text:
    STATE of Louisiana v. Sharon RUDOLPH.
    No. 63227.
    Supreme Court of Louisiana.
    April 9, 1979.

      Arthur A. Lemann, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

On November 25, 1975, defendant was charged by bill of information with violation of LSA-R.S. 14:95.1 (possession of a firearm having previously been convicted of felony). On September 14, 1977, she withdrew her plea of not guilty and entered a plea of guilty to the charged crime, reserving her right to appeal errors which allegedly occurred during pretrial proceedings. On January 27, 1978, she was sentenced to serve three years at hard labor and to pay seventy dollars in court costs, in default of payment thereof to serve ten days in the parish prison.

Officer Robert J. McNeil of the Narcotics Division of the New Orleans Police Department testified at the pretrial hearing on motions to quash the bill of information and to suppress certain evidence that on the evening of March 24, 1975, he and fellow Officer Barrere received a telephone call from a reliable confidential informant who told the officers that Alfred Carter, known as “Goldie,” was at 2705 Belmont Street, Apartment E (the defendant’s residence), with a couple of juveniles, in the process of adulterating, or cutting, approximately five ounces of heroin and that thereafter Carter was going to move the rest of the heroin to another location for retail distribution at a later date. The informant stated that Carter was almost finished with this process and was preparing to move the heroin to his stash pad at 2909 Clara Street, Apartment C, the residence of his paramour, Delores McDowell.

The officers knew that Alfred Carter lived in the project at 2708 Belmont Street, Apartment C, across from 2705 Belmont, Apartment E, where he allegedly was located at that time. Further, they verified the fact that Delores McDowell lived at 2909 Clara Street, Apartment C, which was just around the corner from the other two apartments.

Officers McNeil, Barrere, Kirkpatrick and Coe checked Carter’s residence and found it in darkness. Delores McDowell’s residence at 2909 Clara Street, Apartment C, was also found in total darkness. However, at 2705 Belmont Street, Apartment E, they found the lights on and the curtains drawn and decided that possibly Carter was still there cutting the heroin. All three residences were then placed under surveillance.

According to Officer McNeil, at about 11:00 P.M. Officers Kirkpatrick and Coe, who had been observing the defendant’s apartment, notified McNeil and his partner by radio that they had seen a woman and two young men leave the defendant’s apartment and walk toward Clara Street. A moment or two after receiving the message McNeil and Barrere caught sight of the trio. McNeil testified that the three walked in single file with the woman in the middle and that the woman had her hand inside her coat as if to secrete something within. He further stated that the two men stood on each side of the doorway acting as sentries as the woman unlocked the door and entered the residence at 2909 Clara, Apartment C, and then followed her inside. The lights inside were turned on momentarily and then immediately turned off.

Officer McNeil further related that a short time later they were contacted by the narcotics office and told that the confidential informant had contacted the office apparently with more information. Officers McNeil and Barrere left the scene to make contact with the confidential informant. On this occasion, Officer Barrere talked with the informer who told him that the heroin had been moved to 2909 Clara Street, Apartment C. The informant said that the surveillance had been detected and that: McDowell had called Carter and informed him of the surveillance; Carter had told McDowell to put the heroin in a place of easy disposability; Carter was going to get his machine gun in order to protect his investment from the police.

McNeil testified that the officers were fearful that Carter would provoke a deadly fray in order to protect the heroin. This fear was based upon an altercation which occurred in January of 1975 when they executed a search warrant in the 2700 block of Sixth Street at the residence of Ronald Hughes and Jessie Gleason, reputed functionaries of Carter, and seized approximately fifty-eight dosage units of heroin. Officer McNeil’s partner was wounded and Hughes was killed in an exchange of gunfire during the raid. According to McNeil, when the police later executed a search warrant at Carter’s residence, they seized numerous weapons, as well as letters wherein Carter expressed a desire to avenge the death of his friend by the police officers.

According to McNeil, the officers deemed the circumstances “exigent” and devised a plan to seize the heroin and arrest the defendant. Officers from the New Orleans Police Department, Sixth District, in marked vehicles with their lights and sirens on, were called to the scene on the pretext of investigating a shooting. When the Sixth District officers entered the Clara Street apartment under the guise of making inquiries about the fabricated shooting, Officer McNeil and other narcotics officers entered immediately behind, advised McDowell of her rights and told her they believed that she was in possession of firearms and contraband. A machine gun and a large quantity of heroin was seized and McDowell placed under arrest. The officers then set out to arrest Carter, feeling, according to McNeil, that they needed to locate him as quickly as possible.

After checking Carter’s residence and learning that he had not been home all evening, the officers went to the defendant’s residence, the address where Carter had allegedly cut up the heroin earlier. When they arrived, they heard loud music coming from inside. According to McNeil, the officers knocked and announced their authority but got no response. McNeil further testified that after knocking a second time, they heard someone running, whereupon they broke down the door and arrested Carter as he was running into the bedroom. The defendant was also in the apartment, and a shotgun, reported to have been on the bed, was seized.

At Carter’s trial, the defendant herein testified on behalf of Carter that the shotgun seized in her apartment that night did not belong to Carter, but rather belonged to her. Following Carter’s trial, defendant was charged with violating R.S. 14:95.1 on the basis of her in-court testimony. She subsequently pled guilty, reserving a right to appeal certain pretrial rulings of the trial court.

While the defendant assigned as error the lower court’s denials of her motions to quash, to withdraw her plea of guilty and to suppress, only the portion of her motion to suppress seeking to have the evidence which was seized at her apartment during the arrest of Carter has been briefed and argued before this Court. Hence, those assignments which were neither briefed nor argued are deemed abandoned. State v. Wientjes, 341 So.2d 390 (La.1976); State v. Phillips, 337 So.2d 1157 (La.1976); State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (La.1972).

The defense assigns as error the failure of the trial court to suppress the weapon, claiming that it was seized as a result of an invalid, warrantless search of her apartment. The State contends that the seizure was valid since they had probable cause to arrest Carter, the circumstances were exigent and the gun seized was in plain view, or, in the alternative, was seized incident to the arrest of Carter. The defense, on the other hand, contends that since the weapon was seized without a warrant, the State must show some exceptional circumstance to validate the seizure. They further claim that the seizure cannot be validated by reference to the plain view doctrine since none of the three criteria for its application, as set down by this Court in State v. Fearn, 345 So.2d 468 (La.1977), and State v. Parker, 355 So.2d 900 (La.1978), are present in this case.

In State v. Fearn, supra, this Court followed the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and held:

“The conditions necessary for the applicability of the exception [plain view] are: (1) there must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is discovered inadvertently, and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. . . .” (State v. Fearn, 345 So.2d at 470)

It is axiomatic that, absent one of the well-delineated exceptions, a warrant-less search or seizure is per se unreasonable under the Fourth Amendment of the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974. Coolidge v. New Hampshire, supra; State v. Daigre, 364 So.2d 902 (La.1978); State v. Guzman, 362 So.2d 744 (La.1978); State v. Colvin, 358 So.2d 1250 (La.1978); State v. Parker, supra. Also, the State has the burden of proving that a warrantless search and seizure was justified. State v. Wilkerson, 367 So.2d 319 (La.1979); State v. Brown, 366 So.2d 550 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

As noted above, in order for the plain view doctrine to apply, there must be a prior justification for the intrusion into the protected area. State v. Fearn, supra. Since no search warrant for the defendant’s residence was obtained, the State must show some exceptional circumstance which would provide a justification for the officers entering the defendant’s apartment. The State relies wholly upon the theory that the police had probable cause to arrest Carter for the commission of a felony, that they had information which caused them to reasonably believe Carter was in the defendant’s residence, and that circumstances were exigent since they reasonably feared Carter would escape and/or provoke a deadly fray with the police if he found out they had seized his heroin. Under these circumstances, the State claims it could forcibly enter the defendant’s home to effect an arrest upon Carter and that it was unnecessary for them to obtain an arrest warrant to do so.

The threshold issue is whether the officers had probable cause to arrest Carter. See State v. Franklin, 353 So.2d 1315 (La.1977); State v. Ranker, 343 So.2d 189 (La.1977).

In State v. Thomas, 349 So.2d 270, 272 (La.1977), we set forth the principles applicable to warrantless arrests:

“A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause. State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976); State v. Scott, 320 So.2d 538 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); State v. Odom, 292 So.2d 189 (La. 1974). Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Marks, 337 So.2d 1177 (La.1976); State v. Randolph, 337 So.2d 498 (La.1976); State v. Gilmore, 323 So.2d 459 (La.1975); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest. State v. Ranker, supra; State v. Randolph, supra.
“LaFave ‘Street Encounters’ and the Constitution: Terry, Sibron, Peters and Beyond, 65 Mich.L.Rev. 40, 73-74 (1968) observes:
‘As to the probability required for an arrest, it may generally be stated that it must be more probable than not that the person has committed an offense, although this is less certain as to the probability that a particular person is the offender than to the probability that a crime has been committed by someone. In the latter situation, which assumes central importance when there is no doubt who the offender is if a crime has been committed, courts ordinarily require that criminal conduct be more probable than noncriminal activity. This approach is reflected in those decisions which say that there must be “more evidence for [the existence of criminal conduct] than against” or that the suspect’s actions must be “inconsistent with any innocent pursuit,” and also in the many cases where grounds for arrest have been found lacking because the conduct of the suspect was equivocal, that is, where the possibility of criminal conduct was no greater than the possibility of innocent behavior.’ (Footnotes omitted.)”

State v. Thomas, supra at 272; see also State v. Ranker, supra, State v. Franklin, supra.

In examining the evidence in this case, we conclude that the critical element is the information given by the confidential informant with whom Officer McNeil had been in contact. While a police officer may arrest a person without a warrant if he has reasonable cause to believe that the person has committed an offense, Code of Criminal Procedure Article 213, the defendant may request a probable cause determination before an independent magistrate who must determine whether the facts and circumstances known to the arresting officer and of which he had reasonably trustworthy information were sufficient to justify a man of ordinary caution in believing that the person arrested had committed a crime. State v. Marks, supra.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court held that when a search warrant is based solely on hearsay, the affidavit must indicate some of the underlying circumstances on which the informant bases his conclusions and some of the circumstances supporting the informant’s credibility. In State v. Paciera, 290 So.2d 681 (La.1974), this Court held:

“If we can deduce a rule from these cases, it is this: The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information. . . ” (State v. Paciera, 290 So.2d at 685-686)

See also State v. Smith, 350 So.2d 1178 (La.1977); State v. Linkletter, 286 So.2d 321 (La.1973).

This Court has applied these same principles in cases where the hearsay statements of a confidential informant form the basis for probable cause to arrest in determining whether an arrest was valid. State v. Gipson, 359 So.2d 87 (La.1978); State v. Edwards, 351 So.2d 500 (La.1977); State v. Ranker, supra; State v. Marks, 337 So.2d 1177 (La.1976). Likewise, the requirements apply equally to a hearing called to test the constitutionality of an arrest without a warrant as they do to such a hearing challenging an arrest where a warrant was obtained.

Thus, at the hearing on the motion to suppress in the instant case, the burden was on the State to’ show that the confidential informant was credible and that the information given was reliable. We conclude the State carried its burden.

The State introduced sufficient evidence from which the trial judge could conclude both that the confidential informant was credible and the information reliable. We agree that the mere assertion by the police that an informer is reliable is insufficient to establish his credibility. However, we believe that the information given by the informant was sufficiently corroborated by independent investigation as to establish the credibility of the informant. State v. Mena, 344 So.2d 357 (La.1976); State v. Paciera, supra.

Officer McNeil testified that they knew Carter lived at 2708 Belmont, Apartment C, which was across the street from 2705 Belmont, Apartment E, the defendant’s apartment. They also determined that Delores McDowell lived at 2909 Clara, Apartment C. The police were also aware that Carter was a known heroin distributor. Before taking any action, the police undertook a surveillance of the two residences referred to by the informer (where the heroin was and where Carter intended to move it) and Carter’s residence. The police then observed what appeared to be what the informer had told them would occur — a transfer from the defendant’s residence to the McDowell residence. This was confirmed by a second contact with the informer who indicated that the heroin had been moved to the McDowell residence. We believe that the highly detailed character of the informant’s information, together with the independent investigation by the police combined to demonstrate the informant’s credibility.

We also find the testimony of Officer McNeil was sufficient to establish the reliability of the information. This Court has held that personal observation by the informant of the persons and events about which he reports to the police is sufficient to establish the reliability of the information. State v. Hysell, 364 So.2d 1300 (La.1978); State v. Paciera, supra. In interpreting the officer’s testimony in a common sense manner, the information supplied by the informant was of such detail and so current that it can be inferred that the informant could only have known it as a result of personal observation. Cf. State v. Marks, supra, at 1182.

We, therefore, conclude that based upon the information supplied by the informant, coupled with the police officers’ past experience with Carter and their independent investigation on that particular night, the police had probable cause to arrest Carter for possession of heroin with intent to distribute. We make this determination without consideration of the evidence seized in the search of McDowell’s apartment.

Even though we find probable cause to exist, nevertheless, the intrusion would not be justified unless we find that the police could rightfully forcibly enter the defendant’s residence to effect a warrant-less arrest of Carter. In State v. Ranker, 343 So.2d 189 (La.1977), this Court expressed grave doubts as to the constitutionality of Louisiana Code of Criminal Procedure Article 213(3) as applied to an unauthorized entry of a dwelling to effect a warrantless arrest under non-exigent circumstances. See also State v. Smith, 352 So.2d 216 (La.1977). In that case, however, we found it unnecessary to decide that issue since we found no probable cause to have existed to believe the person arrested had committed a crime. Today, we also find it unnecessary to decide the ultimate issue since we believe sufficient exigent circumstances existed in this case to justify the warrantless intrusion.

This Court held in State v. Smith, supra, that the possibility that the person to be arrested might escape, with or without a dangerous confrontation, constitutes exigent circumstances warranting the intrusion if the police have reasonable grounds to believe the person to be arrested is in the suspected dwelling. Here, there is no question that the officers had reasonable grounds to believe Carter was in the defendant’s residence. Further, after the officers knocked twice and announced their authority, they heard the sound of someone running inside. We believe that under these circumstances they could reasonably conclude that Carter may have been attempting to escape. In addition to the possibility of escape, an additional element further convinces us that the actions of the police were justified. Testimony established that the police had already had one deadly altercation with persons associated with Carter, that a search of Carter’s residence had produced numerous weapons as well as letters by Carter indicating a desire by Carter to avenge the death of a friend killed in a shootout with police and that Carter had vowed to protect his investment in the heroin from seizure by the police. The record convinces us that the police were justified in their conclusion that their actions were necessary to prevent another deadly altercation with Carter.

Considering all of these circumstances, we believe that once the police were refused admittance after knocking and announcing their authority, they were justified in forcibly entering the defendant’s apartment.

Having determined that the police had a prior justification for the intrusion into the defendant’s residence, the next question is whether the discovery of the shotgun was inadvertent. We conclude that it was. Officer McNeil testified that the sole purpose of the entry into the defendant’s residence was to arrest Carter. This is borne out by the fact that the heroin and the machine gun had already been recovered at the McDowell residence. The weapon was discovered on the bed during the course of the arrest. We, therefore, find that the discovery was inadvertent.

The final inquiry is whether it was “immediately apparent without close inspection that the items [were] evidence or contraband.” State v. Fearn, supra. Carter was arrested, according to uncontradicted testimony, running into the bedroom where the shotgun lay on the bed. We believe the shotgun was rightfully seized as evidence for whatever charges may have been subsequently brought against Carter.

Having carefully examined the facts of this case in light of the three-pronged test for the application of the plain view doctrine set forth by the court in State v. Fearn, supra, we conclude that the seizure of the shotgun from the apartment of the defendant was proper and that the trial judge committed no error in denying defendant’s motion to suppress.

DECREE

The conviction and sentence of the defendant are affirmed.

AFFIRMED.

      . We note briefly that the State did not contend that it was seeking any contraband in the defendant’s home under some exception to the warrant rule. Officer McNeil testified that the sole reason they entered the defendant’s residence was to arrest Carter.

      . The following would be a summary of facts known to the officers at the time of the search of McDowell’s residence where the heroin and machine gun were seized without the informer’s tips. (1) Alfred Carter was a suspected heroin dealer. (2) On the night in question the lights were out at his residence and that of Delores McDowell and the lights were on and shades drawn at Sharon Rudolph’s residence. (3) Two men and a woman left Sharon Rudolph’s residence and walked single file to Delores McDowell’s residence. (4) The two men stood on either side of the door while the female opened the door, then they followed her inside. (5) The lights went on, then went off again.

      . Other evidence which tends to establish the credibility of the informant is the fact that he has previously supplied information which has led to arrests and/or convictions. State v. Hysell, 364 So.2d 1300 (La.1978); that the information supplied is a declaration against the penal interest of the informer, State v. Welsh, -So.2d-(La.1979), No. 62,907; State v. Weinburg, 364 So.2d 964 (La.1978); State v.

        Anderson, 357 So.2d 547 (La.1978); State v. Mena, 344 So.2d 357 (La.1976); that the informer is ready and willing to testify in court to the facts which he or she has supplied to the police, State v. Welsh, supra.

      . We, therefore, express no opinion as to whether exigent circumstances existed sufficient to justify the warrantless search of McDowell’s apartment and the subsequent seizure of a quantity of heroin and a machine gun.

      . LSA-C.C.P. art. 213(3) purports to authorize warrantless arrests whenever the officer has reasonable cause to believe the person to be arrested has committed an offense.

      . The forcible entry after being refused admittance is allowed under Code of Criminal Procedure Article 224, which provides:
      “In order to make an arrest, a peace officer, who has announced his authority and purpose, may break open an outer or inner door or window of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where the person to be arrested is or is reasonably believed to be, if he is refused or otherwise obstructed from admittance. The peace officer need not announce his authority and purpose when to do so would imperil the arrest.”

      . Defense counsel claims that the discovery could not be inadvertent since the warrantless intrusion was planned. This argument might be stronger if the object of the planned war-rantless intrusion had been the shotgun and/or the intrusion had not been justified under the circumstances. We find the argument to be without merit.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Robert ADAMS.
    Nos. 63336, 62878 and 62880.
    Supreme Court of Louisiana.
    April 9, 1979.

      J. Eugene Osburn, Johnson & Johnson, Monroe, for defendant-relator in Nos. 62878, 62880 and for defendant-appellant in No. 63336.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Lee Edward Ineichen, Jr., Monroe, Asst. Dist. Atty., for plaintiff-respondent in Nos. 62878, 62880 and for plaintiff-appellee in No. 63336.
   DENNIS, Justice.

The question we are called upon to decide is whether the defendant, who was forced to defend himself in this criminal proceeding was deprived of his constitutional rights to the assistance of an attorney appointed by the Court.

Defendant, Robert Adams, while unrepresented by counsel, was convicted of possession of marijuana with intent to distribute, La.R.S. 40:966, sentenced to 5V2 years at hard labor and fined $1,000, in default of which he was sentenced to an additional 6 months in jail. He appealed and applied to this court for writs after an unsuccessful habeas corpus proceeding below. We granted defendant a writ and have consolidated the proceedings for review. We reverse the defendant’s conviction and sentence and remand for a new trial and further proceedings consistent with our opinion.

Defendant’s principal contention is that the trial court erred when it failed or refused to appoint an attorney for him and forced him to represent himself at trial.

In a criminal prosecution, at each stage of the proceedings, every person is entitled to the assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. La.Const. of 1974, Art. 1, § 13; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Accordingly, in the absence of a knowing and intelligent waiver of this right, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. Argersinger v. Hamlin, supra.

The 1974 Louisiana Constitution mandated the legislature “[to] provide for a uniform system for securing and compensating qualified counsel for indigents.” La.Const. of 1974, Art. 1, § 13. By Act No. 653 of 1976, R.S. 15:141-149, the legislature established a state-wide indigent defender system. In addition to providing for the administrative organization and financing of the system at both state and local levels the statutes set forth criteria and procedures for determining whether an individual is an indigent. The determination of indigency must be made by the court after considering whether the person is needy, the evidence of his ability to pay, his property, his outstanding obligations, and the number and ages of his dependents. Release on bail alone shall not disqualify a person for appointment of counsel. La.R.S. 15:147. In the event the person is partially able to pay an attorney’s fee, the court must nevertheless appoint counsel, but it shall order the accused to pay defense costs to the extent of his ability into the local indigent defender board fund. La.R.S. 15:148. See State v. McGowan, 359 So.2d 972, 975 (La.1978).

This Court has on previous occasions discussed the foregoing constitutional principles and their statutory implementation. See State v. McGowan, supra; State ex rel. Byrd v. Henderson, 342 So.2d 572 (La.1976). Unless the trial court determines that the accused has made a knowing and intelligent waiver of his right to the assistance of counsel, it may not effectively conduct a trial or other proceeding in the absence of defense counsel. If the accused does not have an attorney and contends that he is unable to employ one, conceivably the court may consider the defendant to have waived his right to assistance of counsel if he is “clearly able to secure retained counsel [but] persists in demanding court appointed counsel and desists from employing an attorney despite a reasonable opportunity to do so.” State v. McGowan, 359 So.2d at 974. A determination of whether these circumstances clearly exist should be made after a hearing in accordance with La.R.S. 15:147. State v. McGowan, 359 So.2d at 974.

To make the right to assistance of court appointed counsel a reality, however, the court must not confine itself to a determination of whether the accused ought to be able to retain counsel but must decide whether in fact he is able to do so. State v. Tymcio, 42 Ohio St. 39, 325 N.E.2d 556 (1975). Cf. Brown v. State, 27 Md.App. 223, 340 A.2d 409 (1975). Furthermore, the accused is entitled not only to an attorney, but one who can and will provide “effective aid” in preparation and trial of his case. Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 172 (1932). See also ABA Standards for Criminal Justice, Standards Relating to Providing Defense Services §§ 6.1-6.4. Accordingly, if the court finds that the accused is not fully and actually able to retain such an attorney, it must appoint counsel to assist the accused at each stage of the proceedings.

In the instant case, the defendant apparently requested counsel initially, but after he was interviewed by a court or indigent defender board investigator, the court told the defendant that he must retain his own attorney. The clerk of court’s minutes reflect that after his interview, defendant appeared in court on three occasions without counsel and was ordered to employ an attorney. One minute entry reflects that defendant told the court he could afford to retain counsel. Defendant denied having ever made this statement and testified that he only told the judge that he would attempt to retain a lawyer.

On the day his case was set for trial, the defendant again appeared without counsel. The record reflects that he informed the court he could not afford a lawyer and asked that one be appointed. Without conducting a hearing, and apparently relying only upon the information supplied during the investigator’s interview with the defendant three months previously, the court denied his .request and proceeded with the trial which resulted in the defendant’s conviction and sentence of 5l/2 years imprisonment at hard labor.

According to the evidence of record, prior to his trial the defendant was employed by the Coca Cola Bottling Company and was paid weekly wages of $106.00. At the time charges were filed against him and his wife, they were both working.. His wife later became unemployed and at the time of his trial he was the sole supporter of his wife and five year old child. The defendant had no liquid assets which could have provided a source of funds for an attorney. He owned a modest house, which was substantially mortgaged, an inoperable 1968 automobile, and some household goods. He owed debts totalling $29,829.40, including his F.H.A. home loan. His wife testified without contradiction that the family’s subsistence expenses amounted to $625 per month.

The defendant and his wife were jointly charged with offenses as the result of evidence obtained from their home through execution of a search warrant. The only information as to the fees normally charged by effective counsel for representation in cases of this nature at the time and locality in question is contained in the testimony of the defendant and his wife. Initially, one lawyer agreed to represent both the defendant and his wife for $500. The wife employed this attorney with money she- had saved and borrowed from her parents, paying the attorney $250 in advance. Fearing a conflict of interest, the defendant decided to seek other counsel. Later he went back to see his wife’s lawyer, and was quoted a fee of $500 for his individual defense. The defendant testified that he attempted to hire two other attorneys, one of which required a fee of $1,200 with $700 in advance, and another who demanded $800 with $400 in advance, but was unable to pay the advances they specified. There is no indication in the record that these fees were unreasonable or that effective legal representation was available to the defendant for a lesser fee.

Under all of the circumstances, which are undisputed in the record designated for our review, we conclude that the defendant was not clearly financially able to fully provide for an attorney for his defense and should have had counsel appointed to represent him at trial. The proceedings conducted against him without counsel as well as the conviction and sentence based thereon must be set aside. Accordingly, the defendant’s conviction and sentence are reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED FOR A NEW TRIAL.

      To the extent the defendant is found able to contribute toward the expenses of his defense, the court may order him to make payments compatible with his financial ability, to become part of the indigent defender fund of the district. R.S. 15:148.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Patrick BURNHAM, Appellant.
    No. 63277.
    Supreme Court of Louisiana.
    April 9, 1979.
   TATE, Justice.

The defendant was convicted of first degree murder, La.R.S. 14:30 (1976), and sentenced to life imprisonment. On his appeal, the defendant argues six assignments of error presenting four arguments.

We find that none of the assignments present reversible error, nor do any involve legal issues not governed by clearly applicable legal principles or circumstances likely to recur. Accordingly, we have discussed and disposed of the assignments in an appendix attached to this opinion, which remains a public record of this court but which will not be published with this opinion.

We affirm the conviction and sentence.

AFFIRMED.


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

text:
    STATE of Louisiana v. Mark HUGUET et al.
    No. 63301.
    Supreme Court of Louisiana.
    April 9, 1979.

      Mike J. Balen, Covington, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Kurt F. Sins, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

Eight defendants were charged in one bill of information (No. 65025) with resisting an officer in violation of R.S. MilOSid). After the September 5 hearing on defense application for particulars and based on the state’s responses to several requests in the bill of particulars, the defense filed two motions to quash (C.Cr.P. 532(5)) alleging that “the offense charged in the indictment was not committed . . . ” (C.Cr.P. 485); that R.S. 14:108(d) was unconstitutionally vague and overbroad; and that the state had failed to amend its answers to the particulars question 4 within five days of a court order to do so (C.Cr.P. 485). After the September 26 hearing on these motions, the trial court denied them and the defendants sought review of that denial asserting three assignments of error. We granted writs.

The state’s answers to the bill of particulars gives the following facts: on the evening of June 4, 1978, defendants were standing outside the Mason Nez Liquor Store in Covington, Louisiana when Officers Edwards and Johnson, who were patrolling the area, observed the large number of individuals drinking out in the street. With no intention of arresting anyone, the officers asked the group to take their beer into the bar or elsewhere and move out of the street. At some point, Officer Pechón arrived and was the target of a beer bottle thrown by one of the defendants, Sterling Wayne Smith. Smith was arrested for disturbing the peace. All the others were told to move on, but failed to obey. The defendants were then booked on various charges.

Assignment of Error No. 2

The defense contends by this assignment that the trial court erred in denying the motion to quash because the information failed to allege the offense of resisting an officer, R.S. 14:108. The information charges that the eight defendants:

“Unlawfully and intentionally opposed and obstructed Ptn. Ann Edwards and Res. Ptn. Robert Johnson, members of the Covington Police Department, acting in their official capacity and authorized by law to make a lawful arrest, by congregating with others on a public street, and refusing to move on when ordered to do so by the said officer’s (sic), in violation of R.S. 14:108(d).”
R.S. 14:108 provides:
“Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
The phrase ‘obstruction of’ as used herein shall, in addition to its common meaning, signification and connotation mean:
(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
(b) Any violence toward or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
(d) Congregates with others on a public street and refuses to move on when ordered by the officer.
Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.”

The state and defense hold different views of the conduct which R.S. 14:108 proscribes. The state repeatedly emphasized in both hearings that R.S. 14:108 means that the officer merely has to be authorized to act in his official capacity and that he does not have to be involved in arresting, seizing property, or serving process before R.S. 14:108 applies. Apparently, the state reads R.S. 14:108(d) as making the refusal to move on when ordered by police a criminal act. The defense repeatedly emphasized that R.S. 14:108 requires not only that the officer be authorized to arrest, seize property, or serve process, but also the officer must be acting in his official capacity — arresting, seizing property, or serving process — before there is criminal “obstruction of” an officer.

In Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), the United States Supreme Court held unconstitutionally broad R.S. 14:103.1 which provided:

“A. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby:
(1) crowds or congregates with others . in or upon ... a public street or public highway, or upon a public sidewalk, or any other public place or building . . . and who fails or refuses to disperse and move on . when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person . shall be guilty of disturbing the peace.”

R.S. 14:108(d) cannot be substituted for R.S. 14:103.1, which was declared unconstitutional by the United States Supreme Court and repealed later by the Louisiana legislature. R.S. 14:108(d) does not make the refusal to move when ordered by police a crime unless it obstructs police in their official duties in making a lawful arrest, seizure, or service of process. The statute further defines “obstruction of” in its “common meaning, signification and connotation” which, according to Merriam Webster, Webster’s Third New International Dictionary, 1971, means “something that obstructs or impedes: IMPEDIMENT, HINDRANCE.” R.S. 14:108 additionally provides some specific factual illustrations of obstruction: the offender obstructs when he intentionally impedes his own arrest by his flight, R.S. 14:108(a), by his acts of physical violence toward the arresting officer, R.S. 14:108(b), by his refusal to identify himself, R.S. 14:108(c), or when he intentionally impedes the arrest of another (or the seizure of property or service of process) by congregating with others and refusing to move on when ordered by the officer, R.S. 14:108(d). However, the gravamen of the offense remains the intentional obstruction of an officer acting in his official capacity, as defined and illustrated. As we interpret R.S. 14:108, the statute does not suffer from the overbreadth of former R.S. 14:103.1.

In passing on a motion to quash, the trial court must determine whether the facts set forth in the bill of particulars, taken in connection with the indictment, are sufficient to constitute a crime; the state, of course, is limited in its proof to the facts recited in the bill of particulars. State v. Heymann, 256 La. 18, 235 So.2d 78 (1970). As this court explained in State v. Legendre, 362 So.2d 570, 571 (La.1978):

“To have a valid trial it is sacramental that an offense punishable under a valid statute or ordinance be charged. And when an indictment is defective it should be quashed when it fails to charge the offense intended to be charged in the manner required by law. It will not do to base an indictment . . . upon an allegation of fact which cannot conceivably satisfy an essential element of the crime, and compel the accused to withstand the rigors of a jury trial with no expectation that a conviction can be supported by such an allegation. . . . ” (Emphasis added).

In the instant case, the state’s responses to the bill of particulars indicate that the officers were not attempting to serve process or seize property and that “[t]he officers had no intention of arresting anyone (before the circumstances giving rise to the charge of resisting an officer). They merely requested the group to take their beer into the bars or elsewhere and to move out of the street.” Further, the defense asked in request 8 of the bill of particulars, “What actions on the part of the officers Edwards and Johnson were opposed or obstructed by defendants?” The state’s written response was, “The fact that the defendants failed to obey a lawful order of the police officers, opposed and obstructed the officers,” and in open court its amended answer explained that the lawful order was “to disburse [sic] and go back inside with their beer bottles.” The final amended answer accepted by the trial court was:

“Your Honor, if a police officer is working in his official capacity and sees a crowd of people gathered that could be instigating riots or anything, the police officer stops and tells them, ‘Look, I don’t want to put anybody under arrest. Go back inside and take your bottles in.’ He doesn’t have to place them under arrest. But as soon as someone starts to obstruct that (order), that would be resisting a lawful officer who is lawfully authorized to make an arrest, and he should reasonably know that if he’s in uniform.” (Emphasis added).

The state set out facts in the responses to the bill of particulars to show that the defendants were arrested for disobeying the general order to move on, but the state did not attempt to set out facts to show that the defendants’ disobedience to this order obstructed the officers, acting in their official capacity, while attempting to seize property serve process, or arrest Smith for throwing the beer bottle. The motion to quash the information charging a violation of R.S. 14:108(d) should have been granted, because the charge was insufficient as explained in the bill of particulars. C.Cr.P. 532(5); 485.

Therefore, the district court’s denial of the motion to quash the bill of information charging the eight defendants with violating R.S. 14:108(d) is reversed, and the bill of information (No. 65025) is quashed.

Huguet also complains that he was charged in another bill, No. 65037, with violating R.S. 14:108(b) (resisting arrest), because he was resisting an unlawful arrest (for failing to move on, R.S. 14:108(d)). There is no bill of particulars before us (in No. 65025 or No. 65037) establishing that fact. Therefore, the ruling denying motion to quash bill number 65037 is affirmed.

SUMMERS, C. J.,

dissents from the decree quashing bill of information No. 65025 and concurs in the denial of the motion to quash bill of information No. 65037.

      . In addition the defendants were also charged by bill of information with the following:
      Mark Huguet — R.S. 14:108(d) (65025) and R.S. 14:108(b) (65037)
      Glenn Lavigne — R.S. 14:108(d) (65025) and R.S. 14:35 (65031)
      David London — R.S. 14:108(d) (65025)
      Edward Sharp — R.S. 14:108(d) (65025) and R.S. 14:35 (three counts) (65026, 65030, 65034) Michael Smith — R.S. 14:108(d) (65025) and R.S. 14:35 (65026)
      Richard Smith — R.S. 14:108(d) (65025) and R.S. 14:35 (65026)
      Sterling Wayne Smith — R.S. 14:108(d) (65025) R.S. 14:35 (three counts) (65028, 65029, 65033) and R.S. 14:37 (65036)
      Wallace Smith — R.S. 14:108(d) (65025) and R.S. 14:35 (65034)

        State v. Wallace Smith, 65027, State v. Michael Smith, 65032, and State v. Richard Smith, 65035 were nolle prossed.

      . The defense argues:
      “You go back to 14:108, the very last part of the preamble to that, it uses this language — after it sets these three circumstances forward, it says, ‘When the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.’ It re-emphasizes those three categories. It doesn’t allow an officer to just because he has his uniform on and his badge to do anything that he wishes and let it fall under the heading of ‘official capacity.’ It tells you right here what his official capacity has to be . . ”

      . In Cox, supra, the United States Supreme Court struck down R.S. 14:103.1 for the vagueness of its first element: that the offender congregate with others “with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby.” This court had defined that term as an effort “to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.” State v. Cox, 244 La. 1087, 1106, 156 So.2d 448, 455 (1963). The United States Supreme Court found the statute “unconstitutionally vague in its overly broad scope.” Cox v. Louisiana, supra, 85 S.Ct. at 462, as authoritatively construed by this court.

      . Concerning arrest, the defense had specifically asked in request 4 of the bill of particulars whether the officers intended to arrest any of the defendants before the circumstances giving rise to the charge of resisting an officer to which the state responded that the officers had no intention of arresting anyone. Request 4 B asked whether any defendants were actually arrested before the circumstances giving rise to the charge of resisting an officer and if so, give the ordinance number and any subsection which may apply. The state’s original response to 4 B was that Sterling Wayne Smith was the first person actually arrested for disturbing the peace.

      .The defense was dissatisfied with the state’s written response:
      “BY THE COURT:
      You mean how they opposed and obstructed? DEFENSE:
      Well, what constituted the violation. What facts constituted it.
      STATE:
      Your Honor, I think it’s also stated in some of these, the initial people were requested, ordered, whatever, to go inside with their beer bottles or to disburse [sic], and that would be acting in their official capacity and they were in uniform, I believe, at the time.” (Emphasis added).


author: MARCUS, Justice.

text:
    Donald A. BREAUX and Julia A. Breaux v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and Traders and General Insurance Company.
    No. 63383.
    Supreme Court of Louisiana.
    April 9, 1979.

      Michael J. Samanie, Robert L. Barrios, Law Offices of Michael J. Samanie, Houma, for plaintiff-applicants.
    Watson, Blanche, Wilson & Posner, Baton Rouge, for Government Emp. Ins. Co.
    E. Ross Buckley, Jr., Hebert, Abbott & Horack, New Orleans, for Traders and General Ins. Co.
   MARCUS, Justice.

Donald A. Breaux and Julia A. Breaux instituted this action against Government Employees Insurance Company (GEICO) to recover damages for the death of their daughter, Mary Ann Breaux, resulting from an automobile accident.

It is alleged that Mary Ann Breaux was a guest passenger in an automobile operated by Gayle M. Ayo and insured under a policy issued by GEICO to Samuel L. Ayo at the time of the accident. Liability limits of the GEICO policy were $50,000 per person and $100,000 per accident; the policy also contained uninsured motorist coverage in the same amounts.

By supplemental and amended petition, plaintiffs named Traders and General Insurance Company (Traders) as a defendant, alleging that, at the time of the accident, Traders had a policy in effect covering motor vehicles owned by plaintiffs which provided uninsured motorist coverage in the amount of $20,000 per person and $40,000 per'accident. Plaintiffs alleged that, because their damages might exceed the limits of liability coverage under the GEICO policy, they were entitled to recover pursuant to the uninsured motorist coverage under the policy issued by Traders to them. Plaintiffs also named Gayle M. Ayo (host driver) as a defendant.

Prior to trial, plaintiffs settled their claims against GEICO for $39,700 and released GEICO from all claims arising out of the accident. The release expressly relinquished all of plaintiffs’ claims against GEICO under both the liability and uninsured motorist provisions of its policy. The payment received by plaintiffs from GEICO was a portion of the liability coverage of GEICO’s policy, the remainder of the $100,-000 liability limit having been depleted through settlement with other parties injured in the accident. Plaintiffs proceeded with their claim against Traders and Gayle M. Ayo.

Traders answered generally denying the allegations in plaintiffs’ petition and further answered alleging that the GEICO policy (issued with respect to the Ayo vehicle) afforded uninsured motorist protection to Mary Ann Breaux, a guest passenger in the Ayo vehicle and deceased daughter of plaintiffs. Traders contended that the uninsured motorist coverage under the GEICO policy was primary and that any uninsured motorist coverage under the Traders policy was excess, becoming effective only after the primary uninsured motorist coverage provided by the GEICO policy had been exhausted. Because plaintiffs released GEICO from all liability under the uninsured motorist coverage of GEICO’s policy, Traders argued that it must be given credit for the amount of GEICO’s uninsured motorist coverage -which was not pursued by plaintiffs. In addition, Traders third partied Gayle M. Ayo, alleging that, because her negligence was the sole cause of the accident, it should be allowed recovery against her for any sums recovered by plaintiffs against Traders.

The trial was limited to the issues of quantum and coverage by Traders as Gayle M. Ayo’s negligence had been stipulated prior to trial. The trial court rendered judgment in favor of plaintiffs and against Traders in the sum of $76,904.65 pursuant to the uninsured motorist coverage under the policy issued by Traders to plaintiffs. The judgment, however, credited Traders for the amount received by plaintiffs in settlement with GEICO, thus resulting in an award against Traders in the sum of $37,204.65. Judgment was granted in favor of Traders and against the third party defendant, Gayle M. Ayo, in the full sum of $37,204.65.

The court of appeal reversed the judgment of the trial court. Although the terms of the GEICO policy expressly excluded uninsured motorist coverage to plaintiffs under the facts of this case, the court noted that La.R.S. 22:1406D(2)(b) includes within the definition of an uninsured motor vehicle “an insured motor vehicle when the automobile liability insurance coverage on such automobile is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of [the] accident . . . .” Therefore, since the collective damages sustained by the passengers in the Ayo vehicle exceeded GEICO’s liability coverage, the Ayo vehicle was statutorily defined as an uninsured vehicle. Accordingly, plaintiffs could recover under both the liability and uninsured motorist coverage of the GEICO policy, making the uninsured motorist coverage under the Traders policy excess to these coverages. Finally, since the limits of GEICO’s primary uninsured motorist coverage were $50,000 per person and $100,000 per accident, by analogous consideration of the settlement effected by plaintiffs and GEICO under GEICO’s identical liability coverage, plaintiffs’ share under the primary uninsured motorist coverage would have been at least $39,700. Therefore, Traders, as excess insurer, was entitled to a credit of said amount against the judgment in favor of plaintiffs. Since the judgment in favor of plaintiffs was in the amount of $37,204.65, the court concluded that the judgment of the trial court had to be reversed. On application of plaintiffs, we granted certiorari to review the correctness of this decision.

The sole issue presented for our consideration is whether the GEICO policy (issued with respect to the Ayo vehicle) affords uninsured motorist coverage to plaintiffs’ daughter (a guest passenger in the Ayo vehicle) when the sole cause of the accident was the negligence of the host driver of that vehicle. If we find that our uninsured motorist statute (La.R.S. 22:1406) mandates such coverage, then Traders would be entitled to the credit allowed by the court of appeal.

It is conceded by the parties before us that the terms of the GEICO policy exclude uninsured motorist protection under the facts presented here. However, it is well settled that our uninsured motorist statute embodies public policy and, thus, any clause in a policy in derogation of the mandatory requirements set forth in the statute is invalid insofar as it conflicts with the statute. See Seaton v. Kelly, 339 So.2d 731 (La.1976); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972). Hence, we must determine whether the clause in the GEICO policy which denied uninsured motorist coverage to plaintiffs in the instant case is invalid as being in derogation of the mandatory requirements set forth in our uninsured motorist statute.

Although, as noted by the court of appeal, La.R.S. 22:1406D(2)(b) (as amended by Act 154 of 1974) includes within the definition of an uninsured motor vehicle a statutorily defined under insured motor vehicle, this provision must be read in light of other pertinent provisions of our uninsured motorist statute and cannot be interpreted in isolation. One such provision is La.R.S. 22:1406D(l)(a) which provides in pertinent part:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom . . (emphasis added)

In our view, the intent and effect of this provision is plain. A person insured under the uninsured motorist provision of a particular policy delivered or issued for delivery in this state with respect to a motor vehicle registered or principally garaged in this state must establish that he is legally entitled to recover damages from the owners or operators of uninsured or underin-sured motor vehicles in order to obtain coverage thereunder. As to coverage under the uninsured motorist provisions of a particular policy, the statute thus contemplates two distinct motor vehicles: the motor vehicle with respect to which uninsured motorist coverage is issued and the “uninsured or underinsured” motor vehicle. In addition, as to each policy containing uninsured motorist coverage, the statute distinguishes between the person insured under the policy in question and the owner or operator of the uninsured or underinsured motor vehicle.

Traders contends that the uninsured motorist provision of the GEICO policy (issued with respect to the Ayo vehicle) afforded coverage to plaintiffs’ daughter (a guest passenger in the Ayo vehicle) for damages occasioned by Gayle M. Ayo’s (the host driver’s) negligence. This contention is fallacious in that it necessarily characterizes Gayle M. Ayo (the host driver) as both a “person insured” and “an owner or operator of [an] uninsured or underinsured motor vehicle” under the uninsured motorist coverage of the GEICO policy. Such argument additionally characterizes the Ayo vehicle as both the motor vehicle with respect to which GEICO’s uninsured motorist coverage was issued and the “uninsured or unde-rinsured motor vehicle” contemplated by GEICO’s uninsured motorist coverage. This result ignores implicit distinctions created by La.R.S. 22:1406D(l)(a) between (1) persons insured under a particular policy affording uninsured motorist coverage and owners or operators of uninsured or unde-rinsured motor vehicles and (2) the motor vehicle with respect to which such insurance is issued and the uninsured or underin-sured motor vehicle. It is thus apparent that our uninsured motorist statute does not mandate protection under the host driver’s uninsured motorist coverage when the sole cause of the accident is the negligence of the host driver.

In sum, we hold that the clause in the GEICO policy which purports to deny uninsured motorist coverage to plaintiffs in the instant case is valid as it is not in derogation of the mandatory requirements set forth in our uninsured motorist statute. Hence, the court of appeal erred in allowing Traders a credit for the amount of GEICO’s uninsured motorist coverage which plaintiffs failed to pursue.

As previously noted, plaintiffs sought recovery against Traders under a policy in effect at the time of the accident covering motor vehicles owned by plaintiffs which provided uninsured motorist coverage in the amount of $20,000 per person and $40,000 per accident. Plaintiffs conceded that the actual limits of uninsured motorist protection provided by the Traders policy were $5,000 per person and $10,000 per accident. They contended, however, that, because Traders failed to offer, verbally or in writing, the same limits of uninsured motorist coverage as that provided for liability coverage, uninsured motorist coverage should equal that of the liability limits, i. e., $10,-000 per person and $20,000 per accident. In addition, plaintiffs argued that, as their Traders policy listed two separate automobiles, they were entitled to “stack” the uninsured motorist coverage of the policy, thereby providing uninsured motorist coverage limits of $20,000 per person and $40,000 per accident. Traders disputes these allegations. Moreover, the judgment of the trial court in favor of plaintiffs and against Traders was in the amount of $37,204.65 and in a like amount in favor of Traders on its third party demand against Gayle M. Ayo. Since the court of appeal did not reach these issues based upon its findings as aforesaid, we consider it more appropriate to remand the case to that court for it to determine and decide these issues.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the court of appeal for further proceedings consistent with the views herein expressed.

      . Traders noted that plaintiffs settled with GEI-CO for $39,700; therefore, since GEICO’s liability coverage had been exhausted, plaintiffs had available to them $50,000 primary uninsured motorist coverage under the GEICO policy which was not pursued by plaintiffs. Hence, Traders argued that, before any judgment could be rendered against it, judgment in favor of plaintiffs must be in excess of $89,700. Traders also third partied GEICO alleging that, because of the primary-excess relationship of the coverages provided by GEICO and Traders, GEICO would be liable for the full sum of any judgment rendered in favor of plaintiffs against Traders. At trial, Traders’ third party demand against GEICO for indemnity was dismissed on GEICO’s exception of no cause or right of action (presumably grounded upon the full release obtained by GEICO from plaintiffs).

      . 364 So.2d 158 (La.App. 1st Cir. 1978).

      . 365 So.2d 246 (La. 1978).

      . Part IV of the GEICO insurance policy issued to Samuel L. Ayo provides that GEICO will pay all sums which any insured shall be legally entitled to recover as damages from the owner or operator of an “uninsured automobile.” The policy expressly excludes from the definition of an “uninsured automobile” an “insured automobile” (defined as an automobile described in the schedule as an insured automobile to which the bodily injury liability coverage of the GEI-CO policy applies). Since the Ayo vehicle, in which plaintiffs’. daughter was a guest passenger, was listed as an insured vehicle under the GEICO policy, this vehicle could not also be an “uninsured automobile” for purposes of coverage under the uninsured motorist provisions of the GEICO policy.

      . We note that, under the terms of the statute, a guest passenger is afforded coverage under the provisions of his own uninsured motorist coverage when he sustains injuries occasioned by the host driver’s negligence and the host driver’s liability insurance coverage is less than the amount of damages suffered by those having claims against the host driver’s liability coverage. In such a case, the owner or operator of an underinsured motor vehicle (the host driver) is not a person insured under the guest-passenger’s uninsured motorist coverage. In addition, the motor vehicle with respect to which the uninsured motorist coverage was initially issued (the guest passenger’s motor vehicle) is not the underinsured motor vehicle (the host driver’s motor vehicle). The same result is reached when the guest passenger seeks recovery against the host driver’s uninsured motorist coverage when the accident is caused by the fault of an underinsured third party.


text:
    STATE of Louisiana v. Carol GIST.
    No. 63432.
    Supreme Court of Louisiana.
    April 9, 1979.

      Henry C. Walker, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William E. Til-ley, Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Carol Gist was charged with two counts of distribution of marijuana in separate bills of information (La.R.S. 40:966 A). Defendant pled not guilty to each indictment at the arraignment. After selection of the jury, defendant moved to withdraw her former pleas of not guilty and to enter a plea of guilty to each indictment pursuant to a plea bargain with the state. The trial judge accepted the guilty pleas after determining that they were made voluntarily with understanding of the nature of the charges. The trial judge then ordered that an “informal pre-sentence investigation” be made. At the time of sentencing, defendant filed a motion for a “pre-sentence evi-dentiary hearing” which, was denied by the trial judge. The trial judge sentenced defendant to serve ten years at hard labor on one plea of guilty and five years at hard labor on the other. He expressly directed that the sentences be served consecutively. On appeal, defendant relies on two assignments of error.

Defendant contends the trial judge erred in denying her motion for a pre-sentence evidentiary hearing (Assignment of Error No. 1) and in imposing excessive sentences (Assignment of Error No. 2). Because of our disposition of the case based on the second assignment of error, we need not review the first one.

La.Const. art. 1, § 20 (1974) prohibits the imposition by law of excessive punishment. In State v. Sepulvado, 367 So.2d 762 (La., 1979), we held that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review of his conviction.” With respect to the appropriate standards for that review, we further stated that: “[T]he statutory criteria legislatively provided by La.C.Cr.P. art. 894.1 which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentence alternatives.”

La.Code Crim.P. art. 894.1 sets forth three factors which justify a sentence imposing imprisonment, and eleven other factors which tend to indicate that a suspension of sentence or probation is appropriate. The statute provides that the latter, “while not controlling the discretion of the court, shall be accorded weight” by the trial court in its sentencing decision. Likewise, the statute provides that “the court shall set for the record the considerations taken into account and the factual basis therefor in imposing sentences.”

Construing this article, we have held that, even without formal objection at the time of sentencing, where the trial court imposes a sentence without adequate compliance with the mandatory requirements of this article, this court may vacate a sentence and remand for resentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Cox, 369 So.2d 118 (La.1979); State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978).

In State v. Sepulvado, 367 So.2d 762 (La., 1979), we noted that the trial judge’s reasons in imposing sentence, as required by this statute, “is an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive.”

In State v. Cox, supra, we held that no objection is required as to excessiveness at the time of sentencing to preserve the issue for appellate review when raised by assignment of error to this court.

In the instant case, defendant did not object to the excessiveness of the sentences at the time of sentencing. However, she did assign as error to this court the excessiveness of the sentences. Hence, the issue is properly before us for review.

Defendant alleges that she is a twenty-two year old female and a first offender. Moreover, the distributions involved only two lids of marijuana. In his reasons for imposing the sentences, the trial judge stated that in less than one year defendant had been “fined sixteen times on charges ranging from speeding to resisting an officer.” He further stated that he was aware of evidence implicating her in the offense of enticing minors into prostitution; however, he observed that the charge had been nolle prossed. Without going into the matter further, the trial judge sentenced defendant to serve ten years at hard labor on one plea of guilty (maximum term of imprisonment for the offense charged) and five years at hard labor on the other one, with the sentences to be served consecutively. We note from a “Post Sentence Statement by District Attorney” filed in the record that the offenses charged occurred six days apart and each offense involved a sale by defendant, who worked in a cafe, to undercover agents of a plastic bag containing marijuana for the price of twenty dollars.

Although the trial judge attempted to comply with the mandates of La.Code Crim.P. art. 894.1, the considerations taken into account and the factual basis therefor in imposing the sentences stated by the trial judge for the record do not reflect that he adequately followed the sentencing guidelines that should be considered before imposing a sentence of incarceration. Absent such full compliance with La.Code Crim.P. art. 894.1, we lack appropriate criteria by which to measure whether these sentences are excessive. Under the facts and circumstances of this ease, the trial judge might well have imposed less severe sentences and suspended them in whole or in part, or placed her on probation had he accorded proper weight to the factors enumerated in La.Code Crim.P. art. 894.1. Accordingly, we must vacate defendant’s sentences and remand the case to the trial court with instructions to properly consider the sentencing guidelines in the statute before imposing sentence.

DECREE

For the reasons assigned, the convictions are affirmed but the sentences imposed are vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant in accordance with law.

SUMMERS, C. J., dissents.

      . La.Code Crim.P. art. 894.1 is entitled “Sentence Guidelines; Generally” and provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1)There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (II) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.


text:
    STATE of Louisiana, Appellee. v. Luke Lionel ROMERO, Appellant.
    No. 63433.
    Supreme Court of Louisiana.
    April 9, 1979.

      Thomas L. Mahfouz, James R. McClel-land, Morgan City, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Edward M. Leonard, Jr., Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of manslaughter, La.R.S. 14:31, and sentenced to fourteen years imprisonment at hard labor.

Upon his appeal, he relies upon 13 assignments of error.

Admissibility of Confessions and Statements

The most serious assignments concern the denial of the motion to suppress inculpatory statements on the ground that they were involuntary due to the defendant’s mental deficiencies (Assignments 1, 2, and 4). The medical testimony indicates that the accused had an I.Q. of 69, the intelligence of a boy of nearly eleven, and that due to mental retardation and organic brain damage he was easily susceptible to being influenced by others.

The state must prove beyond a reasonable doubt that a confession is free and voluntary before it may be introduced into evidence. Although the issue is close, we are unable to find that the trial court erred in finding the defendant’s inculpatory statements and confessions to have been made freely and voluntarily and without coercion.

The medical testimony indicates that the accused could understand his rights to remain silent, as advised by the officers. The officers themselves testified that the accused seemed to understand his rights and that the accused appeared to be normal and not mentally impaired in any way. The officers denied his testimony that they had promised him he would be released if he made a statement (or beaten if he would not), and we find no error in the trial court’s evaluation of the officers’ testimony as truthful.

The other assignments do not require extended comment:

Assignments 3 and 9: The defendant objected to introduction of his confessions before proof of the death of the victim and of the commission of a crime.

Although this may be the better practice, cf. State v. Brown, 236 La. 562, 108 So.2d 233 (1959), the reason for the rule as stated in Brown is that the crime (corpus delicti) must be proved by evidence independent of the accused’s confession — that the uncorroborated confession of the accused will not of itself sustain a conviction. Therefore, the proof of the corpus delicti is not required as a prior condition for admission into evidence of a confession, so long as proof of the corpus delicti is subsequently established during trial (as here). State v. Mullins, 353 So.2d 243, 246 (La.1977).

Assignments 4, 7, 13, and 14: The state pleaded surprise and successfully impeached the testimony of a state witness by proof of her prior contradictory statement on a material issue concerning motive. La.R.S. 15:487,488. We do not find the defendant’s arguments persuasive that insufficient predicate of surprise was made by the state, or that the testimony was not upon a material matter.

Assignment 6: The trial court cautioned the jury, as requested, that the inconsistent prior testimony was admissible only on the issue of the credibility of the witness and not as substantive evidence of its content or of the defendant’s guilt. The defendant now complains that the trial court’s admonition insufficiently complied with this requirement of our procedure. See State v. Ray, 259 La. 105, 249 So.2d 540 (1971). While we do not believe the contention is meritorious, nevertheless no objection was made at the time to the admonition as insufficient; therefore, such contention is not reviewable on appeal. La.C. Cr.P. art. 841.

Assignment 8: The trial court did not abuse its discretion in allowing re-direct examination of a state witness on matters not covered in cross-examination. La.R.S. 15:281.

Assignment 12: The defendant contends that there is a total lack of evidence that the accused himself did a culpable act or omission in the killing of the victim, La.R.S. 14:29, so as to be guilty of manslaughter.

The state’s theory is that the accused was guilty of manslaughter, as an unintentional killing which resulted when the accused was engaged in perpetration of an offense, La. R.S. 14:31(2)(a), namely a simple battery (the intentional use of force or violence upon a victim, without a dangerous weapon) La.R.S. 14:33, 35. The victim was beaten and thrown into a borrow pit, where he drowned.

The evidence shows that a co-defendant Gaskins (who pleaded guilty), angered by an exaggerated report of his girlfriend that the victim had severely beaten her, found the victim passed out. With the aid of the defendant Romero, he took the victim to the levee. Gaskins beat the victim most viciously and threw him into a borrow pit, where he drowned. The defendant assisted Gaskins in the episode, and be himself contributed in a minor way to the beating.

The evidence before the jury permitted it reasonably to find the accused guilty as principal, La.R.S. 14:24, in the beating of the victim and the subsequent placing of him in the cold December waters of the borrow pit, as a result of which the victim died.

Assignment 15: Despite the jury’s recommendation of leniency for this retarded and easily led first offender otherwise without criminal record, the district court sentenced him to fourteen years imprisonment at hard labor.

In sentencing the accused, the trial court stated its reasons for such sentence as required by La.C.Cr.P. art. 894.1. These included the seriousness of the offense, 894.-1A(3), and the serious harm caused and intended by the defendant’s conduct and the lack of provocation or substantial grounds to excuse it, 894.1B(l)-(4). The trial court also gave weight to the premeditated return by the accused to the scene of the victim’s beating, in order to administer a second beating (followed by the throwing of the victim into the water).

Almost all the other factors suggested by 894.1 suggest a lighter sentence. Nevertheless, despite some reservations, we are unable to find a clear abuse of the trial court’s discretion in the sentencing so as to justify a remand for its reconsideration.

Decree

Finding no merit to the assignments of error, we affirm the conviction and sentence.

AFFIRMED.

SUMMERS, C. J., concurs.

      . The co-defendant Gaskins, the dominating leader and principal participant in the beating and drowning, had pleaded guilty and was likewise sentenced to fourteen years, the same as the mentally deficient and easily led accused.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Warren WALKER.
    No. 63437.
    Supreme Court of Louisiana.
    April 9, 1979.
    Frank J. Gremillion, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Warren Walker was charged by bill of information with possession of phencycli-dine and possession of phenmetrazine, violations of R.S. 40:968C. The trial judge found him guilty of possession of phencycli-dine and placed him on supervised probation for one year after suspending a sentence of three years. We find merit in the assignments of error raised by the defense and therefore reverse the conviction and sentence.

On August 26,1977 a search warrant was executed at 2023 Plank Road in Baton Rouge, the residence of Jessica Beals. The police discovered Jessica Beals in the front room of the residence and saw Warren Walker, clad in denim cutoffs, emerge from a rear bedroom which had been converted to a lounge area. A search of Walker’s pockets revealed a matchbox containing three pink pills later identified as phenme-trazine. The police also discovered seven tinfoil packets containing phéncyclidine inside a Dunhill cigarette package hidden in the freezer compartment of the refrigerator. A search of the rear bedroom unearthed a second Dunhill package which contained one cigarette partially composed of phencyclidine. On the ground beneath the bedroom window the police found two white phenmetrazine tablets next to a drawer which had apparently been removed from a kitchen cabinet and thrown from the window. Beals and Walker were subsequently charged with possession of the controlled substances.

Beals was tried alone on April 7, 1978. At her trial, Beals' attorney moved for and obtained a judgment of acquittal. Walker then retained the same counsel, who thereafter filed a motion to suppress the phen-metrazine tablets taken from Walker’s pocket. At the end of argument on the motion, the state and defense stipulated that the record in Beals’ trial would serve for Walker’s trial as well. On May 30,1978 the trial judge granted the motion to suppress the phenmetrazine seized from Walker’s person, but found the defendant guilty of possession of phencyclidine.

The defense contends that there was no evidence to convict Walker and assigns error to the court’s denial of the motion for acquittal and to its finding the defendant guilty. The state initially argues that the defense is barred from raising these assignments because neither a motion for judgment of acquittal nor a motion for a new trial was filed, C.Cr.P. 778, 851; State v. Cobbs, 350 So.2d 168 (La.1977); State v. Blackstone, 347 So.2d 193 (La.1977). However, in light of the agreement to submit the case on the record from Ms. Beals’ trial, where a motion for judgment of acquittal was made, the question is properly presented for review by this court.

Possession of a controlled dangerous substance is an essential element of the conduct proscribed by R.S. 40:968C. State v. Cann, 319 So.2d 396 (La.1975). The prosecution is not required to prove actual possession, but needs only to show that the defendant exercised dominion or control over the illegal substance. State v. Edwards, 354 So.2d 1322 (La.1978); State v. Roach, 322 So.2d 222 (La.1975). However, the mere presence of someone in the area where the controlled dangerous substance is found, or mere association with the person found to be in possession of the contraband, is insufficient to constitute constructive possession. State v. Alford, 323 So.2d 788 (La.1975); State v. Cann, supra.

Here the state has presented evidence that the defendant was present in the residence (where Jessica Beals lived) at the time the drugs were discovered and that he was closer than Jessica Beals was to some of the drugs at the time the police entered the residence. On the other hand, once the suppressed evidence is discounted, the prosecution has presented no evidence to show that Walker knew or had reason to know that the drugs were present on the premises. Whether Walker was often present at the Plank Road residence and whether he had been there for an extended period of time on the afternoon in question is a matter of speculation. There was no evidence that the residence was frequented by drug users or that anyone other than Jessica Beals had access to the residence and its contents. Testimony of the searching officers indicates that no drugs were in open view in the apartment. Only the phenme-trazine tablets, which were subsequently suppressed, were found on the defendant’s person. The evidence fails to prove that Walker exercised control over any of the drugs seized except for the tablets taken from his pocket.

Since there is no evidence that the defendant either had or shared possession, control or dominion of the controlled dangerous substance, we must reverse the defendant’s conviction and sentence.

For the reasons assigned, the conviction and sentence of Warren Walker are reversed, and judgment of acquittal is entered. State v. Liggett, 363 So.2d 1184 (La.1978); see Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

      . The trial judge at one point stated that the defendant was guilty of possessing all the controlled dangerous substances at the residence, but later stated: “I found him guilty of the ones that were found outside the house in the drawer which I think was the phencyclidine, and the phenmetrazine I believe was on his person. I may have them backwards. But the ones on his person I’ve excluded as admissible into evidence. You can probably look in your file, and I can read the transcript. Mr. Gremillion, which of the two drugs were the ones in the matchbox and which were the ones outside the house? The phenmetrazine? I remember the phencyclidine was in the matchbox.” The prosecution thereafter stated: “The phencycli-dine is the ruling today, the guilty ruling.” However, the record reveals that the tablets found beside the drawer were phenmetrazine and it is therefore clear that Walker was convicted of possessing phenmetrazine and not phencyclidine. This confusion resulted in the state’s concentrating its arguments on the phencyclidine discovered in the rear bedroom, while the defense brief discusses both the phen-cyclidine found in the bedroom and that found in the refrigerator. However, we note these errors only in passing since the rationale of the decision applies with equal force to all the substances found in the residence other than the phenmetrazine found in the defendant’s pocket.