impounded vehicle does not of itself dispense with the constitutional requirement of reasonableness in regard to searches thereafter made of such vehicle.”

II.

In the present instance, the state attempts to justify the present as a valid inventory search of the nature that we have just held, see I above, is not prohibited by our state constitution.

Sometime after the defendant was arrested, the officers requested that the wrecker service pick up his automobile for storage. The record does not reflect whether the alleged inventory search occurred before or after this request.

Allegedly in accordance with departmental policy, one of the officers after the arrest proceeded to make what he termed an “inventory search” of the vehicle. He looked in the glove compartment, under the front seat, in the back seat, and in the trunk. He also stated that in such inventory searches he sometimes searched under the hood of the car, Tr. 28, although he did not do so in this instance.

In the open ashtray near the driver’s seat, he saw the small pill (excedrin) bottle and several tablets in it. He took them out and found the plastic containing the white powdery substance which turned out to be PCP, as he suspected.

As in State v. Jones, 315 So.2d 270 (La. 1975), the facts of the present case do not support the conclusion that the officers were conducting an inventory search to safeguard the vehicle’s contents, as contrasted with making a warrantless search for incriminating evidence, without probable cause to do so.

While the car was indeed in police custody at the time, the on-the-spot search by the arresting, officers does not resemble the formal inventory for storage purposes, after a vehicle has been actually impounded, of the federal vehicle-inventory decisions above cited.

No evidence in the record shows, for instance, that standard inventory forms were completed and kept for future reference (showing presence or absence of valuables), nor that a place of safekeeping for valuables so secured was maintained. The present search seems solely to have been for the purpose of obtaining incriminating contents, and all objects seized by the search were turned over to the laboratory for analysis and placed in evidence envelopes.

Unlike in the cited federal decisions, the ear was not formally impounded within the custody of an official storage agency at the time. The record does not even clearly reflect that the tow truck had been called before the search began. We are not prepared to say that a permissible inventory search may never take place in the field at the time of the arrest; however, an indicia of a true inventory search is that it is made at the place of custody for safekeeping of the vehicle, by inventorying and storing those contents which might be pilfered or damaged after the vehicle is stored in official custody.

Furthermore, as was the case in the cited federal decisions, the present vehicle’s custodian was present at the time of the so-called inventory search. If indeed the purpose of the search was to safeguard the custodian’s valuables instead of to search for evidence without probable cause to do so, it would seem more reasonable for the police officers to have made inquiry of the vehicle’s driver concerning the matter, instead of forcing him to stand silent to one side, head and arms across the hood (nose bleeding from being forced abruptly against the hood) or else, later, with hands handcuffed or stretched out across the top of the vehicle, while one of them proceeded with painstaking care to look for whatever he was looking for.

We are not prepared to say that a true inventory search may never be made in the presence of the vehicle’s custodian and without his consent. However, if the purpose of the search is truly only to inventory the contents of the vehicle and to safeguard them during official storage, an indicia that such is the real purpose of the search is to consult with the owner or custodian of the vehicle when he is present at the time of the search. The cited federal decisions concerned inventory searches where the owner of the vehicle was absent or unknown, or where it was not practicable to consult with him at the time of the routine storage inventory.

Additionally, the contraband was inside of an excedrin bottle, an unlikely place for anything of value which an owner could complain was lost or stolen. The opening of the bottle and inspecting its contents is inconsistent with the purpose and permissible scope of a true inventory search. The excedrin bottle was itself found inside an ashtray on the dash of the car, also, an unlikely place for an owner to keep anything of value.

In summary, the facts surrounding the search which produced the PCP support a conclusion that the police officers were searching for incriminating evidence, and that they were not collecting personal items found in the ear which might be stolen and thus needed to be inventoried either for the police department’s protection or to safeguard the defendant’s property.

We therefore hold that the search which produced the PCP admitted into evidence was not part of any inventory procedure authorized by our state constitution as reasonable under the circumstances.

The claim is made that the search was conducted pursuant to a departmental regulation. If so, a police inventory procedure of this nature—which permits arresting police officers unlimited discretion and without probable cause to make on-the-spot searches of vehicles at the scene of an arrest—cannot (however standard it may be with a local department) supersede the provisions of our state constitution restricting all agents of government from making unreasonable searches and seizures. Unconstitutional searches cannot be constitution-alized by standardizing them as a part of normal police practice.

Having concluded that the present was not such an inventory search as is authorized by our constitution, we need not consider alternative arguments of the defendant. They are that, even if the present were a lawful such search, its scope (at least, insofar as the removal of the contents of the ashtray and insofar as the inspection of the bottle’s contents) exceeded the purpose for which authorized; and that noting a small pill bottle in plain view in an ashtray, does not necessarily confer upon a governmental agent the right to seize it and open it, in absence of any indication that it contains contraband or evidence relevant to the search, see State v. Meichel, 290 So.2d 878 (La.1974).

III.

The state contends, alternatively, that the search of the ashtray of the automobile following the defendant’s arrest was a search incident to an arrest, such as is constitutionally authorized even although without a warrant.

The search was made by one officer, while the defendant was standing outside under guard of the other officer. At the time, the defendant’s hands were either handcuffed or else placed (at the direction of the arresting police) on top of the vehicle.

A search conducted incident to a lawful arrest is a well accepted exception to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). A search of the accused person and the area within his immediate control incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

As these cases hold, the warrant exception granting police officers the right to search a defendant and the area in his immediate control pursuant to a lawful arrest, is designed to allow the officers to remove any weapons that the defendant might use to resist arrest or effect his escape and to prevent the concealment and destruction of evidence. Those purposes control the permissible scope of the search, and the reasonableness of the search as measured by this permissible scope depends upon the facts of each case.

In the instant case, the vehicle search yielding the PCP was not even claimed by the searching officer to be confined to an examination for weapons that might be used to resist the arrest, or for evidence within the suspect’s immediate control that might be destroyed. The accused was in fact, under guard, well outside the vehicle, arrested for charges not connected with any shown probable cause to search his vehicle.

Under the circumstances shown, therefore, the state’s alternative argument is without merit. The present is not within the permissible scope of a search incident to a lawful arrest. It thus violates our state constitution’s prohibition against unreasonable searches and seizures.

Conclusion

The PCP seized from the ashtray of the defendant’s vehicle was, for the reasons stated, the product of an illegal search. It violated Louisiana Constitution of 1974, Article 1, Section 5, which prohibits unreasonable governmental searches and seizures in violation of individual rights. Consequently, the trial court committed error in denying the defendant’s motion to suppress such evidence and in admitting it into evidence.

Accordingly, the defendant’s conviction and sentence are set aside, and the case is remanded for a new trial in accordance with law.

REVERSED AND REMANDED FOR A NEW TRIAL.

SANDERS, C. J., dissents and will assign written reasons.

SUMMERS, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I respectfully dissent from the majority opinion for the following reasons.

On April 20, 1975, two Baton Rouge policemen stopped to investigate a car parked with motor running and partially obstructing a public street. They discovered defendant, Michael Kent Jewell, slumped over in the driver’s seat, apparently either sleeping or in some sort of stupor. The officers tried to rouse Jewell by knocking on the windows of the vehicle. When this failed, they entered the car and shook defendant until he regained consciousness. Upon alighting, Jewell was given his Miranda warnings, informed that he was under arrest for obstructing a public highway, and a search of his person was conducted as permitted by Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). During the course of the search, an aluminum foil packet containing hashish was recovered from defendant’s shirt pocket. The discovery of the controlled dangerous substance together with defendant’s obvious state of intoxication (Jewell told the officers that he had consumed an excessive amount of alcohol), established probable cause to search his automobile for other illegal drugs or intoxicants.

While I am in complete agreement with the majority’s adoption of the reasoning in South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) and determination that inventory searches do not violate our own constitution, I find it unnecessary to explore the question of whether the scope of the search in the instant case comported with the permissible limits of an inventory search, in view of my conclusion that probable cause existed for the search of defendant’s vehicle.

Warrantless searches of automobiles initially stopped on public highways have been upheld based on probable cause to search because of their inherent mobility and the diminished expectation of privacy. This is true whether the search is conducted on the road or later at the station house. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carrol v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In our own decisions, we have frequently indicated that a warrantless search of an automobile is justified when there is a combination of both probable cause and exigent circumstances. State v. Jones, 315 So.2d 270 (La.1975); State v. Navarro, 312 So.2d 848 (La.1975); State v. Hargiss, 288 So.2d 633 (La.1974); State v. Tant, 287 So.2d 458 (La.1973). Conceived correctly, however, the exigent circumstance is the inherent mobility of the car. In Chambers, the United States Supreme Court held that once an automobile is stopped based on probable cause, a warrant-less search may be conducted despite the fact that it might be practical to wait until a warrant is obtained and even though there is no danger that the vehicle will escape the jurisdiction. This holding was approved in Opperman.

In the instant case, the officers were justified in searching defendant’s automobile for illegal drugs or intoxicants which might have explained the unconscious condition in which he was found parked with the motor running. They acted properly in inspecting the contents of a small pill (excedrin) bottle situated in an open ashtray near the driver’s seat in the dashboard of defendant’s vehicle — an unusual location for medication. When a piece of plastic containing a small amount of a white powdered substance was discovered in the bottle which, in the officers’ experience, resembled PCP (phencyclidine), the seizure of the suspected contraband was legally permissible. Accordingly, since the evidence was seized pursuant to a reasonable automobile search based on probable cause, the trial judge was correct in overruling defendant’s motion to suppress the evidence.

SANDERS, Chief Justice

(dissenting).

At about 12:45 a. m., on April 20, 1975, city police officers Eugene Vincent and A1 Saizan observed an automobile, with its lights out but with its motor running, parked, at least partially, in Beechwood Drive in Baton Rouge. The defendant was asleep inside the parked vehicle. The officers tried to awaken him by rapping on the car windows but were unsuccessful. One of the officers then opened the front door on the passenger side, and the other officer opened the driver’s door. Together, the officers roused the defendant, and he stepped out of the automobile.

The officers testified that they immediately placed defendant under custodial arrest for obstructing the street, the usual practice for this offense. At that time, they advised him of his “Miranda” rights, which he stated he understood. Contrary to the police, Jewell stated that he was arrested later, though he conceded that he was not positive. The defendant admitted that he was groggy from the effects of alcohol. I accept the officers’ testimony as to the time of arrest.

After the arrest, though the record is silent as to the exact time, the officers requested that the wrecker service pick up the automobile for storage.

Officer Saizan searched the defendant and found a small, aluminum foil-wrapped packet in his shirt pocket. The officers opened the packet and observed what appeared to be hashish. Immediately, they advised him that he would also be booked for possession of the hashish, a controlled dangerous substance.

In accordance with departmental policy, Officer Vincent then began an inventory search of the automobile. In the open, dashboard ashtray, the officer observed an Excedrin bottle, containing several tablets, several capsules, and a white powder. During the inventory, he also observed a pipe, containing a vegetable residue. He took possession of these items and asked Jewell what they were. Jewell replied that he did not know. The officer then continued his inspection of the automobile. At that time, “official storage” arrived to store the vehicle.

Upon laboratory testing, the white powder in the Excedrin bottle proved to be phencycline, the vegetable material in the packet, hashish, and the pipe residue, marijuana. Defendant sought to suppress these narcotics.

The Fourth Amendment of the United States Constitution, as well as Article I, Section 5 of the Louisiana Constitution (1974), prohibits unreasonable searches and seizures. As a general rule, a search warrant is required. Among the well-established exceptions is a search incident to a lawful arrest. See Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

I have little difficulty in concluding that the search of defendant’s person and seizure of the hashish was constitutional. This search was incidental to and immediately followed defendant’s custodial arrest. The circumstance that the arrest was for a traffic offense, obstructing the public street, does not alter the result. In two recent decisions, the United States Supreme Court upheld a “full search of a person” incident to a custodial arrest for a traffic violation. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).

In sustaining the search in Gustafson v. Florida, supra, the United States Supreme Court held:

“[U]pon arresting petitioner for the offense of driving his automobile without a valid operator’s license, and taking him into custody, Smith was entitled to make a full search of petitioner’s person incident to that lawful arrest. Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that Smith did not indicate any subjective fear of the petitioner or that he did not himself suspect that the petitioner was armed. Having in the course of his lawful search come upon the box of cigarettes, Smith was entitled to inspect it; and when his inspection revealed the homemade cigarettes which he believed to contain an unlawful substance, he was entitled to seize them as ‘fruits, instru-mentalities, or contraband’ probative of criminal conduct.”

The automobile search, however, is the controversial issue in this Court.

Recently, in South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court dealt with evidence seized during a routine inventory search of an automobile lawfully impounded by police for violation of a parking ordinance. A police officer, having issued a second ticket for an overtime parking violation, routinely reported to police headquarters, and after the vehicle was inspected, the car was towed to the city impound lot. From outside the car at the impound lot, a .police officer observed a watch on the dashboard and other items of personal property located on the back seat and back floorboard. At the officer’s direction, the car door was then unlocked and, pursuant to standard police procedures, the officer inventoried the contents of the car, including the contents of the unlocked glove compartment. There he found marijuana contained in a plastic bag. The contraband, as well as the other items of personal property, were taken for safekeeping. After he came to claim his property, the owner of the car was arrested for possession of marijuana.

In ruling that the evidence seized was admissible, the United States Supreme Court stated:

“When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, 386 U.S. 58, at 61-62, 87 S.Ct. 788, 17 L.Ed.2d 730. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971). In addition; police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.
“On this record we conclude that in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not ‘unreasonable’ under the Fourth Amendment.”

Seizures of contraband during inventory procedures have almost uniformly been upheld by the state courts. Applying the Fourth Amendment standard of “reasonableness,” the state courts have overwhelmingly concluded that, even when characterized as a search, the intrusion is constitutionally permissible. The majority of the federal Courts of Appeal have likewise sustained inventory procedures as reasonable police intrusions.

The officers in the instant case had placed the defendant under arrest both for obstructing the street and possession of hashish, a controlled dangerous substance. Under standard practice, the officers arranged for the pickup and storage of the automobile. In conducting the standard inventory search of the vehicle, an officer found the Excedrin bottle and pipe.

I conclude, therefore, that the search of the automobile was a valid inventory search.

The majority finds that the inventory search was merely a pretense and that in truth the search was one for incriminating evidence. This finding represents a rejection of the uncontradicted testimony of two police officers. I strongly disagree with the finding.

Assuming, however, that the search of the automobile was in fact one for incriminating evidence, as the majority finds, the search was nonetheless valid since there was probable cause and exigent circumstances. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 419 (1970); State v. Jones, La., 315 So.2d 270 (1975); State v. Navarro, La., 312 So.2d 848 (1975).

After the officers legally secured the hashish from defendant’s person, there can be no doubt that there was probable cause to search the automobile for other narcotics and narcotic paraphernalia.

The circumstances justifying a warrant-less search include the mobility of the automobile and the fact that it was about to be removed by storage personnel over whom the officers did not exercise immediate control.

As demonstrated by Mr. Justice Marcus in his forceful dissent, an automobile search under these circumstances is reasonable and hence constitutional.

For the reasons assigned, I respectfully dissent.

      . The driver explained that he had parked on the deserted residential side-street because he was drowsy and felt it unsafe to drive because he was intoxicated as the result of attending a beer party earlier in the evening. As he explained, he had been weaving on a more traveled thoroughfare and therefore pulled off to sleep and sober up.

      . Under the circumstances, it was not practicable, for instance, to permit the arrested person to drive the vehicle to the police station for his booking, or to leave the automobile parked and locked, if the vehicle’s driver so wished.

      . As contrasted with a search of a motor vehicle based upon probable cause that its contents offend the law, an inventory search is conducted not to secure evidence but merely to inventory the vehicle’s contents in order to safeguard them, as an incident to the vehicle’s being taken into lawful custody (impounding) by the police for the purpose of storage or safekeeping until the owner is located or until, if he is arrested, he is released. The search should be by virtue of a standard procedure and reasonably limited in scope to accomplish only this sole purpose for which authorized. Annotation, Inventory Search of Impounded Vehicle, 48 A.L.R.3d 537 (1973) and decisions cited in the text of the opinion.

      . South Dakota v. Opperman, cited above, and the cases therein cited at 96 S.Ct. 3097: City of St. Paul v. Myles, 298 Minn. 298, 218 N.W.2d 697, 699 (1974); State v. Tully, 166 Conn. 126, 348 A.2d 603, 609 (1974); People v. Trusty, 183 Colo. 291, 516 P.2d 423, 425-426 (1973); People v. Sullivan, 29 N.Y.2d 69, 73, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971); Cabbler v. Superintendent, 528 F.2d 1142 (CA4 1975), petition for cert. pending; Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971); State v. Wal-

        len, 185 Neb. 44, 173 N.W.2d 372, cert. denied, 399 U.S. 912, 90 S.Ct. 2211, 26 L.Ed.2d 568 (1970); State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968); State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968); People v. Clark, 32 Ill.App.3d 898, 336 N.E.2d 892 (1975); State v. Achter, 512 S.W.2d 894 (Mo.App.1974); Bennett v. State, 507 P.2d 1252 (Okl.Cr. App.1973); People v. Willis, 46 Mich.App. 436, 208 N.W.2d 204 (1973); State v. All, 17 N.C. App. 284, 193 S.E.2d 770, cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973); Godbee v. State, 224 So.2d 441 (Fla.App.1969).

      . South Dakota v. Opperman, cited above and the cases therein cited at 96 S.Ct. 3098; Cabbler v. Superintendent, supra; Barker v. Johnson, 484 F.2d 941 (CA6 1973); United States v. Mitchell, 458 F.2d 960 (CA9 1972); United States v. Lipscomb, 435 F.2d 795 (CA5 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971); United States v. Pennington, 441 F.2d 249 (CA5 1971), cert. denied, 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94 (1971); United States v. Boyd, 436 F.2d 1203 (CA5 1971); Cotton v. United States, 371 F.2d 385 (CA9 1967). Accord, Lowe v. Hopper, 400 F.Supp. 970, 976-977 (S.D.Ga.1975); United States v. Spitalieri, 391 F.Supp. 167, 169-170 (N.D.Ohio1975); United States v. Smith, 340 F.Supp. 1023 (Conn.1972); Gravitt v. United States, 484 F.2d 375 (CA5 1973), cert. denied 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974).

      . The searching officer inferentially admitted this, when he testified that the ashtray was open (rather than closed, as the defendant testified, who was driving his sister’s car): “Yes, sir, I’m positive it was open because on an inventory search, I have no business going into an ashtray.” Tr. 24.

      . Apparently, this conformed to the established practice of protecting the automobile. Officer Vincent testified: “Any time that we make an arrest out of a vehicle, we have to store it. The vehicle is our responsibility.” [Trial Tr. 22].

      . Officer Vincent testified: “It’s a departmental policy that we do make an inventory search of the vehicle.” (Referring to a vehicle that is to be stored.) [Trial Tr. 22],
      Sergeant Saizan described the inventory search as follows:
      “Q. How thoroughly do you customarily search automobiles that are impounded for traffic offenses?
      “A. We list all items that are of value; check under the front seat; check the trunk; and whatever’s in view and list ’em.
      “Q. What are you basically looking for? Items of value that the department could be held accountable for?
      “A. Basically.
      “Q. I see. And then do you usually search the ashtrays?
      “A. If the ashtray is open and I see something in it, I’m going to find out what it is.” [Trial Tr. 27-28],

      . By stipulation, the testimony taken at the preliminary hearing, on the motion to suppress and at the trial is to be considered in determining the admissibility of the contraband. [Record 13].

      . South Dakota v. Opperman, supra, and the cases therein cited: City of St. Paul v. Myles, 298 Minn. 298, 218 N.W.2d 697, 699 (1974); State v. Tully, 166 Conn. 126, 348 A.2d 603, 609 (1974); People v. Trusty, 183 Colo. 291, 516 P.2d 423, 425-426 (1973); People v. Sullivan, 29 N.Y.2d 69, 73, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971); Cabbler v. Superintendent, 528 F.2d 1142 (C.A.4 1975), petition for cert. pending; Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971); State v. Wallen, 185 Neb. 44, 173 N.W.2d 372, cert. denied, 399 U.S. 912, 90 S.Ct. 2211, 26 L.Ed.2d 568 (1970); State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968); State v. Montague, 73 Wash.2d 381, 438 P.2d 571 (1968); People v. Clark, 32 Ill.App.3d 898, 336 N.E.2d 892 (1975); State v. Achter, 512 S.W.2d 894 (Mo.App.1974); Bennett v. State, 507 P.2d 1252 (Okl.Cr.App.1973); People v. Willis, 46 Mich.App. 436, 208 N.W.2d 204 (1973); State v. All, 17 N.C.App. 284, 193 S.E.2d 770, cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973); Godbee v. State, 224 So.2d 441 (Fla.App.1969).

      . South Dakota v. Opperman, supra, and the cases therein cited: Cabbler v. Superintendent, supra; Barker v. Johnson, 484 F.2d 941 (C.A.6 1973); United States v. Mitchell, 458 F.2d 960 (C.A.9 1972); United States v. Lipscomb, 435 F.2d 795 (C.A.5 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971); United States v. Pennington, 441 F.2d 249 (C.A.5 1971), cert. denied, 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94 (1971); United States v. Boyd, 436 F.2d 1203 (C.A.5 1971); Cotton v. United States, 371 F.2d 385 (C.A.9 1967). Accord, Lowe v. Hopper, 400 F.Supp. 970, 976-977 (S.D.Ga.1975); United States v. Spitalieri, 391 F.Supp. 167, 169-170 (N.D.Ohio 1975); United States v. Smith, 340 F.Supp. 1023 (Conn.1972); Gravitt v. United States, 484 F.2d 375 (C.A.5 1973), cert. denied 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974).


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Billy Ray OWENS and Bobby Ray Young.
    No. 57803.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      Robert E. Piper, Jr., Piper & Brown, Shreveport, for Bobby Ray Young.
    Samuel P. Love, Jr., Love, Rigby, Dehan & Love, Shreveport, for Billy Ray Owens.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

In the early morning of April 3, 1975 Emanuel Triggs, Ernest Jones and Cedric Sloan were together at a bar called the Afro Scene. Also present was another group of persons including Billy Ray Owens, Theardis Owens, Bobby Ray Young, Calvin Young, Charles J. Young and Melvin DuBois. When Triggs, Sloan and Jones left the Afro Scene shots were fired at them by someone in the other group. Triggs, Sloan and Jones proceeded to the Harlem House Restaurant in Shreveport. They were followed there by the second group of youths. At approximately 2:30 a. m. Billy Ray Owens went into the Harlem House and began speaking to Triggs. At this point, someone in the doorway of the restaurant yelled “Let’s burn this S.O.B.” and Bobby Ray Young began firing into the restaurant. Cedric Sloan and Ernest Jones were hit by bullets.

Billy Ray Owens, Theardis Owens, Melvin DuBois, Charles Young and Calvin Young were all apprehended that same night in the 1962 Chevrolet they were seen leaving the restaurant in. Two days later Bobby Ray Young was apprehended. On April 8, 1975 Bobby Ray Young, Billy Ray Owens, Theardis Owens, Calvin Young and Charles J. Young were all charged jointly by bill of information with the attempted second degree murder of Cedric Sloan. Subsequently, the trial of Bobby Ray Young and Billy Ray Owens was severed from that of the other defendants. By a unanimous verdict a jury found these two defendants guilty of attempted second degree murder. Subsequently, each defendant was sentenced to twelve years at hard labor. Prom this conviction and sentence these defendants appeal.

Defendant Owens

Assignment of Error No. 5 was specifically waived.

Assignment of Error No. 1

Defendant contends that the trial court erred in allowing photographs of the scene of the crime to be introduced into evidence because the State had failed to lay a proper foundation for the introduction of the photos. The defendant alleges that the lack of proper foundation is demonstrated by the fact that the photographer was not called as a witness, the date on which the pictures were taken was not established and no chain of possession of the photos was established. While the photographer did not testify, the owner of the Harlem House Restaurant, who was at the scene of the crime soon after the incident occurred and was present during the taking of the pictures, testified that the pictures correctly represent the appearance of the restaurant at that time. A sufficient foundation was laid for the introduction of the pictures. State v. Forbes, 310 So.2d 569 (La.1975); State v. Franks, 284 So.2d 584 (La.1973). This assignment lacks merit.

Assignment of Error No. 2

In this assignment the defendant objected to the introduction into evidence of the transcribed testimony of an absentee, Emanuel Triggs, which testimony had been given at the preliminary hearing in this case. Mr. Triggs was present in the Harlem House Restaurant at the time of the shooting and was allegedly the individual whom the defendants originally intended to shoot. After the preliminary hearing, Triggs had been placed in the Caddo Correctional Institute where he was personally served with a subpoena for this trial, but on September 1,1975, seven days prior to trial, he escaped and had not been apprehended when trial began. Before admitting the transcribed testimony, the trial judge conducted a lengthy examination of local police officers to determine whether they had diligently attempted to locate the absent witness in order to have him personally appear at trial. The testimony of the officers indicates: that a thorough search was undertaken; a warrant was issued and copies of his picture were given to deputies who searched for the witness; the help of the Dallas, Texas police department was enlisted when information indicated that he might be in their jurisdiction. In addition, on September 8, the trial judge issued a bench warrant for Triggs’-arrest. The trial judge determined that the State had exercised due diligence in attempting to locate Mr. Triggs.

The pertinent portion of C.Cr.P. 295 provides:

“The transcript of the testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceeding in the case, on behalf of either party, if the court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found, and that the absence of the witness was not procured by the party offering the testimony.” (Emphasis added).

Clearly here the witness could not be located and the trial judge found, and the record demonstrates, that the absence of the witness was not procured by the State. In addition, both defendants were represented by counsel at the preliminary hearing. The trial judge was correct in ruling that the witness was unavailable to testify and in admitting the transcribed testimony. The defendant’s right to confront the witness was not abridged. State v. Thomas, 290 So.2d 690 (La.1974). This assignment lacks merit.

Assignment of Error No. 3

The defendant contends that the trial court erred in failing to grant a mistrial after the prosecutor continually asked repetitious questions and led his witnesses. Defendant alleges that such conduct was highly prejudicial to him. The defendant does not specify what questions he found objectionable nor in what ways he was prejudiced by the prosecutor’s conduct. Since no prejudice is demonstrated or evident in the record, we cannot say that the trial judge erred in refusing to grant a mistrial. C.Cr.P. 921.

Assignments of Error Nos. 4 and 7

In these assignments the defendant objects to the introduction into evidence of a pistol on the grounds that no proper foundation was laid, the pistol was not identified as being located at the scene of the crime, and there was no demonstration of ownership of the pistol by the defendant. This court has often held that the lack of identification, chain of custody and connexity of physical evidence is a matter for determination by the jury, so long as the evidence is shown to be reasonably connected with the defendant or the crime and has some relevancy warranting its introduction. State v. Batiste, 318 So.2d 27 (La.1975); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Here, Deputy Johnnie Battle, the officer who arrested this defendant, testified that he found the pistol within twenty-five feet of where the defendant had been arrested and he identified the gun in court as the one he had found on the night of the arrest. A sufficient identification had been made and any lack of connection between the defendant and the gun was a matter for the jury to consider in giving weight to the evidence. These assignments lack merit.

Assignment of Error No. 6

The defendant contends that the trial court erred in refusing to grant a mistrial when evidence was elicited in reference to the shooting of one Ernest Jones. The witness, Ernest Jones, was in the Harlem House Restaurant at the time the shooting occurred. It was the State’s theory of the case that the defendants in fact intended to shoot Emanuel Triggs, but mistakenly hit Jones and the victim Sloan. The shooting of Sloan was the offense for which the defendants were being tried in this case. The shooting of Jones occurred at precisely the same time and place as the crime at issue here. R.S. 15:447 and 15:448 provide:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

The shooting of Jones was clearly a part of the res gestae and therefore admissible. State v. Kaufman, 331 So.2d 16 (La.1976); State v. Leichman, 286 So.2d 649, cert. den. 420 U.S. 907, 95 S.Ct. 824, 42 L.Ed.2d 836 (1973). In addition, in order to avoid any undue prejudice to the defendants, the trial judge instructed the jury both during the witness’ testimony and again in his charge to the jury that the defendants were not on trial for the shooting of the witness, Jones, and could not be convicted for that shooting. There was no error in admitting this testimony.

Assignment of Error No. 8

In this assignment the defendant contends that the trial court erred in allowing the witness, Raymond Cooper, to be accepted as an expert witness in the field of firearms identification. Mr. Cooper testified that he was a criminalist at the Northwest Crime Lab and that he had worked there for three years specializing in firearms identification. He was awarded two degrees from Louisiana Tech — a Bachelor of Science Degree in Agronomy and a Master of Science Degree in Microbiology. He holds no degree in criminology nor had he taken any courses in that area. He had acquired his expertise in firearms identification through his practical experience working for the lab and as an apprentice to Mr. Roy Herd, the director of the crime lab. Mr. Cooper had testified as an expert in firearms identification from eight to ten times in the courts of Caddo, Winn and Grant Parishes. The trial court has wide discretion in determining the competence of an expert witness. State v. Grove, 306 So.2d 308 (La.1975); State v. Thorson, 302 So.2d 578 (La.1974), and the discretion of the trial court will not be disturbed in the absence of abuse. State v. Richmond, 278 So.2d 17 (La.1973). In addition, this court has held that the lack of courses in criminology is not sufficient to disqualify a witness as an expert in the field. State v. Ledet, 298 So.2d 761 (La.1974). There was no abuse of discretion here. This assignment lacks merit.

Assignments of Error Nos. 9, 10 and 11

Theardis Owens, the brother of the defendant, was called as a witness for the defense. Theardis Owens had originally been charged with attempted second degree murder, along with his brother, by bill of information. The trial of Theardis Owens was severed from the instant case before trial. Theardis Owens testified that neither he nor his brother was in the Harlem House Restaurant at the time of the shooting. On cross-examination the prosecutor asked the witness the following question:

“Now, sir, if your brother is found not guilty do you expect to be prosecuted for this offense?”

The witness answered that he did not expect to be prosecuted if his brother was acquitted. Defense counsel had objected to the question and moved for a mistrial. 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.”

By eliciting the testimony that the witness felt that he would not be prosecuted if his brother was found not guilty, the State was attempting to demonstrate that the witness had an interest in the case or was biased. The question was proper for that purpose. State v. Bowen, 292 So.2d 197 (La.1974); State v. Chambers, 263 La. 1080, 270 So.2d 514 (1972). These assignments lack merit.

Assignment of Error No. 12

In this assignment of error the defendant objects to the refusal of the trial judge to grant a mistrial based on his contention that certain evidence was not given to the defendant upon request of counsel. Owens’ co-defendant, Bobby Ray Young, had called Melvin DuBois as a witness. On direct examination it was revealed that Mr. DuBois had given a statement to the prosecutor concerning the night of the shooting. DuBois had arrived at the Harlem House Restaurant with the defendant Owens. In his statement DuBois said that he did go to the Harlem House on the night in question but said that he did not know anything about a shooting there nor did he hear any shots fired. Defendant Owens contends that this statement should have been given to him by the prosecutor since it was evidence favorable to the defendant and a better defense could have been prepared had he known of the statement.

Defendant contends that he had requested that any such exculpatory evidence be revealed to him. In fact the minutes of the trial reveal that counsel for defendant Young made such a request but the minutes are silent as to whether defendant Owens joined in the request. No written request by defendant Owens appears. However, even in the absence of any motion being filed by Owens pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the failure on the part of a prosecutor to turn over exculpatory statements may be grounds for a mistrial. In United States v. Agurs, - U.S. -, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court formulated the tests to be applied in such circumstances:

“[I]f the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made.”

The court indicated that the crucial consideration is the nature of the evidence and not the culpability of the prosecutor. Evidence not so clearly supportive of innocence must be examined to determine if that omitted evidence creates a reasonable doubt that would not otherwise exist. If so, then error has been committed in failing to disclose such evidence even in the absence of a request. Finally, if there is only the “mere possibility that an item of undisclosed information . . . might have affected the outcome of the trial,” then reversal is not required for nondisclosure. United States v. Agurs, supra.

Here, the evidence was not so clearly supportive of innocence as to require disclosure. Nor do we believe that the failure to disclose this statement could create any reasonable doubt that did not already exist. This is particularly true in light of the fact that Owens himself took the stand and testified that he did hear gunshots at the Harlem House on the night of the shooting. Therefore, according to the standards established in United States v. Agurs, supra, the failure to disclose the existence of this statement does not constitute reversible error.

Defendant Young

Defendant Young has specifically waived Assignments of Error Nos. 6, 7 and 8

Assignment of Error No. 1

In this assignment the defendant contends that the trial court erred in failing to grant a mistrial due to the prosecutor’s introduction of evidence of extraneous offenses. During the trial, testimony was elicited concerning an aggravated assault on Amos Harris, an attempted murder of Ernest Jones and the fathering of two illegitimate children of Thelma Smith.

Amos Harris was in the Harlem House Restaurant on the night of the shooting and had walked outside to make a phone call while defendant Young was still outside of the restaurant. As Harris went to make the call, Young put a gun into his stomach. After following Harris across the street, Young returned to the restaurant door and began shooting. Defendant Young began his firing into the restaurant immediately after having committed the aggravated assault on Harris. It seems clear that this assault on Harris was a part of the res gestae and as such was admissible. R.S. 15:447, 448. Similarly, the testimony concerning the shooting of Ernest Jones was admissible as that shooting was a part of the res gestae. Jones was shot at the same time as the victim Sloan in the Harlem House. See Owens Assignment of Error No. 6.

Thelma Smith was called as a witness for defendant Young. On cross-examination she was asked if she had two children by Young. The prosecutor was attempting to demonstrate bias or interest on the part of the witness which is permissible under R.S. 15:492. In addition, it must be noted that R.S. 14:79.2, making it a criminal act for both the father and the mother to conceive and give birth to two or more illegitimate children, was repealed by Act No. 638, § 3 of the 1975 Regular Session of the Legislature. The effective date of that act was September 12, 1975 and the testimony was elicited on September 16, 1975. The fathering of two illegitimate children was not a criminal act when the testimony was given. This assignment lacks merit.

Assignment of Error No. 2

In this assignment the defendant contends that the trial court erred in failing to grant a mistrial based on the prosecutor’s alleged improper examination of witnesses, repetitious questions, actions and sarcastic remarks. Defendant indicates no way in which he was prejudiced by any of these actions or remarks. Since no prejudice was demonstrated and the record does not indicate that the defendant was denied a fair trial, the refusal to grant a mistrial was proper. C.Cr.P. 775, 921. See Owens Assignment of Error No. 3. This assignment lacks merit.

Assignment of Error No. 3

The defendant contends that the trial court erred in failing to grant a mistrial based on the State’s failure to disclose evidence in its possession favorable to the defendant. (See Owens Assignment of Error No. 12). Defendant Young did file a general Brady disclosure request. The allegedly exculpatory material in the State’s possession included the following: (1) knowledge that the .22 pistol used by the defendant during the shooting had not been test fired, nor were shells found at the scene of the crime, nor was the gun connected to the defendant by any evidence; (2) the fact that two of the State’s witnesses had criminal records; (3) the existence of the statement given by Mr. DuBois to the prosecutor.

Information on the test firing of the gun and the absence of shells is simply not “exculpatory evidence” required to be disclosed under Brady v. Maryland, supra. The question of linking the defendant to the gun is a matter of weight to be given the evidence and is unrelated to this disclosure issue. (See Owens Assignments of Error Nos. 4 and 7).

The criminal records that the defendant appears to refer to are those of Emanuel Triggs and Lucius Boyd. Triggs had testified at the preliminary hearing at which time he admitted having been convicted of burglary and receiving stolen goods. The defendant did not file his Brady motion until after the preliminary hearing. Therefore, defense counsel already •knew of the witness’ criminal record. The record of Mr. Boyd consisted of pleading guilty to a speeding violation and a gambling violation. While this evidence may properly have been used to impeach this witness’ credibility, it certainly was not clearly supportive of a claim of innocence nor would it create a reasonable doubt that does not otherwise exist. At most, this information may have helped the defense. United States v. Agurs, supra. Clearly, it was not of “sufficient significance to result in the denial of the defendant’s right to a fair trial.” United States v. Agurs, supra.

Mr. DuBois’ statement was to the effect that he had no knowledge of any crime nor of any shots being fired. (See Owens Assignment of Error No. 3). However, contrary to defendant Young’s assertion, that statement did not contain any language indicating that defendant Young was not present at the time of the commission of the offense. In addition, the record reveals that counsel for Mr. Young did have Du-Bois’ statement in his possession at the time of trial, because he handed the statement to DuBois on the witness stand for the witness to read. This assignment lacks merit.

Assignments of Error Nos. 4 and 5

In these assignments the defendant contends that the trial court erred in permitting the introduction into evidence of the pistol allegedly used by the defendant in the shooting on the ground that the gun was secured as a result of an unlawful search and seizure. In addition, he objects that no sufficient chain of custody of the pistol was established and that the gun was not demonstrated to be connected with the defendant.

Lt. Lee Johnson of the Caddo Parish Sheriff’s Office testified that on the night of April 6,1975, while patrolling in an unmarked car, he observed a 1962 white Chevrolet at David Raines Road and Victor Street with a number of people standing outside the car. After passing the vehicle, the sheriff’s office radioed a patrol unit to go to that intersection as some shooting was going on there. Lt. Johnson was subsequently informed that one of the men in the white Chevrolet, about which the shooting had just been reported, was Bobby Ray Young. (Two warrants for the arrest of defendant Young were outstanding related to the shooting at the Harlem House Restaurant). Lt. Johnson arrived at the intersection within approximately three minutes, discovered two deputies already on the scene, and all four occupants of the Chevrolet out of the car. All four had been placed under arrest by the deputies and two of the occupants were handcuffed. Lt. Johnson then conducted a search of the vehicle which lasted approximately three and one-half minutes and discovered two pistols underneath the back seat of the vehicle. The defendant did not demonstrate, nor does the record reveal, that Lt. Johnson lacked probable cause to search the vehicle in connection with the reported shooting at the intersection. A shooting had been reported at that location; a warrant for the arrest of one occupant for a shooting was outstanding. State v. Thomas, 310 So.2d 517 (La.1975). Finally, Lt. Johnson identified the pistol in court as the one that he found in the white Chevrolet. The connection of the gun with the defendant is a matter to be left to the jury. State v. Thomas, 325 So.2d 593 (La.1976). The objection to the introduction of the pistol into evidence was properly overruled by the trial judge. These assignments are without merit.

Assignment of Error No. 9

This assignment is identical to defendant Owens’ Assignment of Error No. 2 and is without merit.

Assignment of Error No. 10

Defendant contends that the trial court erred in failing to direct a verdict of acquittal at the close of the State’s case. Defendant argues that the State had failed to demonstrate that the defendant had any specific intent to kill either Mr. Triggs or Mr. Sloan. R.S. 14:30.1 provides that specific intent to kill or inflict great bodily harm is necessary for a second degree murder conviction. However, intent need not be proved as a fact but may be inferred from the circumstances of the transaction. C.Cr.P. 445. In addition, a directed verdict is not proper unless there is an absence of evidence of guilt or of an essential element of the offense charged. State v. Jones, 315 So.2d 650 (La.1975); State v. Hamilton, 312 So.2d 656 (La.1975). The victim Sloan testified that he saw Young enter, tell Triggs “I come to get you,” and fire a gun at the instant Sloan was shot. There was adequate evidence of intent. The trial judge properly denied the motion for a directed verdict.

Assignment of Error No. 11

In this assignment the defendant contends that the trial court erred in failing to grant a mistrial on the basis of remarks made by the prosecutor in his closing argument. The defendant alleges that the prosecutor appealed to the passions of the jury, made prejudicial characterizations, engaged in personifications and vouched for the credibility of the State’s witnesses.

A review of the record reveals that the prosecutor’s argument was within the bounds prescribed by C.Cr.P. 774. In addition, this court has often held that before a verdict will be overturned on the basis of improper argument, “this Court must be thoroughly convinced that the jury was influenced by the remarks, and that they contributed to the verdict.” State v. Chaffin, 324 So.2d 369, 373 (La.1975); State v. Dennis, 250 La. 125, 194 So.2d 720 (1967). As the defendant has demonstrated no prejudice as a result of these statements, we will not disturb the trial court’s ruling. State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Dennis, supra.

Assignment of Error No. 12

In this last assignment of error the defendant contends that for all of the reasons stated in his assignments of error he was denied a fair trial and was therefore entitled to a new trial. As no error of law is evident in the trial court’s rulings and no injustice has been done the defendant, this court will not reverse the trial court’s refusal to grant a new trial. C.Cr.P. 851, 858.

Accordingly, the convictions and sentences of defendants are affirmed.

SUMMERS, J., concurs in the result.

      . According to Mr. Cooper’s testimony, Mr. Herd holds. Bachelor and Master of Science Degrees in chemistry and prior to opening this crime lab he worked for the State Police Crime Laboratory at Baton Rouge for eighteen years.

      . The legislature amended Article 778 of the Code of Criminal Procedure removing from the trial judge the authority to direct a verdict of acquittal in jury cases. La. Acts 1975, No. 527, § 1. However, the effective date of the amendment was September 12, 1975 and trial was begun in this case on September 8, 1975. Therefore this assignment of error will be treated on its merits.

      . If the defendant is engaged in the perpetration of certain enumerated offenses, no specific intent need be established. R.S. 14:30.1. However, there is no allegation that the defendant was engaged in the perpetration of any of these offenses.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Ernest SHARP.
    No. 57804.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      George Griff ing, Griff ing & Scott, Jones-ville, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Della Hayes Boyd, Barbara Rutledge, Asst. Attys. Gen., Speedy 0. Long, Dist. Atty., Jena, R. Neal Wilkinson, Staff Atty., Baton Rouge, for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Ernest Sharp was indicted by a grand jury in LaSalle Parish for committing the crime of second degree murder, in violation of La.R.S. 14:30.1. He shot his sister’s husband with a British 303 rifle after going to the victim’s house and calling him outside. After trial, a jury found defendant guilty as charged, and he was sentenced to life imprisonment at hard labor. On appeal defendant relies upon eight assignments of error.

ASSIGNMENTS OF ERROR NOS. 1, 2 and 3.

Defendant complains that the trial court erred in admitting into evidence, over his objection, several oral inculpatory statements purportedly made by him (assignment of error number one). Additionally, he urges that the trial court erred in not granting a mistrial based upon the statements’ alleged improper introduction (assignment of error number two), and in not granting his alternate oral motion for a continuance after the court ruled this statement admissible at the outset of trial (assignment of error number three). These assignments are closely related; therefore, we shall discuss them together.

The issue prompting these assignments arose in this manner. On October 30, 1975, the defendant filed a motion for a bill of particulars asking, among other things, whether the state held, possessed, or intended to use at the trial, any oral or written statements, admissions or confessions made by the defendant. In its answer, the state asserted that it was not required to respond to defendant’s inquiries. However, a contradictory hearing was held on the motion and the state thereafter prepared an amended answer to defendant’s bill of particulars. In its response to the question concerning oral statements, admissions, or confessions, the state, after changing its second answer, responded that it held “an oral admission” made by the defendant and that it intended to use that admission at the trial. The oral admission presumably alluded to was a statement defendant made, immediately following the shooting, to the victim’s wife (defendant’s sister).

Then, immediately prior to opening statement, the state, pursuant to Louisiana Code of Criminal Procedure article 768, presented to the defense a notice of intent to use inculpatory statements made by the defendant, listing the names of six witnesses who would testify concerning inculpatory statements made by the defendant at the scene of the crime upon being arrested. They also listed the names of five additional witnesses who would testify that the defendant prior to the offense had threatened the life of the victim.

When defendant objected to the use of the eleven witnesses, he contended that to his detriment he had been misled by the state to assume that only one inculpatory statement was held by the state. He relies upon State v. Boothe, 310 So.2d 826 (La.1975), which he characterizes as nearly identical to the instant case. When the court overruled his objection to the use of the witnesses for the stated purpose he moved for a mistrial. When his mistrial was denied he sought a continuance, which was also denied.

Although the trial judge overruled the objection, he did, following a stipulation, limit the state to using three of the six witnesses who were to relate oral inculpato-ry statements made at the scene of the crime, namely, the three witnesses who had apparently testified to the same effect at a previously conducted preliminary hearing.

First of all we should note the distinction between the three witnesses who were later to testify concerning oral and inculpatory statements made at the scene of and following the crime, and the five witnesses who were being produced to relate that defendant had threatened to kill the victim prior to the incident in question.

With respect to the latter, these statements are not inculpatory within the meaning of Code of Criminal Procedure article 768. We have held that inculpatory statements within the contemplation of this provision involve “out of court admissions of incriminating facts made by the defendant after the crime has been committed.” State v. Wells, 306 So.2d 695 (La.1975); State v. McKinnon, 317 So.2d 184 (La.1975). Inasmuch as these were not inculpatory statements, it was not inappropriate for the state to neglect to allude to them in the answer to the motion for bill of particulars. Furthermore, it was not even necessary for the state to apprise the defense prior to trial as per C.Cr.P. art. 768 of its intent to use these five statements although out of an abundance of caution, apparently the state did so advise defendant.

With respect to the three witnesses and the oral inculpatory statements which they were to relate, the content of those oral inculpatory statements are not subject to pre-trial discovery by motion for bill of particulars. State v. Nix, Mule and Fulford, 327 So.2d 301 (La.1975); State v. Berry, 324 So.2d 822 (La.1975); State v. Major, 318 So.2d 19 (La.1975). Nonetheless, if the defendant is misled by an answer to a motion for bill of particulars relating that there are no confessions or inculpatory statements of any character, there is a basic unfairness which this Court found in State v. Boothe, supra, constituted reversible error.

In the case at hand the state’s answer to the bill of particulars was seemingly inaccurate and misleading in that they had related that they had only one such oral inculpatory statement. On the other hand, the case is distinguishable from Boothe because in this case, the defendant was not misled, for he was acutely aware from the preliminary hearing that the state had three witnesses who were going to testify that the defendant made the post-crime oral inculpatory statements. In fact, at the preliminary hearing defendant and his counsel heard that very testimony and were afforded the opportunity to cross-examine the three witnesses. There can be no doubt that defendant in fact had actual notice that the state held more than one oral inculpatory statement.

The “misrepresentation” on the part of the state in this case, unlike that which took place in State v. Boothe, was not and could not have had prejudicial effect to the defendant who was acutely aware of the existence of those statements. We therefore find non-meritorious the defense contentions in assignments one, two and three.

Accordingly assignments one, two and three lack merit.

ASSIGNMENT OF ERROR NO. 4.

Defendant complains that the trial court erred in denying his motion for a directed verdict at the conclusion of the state’s case.

As it formerly read, La.Code of Criminal Procedure article 778 provided:

“In a jury trial the court may direct a verdict of not guilty of one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
“If the court denies a defendant’s motion for a directed verdict or judgment of acquittal at the close of the state’s case, the defendant may offer his evidence in defense.”

However, the Louisiana legislature by Act No. 527 § 1 of 1975, amended this provision deleting the portion which allowed the trial judge to direct a verdict in jury cases. La.C.Cr.P. art. 778 now provides:

“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
“If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense. Amended by Acts 1975, No. 527, § 1.”

The offense for which defendant was tried occurred on September 20, 1975, after the effective date of this amendment. The indictment was handed down in October and defendant was tried by a jury in January of 1976. We thus find the assignment of error without merit.

ASSIGNMENT OF ERROR NO. 8.

Defendant assigns as error the trial court’s denial of his motion for a new trial upon the ground that the evidence indicated he acted in self defense, and that the state failed to prove beyond a reasonable doubt that the shooting was not done in self defense.

Louisiana Code of Criminal Procedure article 851 provides in relevant part:

“The court, on motion of the defendant, shall grant a new trial whenever: (1) The verdict is contrary to the law and the evidence.”

In State v. Plummer, 281 So.2d 716 (La.1973) we said:

“LSA-C.Cr.P. Art. 851(1) permits the trial judge to grant the defendant a new trial if the verdict rendered by the jury is contrary to the law and the evidence. This power is exclusively that of the trial judge when inquiry is directed to the alleged insufficiency of the evidence (as contrasted with no evidence at all). This Court is prohibited from reviewing questions of fact in criminal cases. LSA-Const. Art. VII, Sec. 10; LSA-C.Cr.P. Art. 858. In accordance with these provisions, we have uniformly held that a bill of exceptions reserved to the refusal of the trial judge to grant a motion for a new trial based on Article 851(1), relative to sufficiency of the evidence presents nothing for our review. State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Williams, 262 La. 160, 262 So.2d 507 (1972); State v. Landry, 262 La. 32, 262 So.2d 360 (1972); State v. Singleton, 252 La. 976, 215 So.2d 512 (1968); State v. Stokes, 250 La. 277, 195 So.2d 267 (1967).” See also State v. Jack, 332 So.2d 464 (La.1976); State v. Vince, 305 So.2d 916 (La.1974).

Thus, we are limited in reviewing the record in this case to determine whether the state presented any evidence at the trial which would indicate that defendant did not kill the victim in self-defense. The state, of course, does bear the burden of proof beyond a reasonable doubt that a homicide was feloniously committed and was not perpetrated in self-defense. State v. Patterson, 295 So.2d 792 (La.1974).

Defendant asserts that the state offered “no evidence” at all that the killing here was not justifiable as self-defense. Additionally, he argues that the officers who investigated the crime failed to “look for evidence relative to self defense.”

We have reviewed the testimony of the state’s witnesses. Rather than establishing that the state failed to present any evidence on this essential element of the crime, the transcript is replete with testimony negating self-defense.

Prior to the motion for a directed verdict, the state had introduced evidence that defendant had threatened to kill the deceased on two prior occasions. No blood was found on the buck knife with which the deceased was allegedly attacking the defendant. Defendant rarely visited the deceased, yet on the night in question, defendant called the deceased out of his house and only a short time later the fatal shot was fired. Near the decedent’s right hand there was found, not a knife, but a beer bottle. An expert in criminology testified that no powder residue was found on the decedent’s shirt, negating defendant’s testimony that he fired from twenty seven (27") inches with defendant advancing on him; and if only twenty seven inches had separated the principals at the time the shot was fired, as defendant testified, there would likely have, been a considerable amount of powder on the shirt. Also, the murder weapon left residue up to four (4') feet, which would indicate that, if the rifle was fired from the defendant’s shoulder, defendant would have been standing at least seven and one-half {Tti) feet from the deceased. There was also testimony that almost immediately before the fatal shot was fired, the deceased was seen with a beer bottle in his right hand. The state further introduced the testimony of a witness who had ridden in the defendant’s car the night before the slaying, who noticed only an exhaust leak. At this time there was no problem with the alternator repair of which defendant related as his reason for going to the victim’s residence.

In view of the foregoing, defendant’s assignment of error number eight lacks merit.

ASSIGNMENT OF ERROR NO. 7.

Defendant urges that the trial court erred in not granting him a new trial upon his showing that witnesses under a sequestration order had mingled with spectators and discussed the case with spectators and among themselves during the trial.

La.Code of Criminal Procedure article 851 provides inter alia:

“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
“The court, on motion of the defendant, shall grant a new trial whenever: * * * * * *
“(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment;
* * sfc it

Defendant relies on testimony adduced at the hearing on the motion for new trial to establish the existence of prejudicial error said to have been created by violation of the trial court’s sequestration order.

Three witnesses were presented at the hearing on the motion for new trial who testified essentially that at the trial various witnesses who testified, and were to testify, engaged in conversation relative to the case in the hallway outside the courtroom during the course of the trial. The three witnesses distinctly did not testify that they had heard any conversation indicating any witnesses were intending to change their testimony or hoping to effect the change of testimony on the part of anyone else.

It was nonetheless established that a number of the witnesses did not comply with the sequestration order by which they were instructed not to discuss the case with anyone but the trial attorneys. The court overruled the motion for new trial and it is this ruling of the trial court which is urged upon us as having been erroneous.

The state properly observes that a motion for new trial must rest upon a finding of prejudice to the accused (see C.Cr.P. art. 851) and they contend that noncompliance in this instance was not shown to have resulted in such prejudice. Had violation of the sequestration order by a prospective witness been brought to the court’s attention prior to presentation of his testimony, the trial judge would have been permitted in his discretion to allow such witness to testify notwithstanding noncompliance. State v. Lewis, 288 So.2d 324 (La.1974); State v. Browning, 290 So.2d 322 (La.1974).

In the instant case noncompliance with the sequestration order was shown post-trial by evidence presented in connection with the motion for a new trial. The trial judge has no less discretion in this situation. He did not abuse that discretion in finding as he did from the facts presented that defendant had not been prejudiced.

ASSIGNMENT OF ERROR NO. 10.

Defendant urges that the trial court erred in failing to grant his motion for new trial insofar as it was based on the trial court’s failure to instruct the accused that he could waive his right, to jury trial.

Article I, § 17 of the Louisiana Constitution of 1974 provides that “except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury.”

Article 780 of the Code of Criminal Procedure, as amended effective January 1, 1975, contains the same provision that defendant may knowingly and intelligently waive his right to a trial by jury in non-capital cases. That article goes on to state, “at the time of arraignment, the defendant in such eases shall be informed by the court of his right of waiver and election.”

In the case at bar it appears that this defendant at his arraignment (which he attended along with his court appointed counsel) was not specifically advised by the trial judge of his right of waiver and election. We are nonetheless constrained to conclude that defendant has not been sufficiently prejudiced thereby, in this case, to warrant reversal of his conviction.

First of all we review the merit of the contention, notwithstanding that he filed the inappropriate motion for a new trial rather than the motion in arrest of judgment, to raise the issue.

While Article 780 does state that the defendant shall be informed by the court of his right to waiver and election, the constitutional provision, Article I, § 17, merely relates that defendant may knowingly and intelligently waive his right to a trial by jury. While we are disinclined to treat this statutory directive lightly, we are equally satisfied that this defendant did not suffer deprivation of a substantial statutory right (see Article 920), that is, of being advised by the court of his right to waiver and election, since we are satisfied that through informed, able and experienced counsel he was aware of the right to waive the jury and did opt not to do so. Counsel in argument candidly admits that, in effect, the crux of his argument is simply that defendant should have been instructed appropriately by the trial judge at his arraignment. He does not argue that he was not aware of the option, nor that he did not deliberately exercise it. He likens the directive of Article 780 to the on-the-record requirement of a Boykinization. We do not sanction and will not hold to a hard and fast rule to the effect that failure of the court to verbalize the option at arraignment of defendant necessarily constitutes reversible error. We are satisfied in this case that defendant was aware of his option through advice of counsel arid opted to be tried by jury and not waive that right.

The trial judge’s omission in this case was not prejudicial to defendant.

The assignment lacks merit.

ASSIGNMENT OF ERROR NO. 11.

Defendant contends that the trial court committed reversible error when it admitted the testimony of Tommy Pippins, the minor (8 years old) child of the deceased.

Defendant claims that, because Tommy Pippins responded, when asked whether he knew what an oath was, and whether he knew what would happen if he lied, that he did not know, his testimony was incompetent.

La.R.S. 15:469 provides:

“Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.”

Reviewing his testimony in its entirety it is clear that the child had sufficient understanding to be a witness. While at first he said he did not know what an oath is, and that he does not know what happens if he tells a lie, upon further questioning it was evident that he was simply unfamiliar with the courtroom experience.

In due course he acknowledged that he knew he was not supposed to tell a lie, that he could be punished for lying, and that taking an oath was promising God that what one says is true.

The trial judge is granted wide discretion by this article in determining the competency of witnesses under 12 years old. State v. Pace, 301 So.2d 323 (La.1974). An examination of the record suggests that the trial court’s decision to admit the testimony of this child was not an abuse of his discretion. Thus, this assignment of error lacks merit.

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

      . Defendant originally assigned twelve errors for this Court’s review. However, in brief, he abandoned assignments numbers 5, 6, 9, and 12. Therefore, they will not be considered. See State v. Domingue, 298 So.2d 723 (La.1974).

      . La.C.Cr.P. art. 859 as amended provides as follows:
      Grounds for arrest of judgment The court shall arrest the judgment only on one or more of the following grounds:
      (4) The tribunal that tried the case did not conform with the requirements of Articles 779, 780 and 782 of this code;”


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Carlton Albert STOWELL et al.
    No. 57944.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.
    Carey J. Ellis, Jr., Ellis & Ellis, Rayville, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendants, Carlton Albert Stowell, James M. Garsee, and Lynn Tharp, were charged with and convicted of the theft of five cows, a violation of LSA-R.S. 14:67. After trial by jury, each of the defendants was sentenced to serve two years in the custody of the Louisiana Department of Corrections.

Defendants allege on appeal that the district court erred in overruling their Motion for a New Trial on the grounds that: (1) “in the Motion for a New Trial set out in Paragraph II A, wherein it was alleged that, as a matter of law, there was no evidence and no proof whatsoever of an essential element of the crime necessary to support a conviction of defendant, to-wit: that these defendants, or any of them, had anything to do with or participated in any manner in the commission of the crime charged, pointing out wherein the proof was completely lacking in this respect as a matter of law”; and (2) “in Paragraph II B, where in it was alleged that the evidence presented by the State on the trial of this case, consisting entirely and only of circum- ■ stantial evidence, did not exclude every reasonable hypothesis of innocence of the defendants, as required by R.S. 15:438.”

We have repeatedly held that this Court should sustain a motion for a new trial on an evidentiary basis only when there is a total lack of evidence to prove the crime or an essential element of it. See State v. Williams, La., 310 So.2d 513 (1975); State v. Collins, La., 306 So.2d 662 (1975); State v. Cade, 244 La. 534, 153 So.2d 382 (1963).

In the present case, the trial judge summarized the evidence as follows:

“ * * * [T]he evidence presented by ■the State, though mostly circumstantial, if considered by itself, would support the verdict that was rendered. That evidence consists of: (1) the property loan receipt of Mr. Garsee found at the scene of the crime; (2) the evidence of Mr. Anders, that Mr. Garsee was removed from the Richland hunting club, and that he threatened to get even, which provides motive; (3) the testimony of Tommy Kelly, that the three defendants left the bar that Sunday night together, about or after midnight, and that the next morning he saw chunks of raw meat at his mother-in-law’s house, where two of the defendants spent the night, and that he helped dispose of the meat; (4) the testimony of Linda Kelly, which corroborates that of Tommy Kelly; and (5) the testimony of Douglas Takewell to the effect that he saw fresh meat at this same house that Monday morning. That one or more of the defendants stated that they had killed a cow, and that he saw some blood spots in Tharp’s car.
“The defendant’s witnesses contradict most of the State’s evidence, so it comes down to a question of who is to be believed. If the State’s witnesses are to be believed there is enough evidence to convict, though perhaps barely. If the Defense witnesses are believed then a doubt is raised. The Court has no supernatural power to determine what witnesses, are telling the truth any more than a jury has. Apparently, the jury in this case accepted the testimony of the State’s witnesses, and rejected that of the defendant’s witnesses, and while my conclusion may not have been the same as that of the jury, I cannot say that their evaluation of the evidence was wrong, and that they gave weight to the wrong evidence. And since I find that the State’s evidence by itself is sufficient for conviction without considering the credibility of the defense witnesses, let the motion for a new trial be denied.”

We have reviewed the record and conclude, as did the trial judge, that there is some evidence to support the jury’s verdict. Hence, the defense contentions are without merit.

For the reasons assigned, the convictions and sentences are affirmed.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Clarence Louis CURTIS, Jr.
    No. 57946.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      G. William Jarman, Sanders, Miller, Downing & Kean, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Tim Screen, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Clarence Louis Curtis, Jr. was convicted after trial by jury of theft of property of a value in excess of five hundred dollars, a violation of La.R.S. 14:67, and was sentenced to serve ten years at hard labor. After sentence, the district attorney filed an information accusing defendant of prior felony convictions. La.R.S. 15:529.1. Defendant was subsequently adjudged a multiple offender; the ten-year sentence was annulled and set aside, and defendant was then sentenced to twenty years imprisonment. On appeal, this court affirmed the theft conviction but found that the state failed in its proof of the prior felony convictions as required by La.R.S. 15:529.1(F) and of the identity of defendant as the same person previously charged and convicted in the cases reflected by the evidence presented. ■ Accordingly, we reversed the finding that defendant was a multiple offender, set aside the sentence imposed and remanded the case to the trial court. State v. Curtis, 319 So.2d 434 (La.1975).

On February 27, 1976, the matter was again heard in the trial court. At this hearing, the state filed properly certified records of the Louisiana State Penitentiary-containing the photographs and fingerprints of Clarence Louis Curtis. The trial judge found defendant to be a multiple offender and sentenced him to serve twelve years at hard labor with credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence.

On this appeal, defendant claims that there was no proof of his identity as the same person convicted of the previous felonies. He argues that the properly authenticated prison records containing photographs and fingerprints, without other evidence of his identity as the Clarence Louis Curtis named in the prison records, is not sufficient proof under La.R.S. 15:529.1 for a finding that he is a multiple offender.

La.R.S. 15:529.1 requires proof of an accused’s alleged prior felony conviction as well as his alleged identity. Moreover, the burden of proof rests with the state when an accused denies the allegation of the information or refuses to answer or remains silent. See State v. Dugas, 170 La. 5, 127 So. 345 (1930). While La.R.S. 15:529.1 permits the establishment of prima facie proof of a prior felony conviction by compliance with subsection (F), necessary facts which permit enhanced punishment may also or instead be proved by other competent evidence. State v. Hill, 332 So.2d 475 (La.1976); State v. Montana, 332 So.2d 248 (La.1976); State v. Maduell, 326 So.2d 820 (La.1976). Once the state establishes a prior felony conviction, then it must offer proof that the accused is the same person who was convicted of the prior felony. The identity of the accused as the same person named in the prison record introduced must be established to the satisfaction of the trial judge. La.R.S. 15:529.1(D) so recites:

. If the judge finds that he has been convicted of a prior felony or felonies, .

(Emphasis added.)

Consequently, the sole issue to be resolved is whether evidence was introduced upon which the trial judge could find that defendant is the same person as the previously convicted felon, Clarence Louis Curtis, named in the prison record.

Various methods of proof to establish identity have been recognized. We do not consider that identity of name of defendant and the person previously convicted is sufficient evidence of identity. Identification of the accused may be by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those in the prison record introduced, or by photographs contained in the duly authenticatéd record. This court, in State v. Hardy, 174 La. 458, 141 So. 27 (1932), considered photographs attached to the certificate of the warden of the state penitentiary sufficient evidence in themselves of identification, without the evidence of fingerprints. In State v. Morris, 222 La. 480, 62 So.2d 649 (1952), the properly authenticated penitentiary records, together with photographs and fingerprints of the person imprisoned, were considered sufficient proof under La.R.S. 15:529.1, the court noting that defendant offered no testimony.

Likewise, in the instant case, we conclude that where the state has complied with the requisites of subsection (F) which includes photographs of a person with the same name as defendant in the habitual offender proceedings and defendant has offered no evidence to the contrary, there is sufficient evidence for the trial judge to make a comparison between defendant’s appearance and the photographs in the prison record, and thereafter conclude that defendant is the same person named in the prison record as having been convicted of the prior felony. Under these circumstances, defendant’s identity, for the purpose of La.R.S. 15:529.1, was properly established. Hence, the trial'judge correctly found defendant to be a multiple offender.

DECREE

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

      . Subsection (F) of La.R.S. 15:529.1 provides as follows:
      The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the finger prints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.

      . See Annot., 11 A.L.R.2d 870 (1950; L.C.S. 1971).