author: MARCUS, Justice.

text:
    STATE of Louisiana v. Michael WILLIAMS.
    No. 58679.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.

      George L. Gillespie, Jr., Lyman L. Jones, Jr., Gillespie & Jones, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John J. Mamoul-ides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gretna, for plaintiff-appellee.
   MARCUS, Justice.

Michael Williams was indicted by the grand jury for the Parish of Jefferson for having committed first degree murder in violation of La.R.S. 14:30. Defendant’s first trial was declared a mistrial because the jury was unable to reach a unanimous verdict. After a second trial by jury, defendant was found guilty as charged and sentenced to death. On appeal, defendant relies on seventeen assignments of error for reversal of his conviction and sentence.

During an armed robbery committed at the Kart-N-Karry convenience store in Kenner, Louisiana on December 6, 1974, James Ferronte, the manager of the store, and a customer, John L. Jordan, Jr., were murdered. Michael Williams was indicted for the first degree murder of John L. Jordan, Jr.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred when he excused for cause four prospective jurors challenged by the state based on their sentiments regarding the death penalty. He argues that the manner in which the trial judge conducted the voir dire examination was improperly suggestive and that he has been denied a jury representative of a fair cross-section of the community.

This assignment of error is not properly before us for review. The record reveals that defendant made no objection during voir dire examination either to the manner of questioning prospective jurors or to the excusal of the four jurors challenged for their views with respect to the death penalty. La.Code Crim.P. art. 841 provides, and this court has consistently held, that in the absence of a contemporaneous objection, an alleged irregularity or error cannot be availed of after verdict. State v. Finley, Bindom & Scott, No. 58,343, 341 So.2d 381 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976).

Nevertheless, we have reviewed the record of voir dire examination and are satisfied that defendant’s contentions are without merit. The questions propounded by the trial judge were designed to ascertain whether or not the prospective jurors could return a verdict carrying the death penalty if such verdict were supported by the evidence. It was entirely proper for the trial judge to examine the jurors on this matter and to excuse those who indicated that they would not return a verdict of guilty under any circumstances regardless of the proof at trial. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); La.Code Crim.P. art. 798; State v. Roberts, 331 So.2d 11 (La. 1976); State v. Brown, 302 So.2d 290 (La. 1974). Moreover, we find no indication that the trial judge conducted the voir dire in a manner calculated to cause veniremen harboring merely conscientious scruples to excuse themselves.

Additionally, we note that in accordance with the United States Supreme Court decision in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), defendant in this case is entitled to be re-sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for twenty years, which sentence represents the most severe valid penalty established by the legislature for criminal homicide at the time of this offense. State v. Jenkins, 340 So.2d 157 (La.1976); State v. Clark, 340 So.2d 208 (La.1976).

We have uniformly held that a defendant insulated from the death penalty has no valid Witherspoon complaint. State v. Nicolaus, 340 So.2d 296 (La.1976); State v. Hunter, 340 So.2d 226 (La.1976); State v. Miles, 339 So.2d 735 (La.1976); State v. Hester, 309 So.2d 321 (La.1975).

Assignment of Error No. 1 lacks merit.

ASSIGNMENTS OF ERROR NOS. 2, 10 AND 13

Defendant assigns as error certain objections and remarks made by the district attorney during the course of the trial. He complains that frequent objections by the prosecution improperly circumscribed his opening statement. Defendant further contends that the district attorney personally vouched for the credibility of a state witness during an objection to defense cross-examination and that he improperly appealed to the prejudice of the jury during closing argument.

The record reveals that defendant acquiesced in the' court’s rulings sustaining state objections made during his opening statement to the jury. Moreover, defendant did not make known to the court at the time his objections to these rulings and the grounds therefor as required by La.Code Crim.P. art. 841. The record further indicates, and defendant acknowledges in brief, that no objections were made to the alleged prejudicial remarks made by the district attorney during defense counsel’s cross-examination of a state witness and during the state’s closing argument. It is well settled that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.Code Crim.P. art. 841; State v. Finley, Bindom & Scott, No. 58,343, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975). More particularly, we have held that, in-order for alleged errors resulting from prejudicial remarks of a prosecutor made during trial or in closing argument to be ap-pealable, a timely objection must be raised when the alleged prejudicial comments are made. State v. Thomas, 325 So.2d 593 (La.1976); State v. Jones, 315 So.2d 650 (La. 1975); State v. Batiste, 318 So.2d 27 (La. 1975). Additionally, we note that the type of irregularities alleged herein are not discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920(2); State v. Batiste, supra; see State v. Refuge, 300 So.2d 489 (La.1974). Accordingly, these alleged errors are not properly before us for review.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in admitting into evidence over defense objection certain morgue photographs and identification tags. At trial, defendant argued as a basis for his objection that the state had not laid a proper foundation for introduction of this evidence in that no testimony had been adduced identifying the subjects depicted in the morgue photographs.

For admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is connected with the case. State v. Brown, 326 So.2d 839 (La.1975). Specifically, we have held that photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and when they tend to shed light upon the matter before the court. State v. Freetime, 334 So.2d 207 (La.1976).

In the instant case, police technician Roderick Ripp testified that he attended the autopsy of the murder victims and photographed their bodies for identification purposes at its conclusion. He also stated that the bodies bore tags identifying the victims as James Ferrante and John Jordan. Dr. Charles Wascom had previously testified concerning the autopsy and identified the victims by name without defense objection.

Sufficiency of identification of a photograph for purpose of admissibility into evidence rests largely within the discretion of the trial judge. State v. Freetime, su pra. We are satisfied that, when the photographs were introduced into evidence, an adequate foundation had been laid to support the conclusion that it was more probable than not that the bodies shown in the morgue photographs were the bodies of the murder victims. Furthermore, subsequent state witnesses did, in fact, identify the bodies in the photographs. Hence, any arguable deficiency in the state’s foundation was cured by later testimony. Accordingly, we find no error in the ruling of the trial judge allowing introduction of the demonstrative evidence.

Defendant argues for the first time in brief that the photographs should not have been admitted because of their prejudicial and inflammatory effect on the jury. Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless the defendant has made known to the court his objection and the grounds therefor. A new basis for an objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975). In any event, it is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Cooper, 334 So.2d 211 (La.1976); State v. Smith, 327 So.2d 355 (La.1975). Photographs of the body of a deceased victim have generally been held relevant to prove the corpus de-licti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity and number of wounds; and to establish the identity of the victim. State v. Cooper, supra; State v. Beach, 320 So.2d 142 (La.1975).

After examining the photographs in question, we do not consider that they are gruesome. Moreover, they were relevant to prove the identity of the murder victims and to corroborate the testimony concerning the manner in which the victims were killed. Since the probative value of the photographs outweighs any possible prejudicial effect, the trial judge did not err in admitting them in evidence.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in permitting the state to use the testimony of Leonard Johnson against him at trial. Johnson had been separately indicted for the same murder allegedly committed by defendant but was not being jointly tried with him. Defendant complains that Johnson’s testimony was given in exchange for an agreement by the state to dismiss his indictment and argues that the testimony of an accomplice is subject to suspicion.

The record reveals that no objection was made by defendant to Johnson’s testimony at trial. We have consistently held that an objection not contemporaneously raised in the lower court or ruled on by the trial judge cannot be availed of on appeal. La. Code Crim.P. art. 841; State v. Burgy, 320 So.2d 175 (La.1975).

In any event, this court has held that, although the testimony of an accomplice should be received and acted on with caution, such testimony constitutes competent evidence. State v. Lewis, 236 La. 473, 108 So.2d 93 (1959). Therefore, defendant’s argument addresses itself to the weight of Johnson’s testimony and not to its admissibility. The weight accorded to admissible evidence is a matter for the jury, not the court.

Assignment of Error No. 5 is without merit.

ASSIGNMENTS OF ERROR NOS. 6, 9 AND 11

In these assignments of error, defendant complains that the trial judge improperly admitted into evidence certain hearsay statements of Detective Frank Mistretta and Sergeant August Claverie.

Assigned Error No. 6 arose in the following context. During direct examination, Detective Frank Mistretta was questioned concerning a photographic showup exhibited to Leonard Johnson. The officer testified without objection that Johnson had earlier described and named Michael Williams as a participant in the murder under investigation. He further testified that he presented Johnson with four photographs in an entirely proper and non-suggestive identification procedure during which Johnson identified the defendant as the perpetrator of the crime. Thereafter followed a number of questions and responses relative to the photographs. Defense counsel made no objection until Officer Mistretta responded that he had caused Leonard Johnson to mark the photograph selected in the show-up. At this point, the following objection was made:

Leonard Johnson was on the stand and he had an opportunity at that time to ask him that directly and it is simply hearsay when he says that Leonard Johnson identified these pictures.

The objection was overruled whereupon the prosecutor proceeded to have Officer Mis-tretta identify the photographs as those used in the showup procedure, after which he formally introduced them into evidence. Defendant again objected, commenting that a proper predicate had not been laid since Leonard Johnson had previously been on the stand and available to confirm that the photographs introduced were those used in the identification procedure.

We are uncertain as to the basis of defendant’s first objection. If defendant’s objection was addressed to the manner in which the state was laying a foundation for introduction of the photographs, we are satisfied that the objection lacked merit. The state’s predicate sufficiently established that it was more probable than not that the photographs were those used at the showup procedure and that they were, therefore, connected with the case. State v. Brown, 326 So.2d 839 (La.1975). On the other hand, if defendant was objecting to the fact that Officer Mistretta had testified to defendant’s identification by Leonard Johnson, a different legal issue is presented.

Hearsay evidence is inadmissible except under one of the statutory or well-recognized exceptions. La.R.S. 15:434. We have held that the testimony of a police officer relating what a third party has done or said at a photographic showup constitutes inadmissible hearsay when offered for truth of the matter asserted. State v. Ford, 336 So.2d 817 (La.1976). In State v. Jacobs, 344 So.2d 659 (La.1976), we reversed a conviction where a police officer’s hearsay identification testimony was offered as the only evidence that a pretrial identification of the defendant had been made. There, the witness was not questioned at all concerning the pretrial identification procedure nor was she able to positively identify the defendant at trial. We have also made it clear, however, that in some circumstances the admission of hearsay identification testimony does not constitute reversible error. State v. Ford, supra. In Ford, we declined to reverse a conviction where the identification testimony was merely cumulative and corroborative of the witness’ prior testimony that he had identified defendant as the perpetrator.

In the instant case, Leonard Johnson testified that he had viewed a photographic showup. Although he was not questioned further concerning an identification made at that time, the witness positively identified defendant in court as the individual who murdered James Ferronte and John Jordan during a robbery of the Kart-N-Karry convenience store. Additionally, defendant was identified as one of several men in the store shortly before the commission of the crime by state witness Donald Mumphrey. Hence, Officer Mistretta’s hearsay testimony did not constitute the only evidence identifying defendant as the perpetrator of the offense. We are of the opinion that, under the particular facts and circumstances of this case, the admission of Officer Mistretta’s testimony does not warrant reversal of defendant’s conviction.

In Assignments of Error Nos. 9 and 11, defendant contends the trial judge erred in allowing Officer Mistretta and Sergeant Claverie to relate the contents of Leonard Johnson’s inculpatory statement wherein he described the manner in which defendant committed the crime charged in this case.

The record reveals that no objection was made to the testimony given by Sergeant Claverie. In the absence of a contemporaneous objection, an alleged error or irregularity in the proceedings cannot be availed of after verdict. La.Code Crim.P. art. 841; State v. Finley, Bindom & Scott, No. 58,343, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975). The record further demonstrates that the disputed testimony of Officer Mistretta was elicited on redirect examination only after defendant himself had fully explored this area by way of hearsay testimony during cross-examination of the same witness. Hence, the testimony was merely cumulative in nature. Moreover, we have recently held that, when a defendant adduces such evidence on cross-examination, the state has a right to follow on redirect. La.R.S. 15:281; State v. Overton, 337 So.2d 1201 (La.1976). The trial judge correctly ruled that defense counsel had opened the door to this area on cross-examination and that it was a proper subject for redirect examination.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

In these assignments of error, defendant complains of the introduction in evidence of certain “lineup” or “mug shot” pictures used in two separate photographic showups.

At trial defendant objected to the introduction of these photographs on the ground that an insufficient predicate had been laid for their admission in evidence. It is well established that a sufficient foundation is laid for the admission of demonstrative evidence where the evidence establishes that it is more probable than not that the object is connected with the case. State v. Brown, 326 So.2d 839 (La.1975).

Officer Frank Mistretta identified one set of photographs which he had exhibited to Leonard Johnson and another set which he had shown to Donald Mumphrey at separate pretrial showups. Clearly, his testimony identifying these photographs was sufficient to support a conclusion that it was more probable than not that they were connected with the case. Hence, the trial judge did not err in his ruling that an adequate predicate had been laid for introduction of the photographs in evidence.

For the first time in brief defendant contends that the display of “mug shots” to the jury was prejudicial tending to associate defendant with criminal activity. He also argues in brief that differences in the appearance of the photographs shown to Donald Mumphrey were imper-missibly suggestive thereby tainting his identification of defendant. Inasmuch as a new basis for an objection cannot be raised for the first time on appeal, these arguments are not properly presented for our review. La.Code Crim.P. art. 841; State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975). In any event, we have reviewed defendant’s contentions and find them to be without merit. The disputed photographs were relevant and properly accepted in evidence at trial to demonstrate the fairness of the photographic identification procedures. State v. Holmes, 305 So.2d 409 (La.1974); State v. Valentine, 262 La. 571, 263 So.2d 893 (1972). In respect to the showup procedure itself, we have examined the photographs exhibited to Donald Mumphrey and do not find that they were so impermissibly suggestive as to cause a mistaken identification. We do not ascribe much significance to the slight color variation in the backgrounds of the pictures of Michael Williams and Leonard Johnson. In any event, it is well settled that, even if the out-of-court identification was tainted, if the in-court identification had a source independent of the out-of-court identification, the in-court identification does not violate defendant’s due process rights. State v. Peevy, 321 So.2d 324 (La.1975); State v. Bland, 310 So.2d 622 (La.1975); State v. Moseley, 284 So.2d 749 (La.1978).

In the instant case, Donald Mum-phrey testified that as he was leaving Kart-N-Karry convenience store where he had stopped to make a few purchases and converse with the manager on his way home from work, he observed defendant and two other subjects as they entered the store. He also noted at the time that after entering, they split up; one going to the back, one to the center, and the other to the front of the store. This incident occurred shortly before the robbery-murders at this location. Although Mr. Mumphrey did not identify defendant at the preliminary hearing, he explained that this was the result of a misunderstanding. At trial, the witness positively identified defendant as one of the persons whom he had seen enter the store that night. In view of the totality of the circumstances, we are satisfied that Mr. Mumphrey’s in-court identification of defendant was based independently on the witness’ observations before the offense rather than upon any possible defect in the photographic showup. Therefore, since the in-court identification had a source independent of the out-of-court identification, the in-court identification did not violate defendant’s due process rights.

Assignments of Error Nos. 7 and 8 are without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends the trial judge erred in denying his written motion requesting that ballistics tests be performed on a certain .22 caliber revolver, nine unspent .22 caliber bullets, and shell fragments removed from the bodies of the deceased victims. This motion was filed after defendant’s conviction in an effort to secure new evidence to support defendant’s related motion for a new trial.

On the last day of trial, an individual named Andrew Collins was called to testify for the defense. Collins had been incarcerated in the same cell block with defendant at parish prison pending trial on at least four separate charges for armed robbery. The record indicates that a few days prior to his appearance as a witness in this case he had been convicted of another armed robbery and was waiting to be sentenced. Collins testified at trial that he had committed the murders in the instant case and that the defendant Michael Williams was not involved. When Collins was apprehended on a different charge, he had in his possession a .22 caliber pistol. According to Sergeant August Claverie, a .22 caliber pistol and a .38 caliber pistol were stolen from the Kart-N-Karry store during the robbery-murders involved in this case.

Defendant argues in brief that the trial judge abused his discretion in refusing to order a ballistics test run on Collins’ gun. He contends that the test was necessary to determine whether the shell fragments found in the bodies of the deceased victims may have come from Collins’ gun and whether Collins’ weapon was in fact one of those taken during the robbery in the instant case.

In Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975), the Court of Appeal for the Fifth Circuit reversed a conviction upheld by this court, granted habeas corpus relief, and ruled that the denial of defendant’s request for a pretrial examination of the bullet in that case was a denial of due process. The court held that defendant’s request for an inspection of the murder weapon and bullet by his own ballistics expert was not frivolous since one of the most damaging pieces of evidence against him was the identification of the murder bullet as having been fired by a pistol traced to his possession. Moreover, since seventy-five percent of this slug had been destroyed, identification had been made on the remaining twenty-five percent. The court held that this fact alone raised the possibility that had Barnard been assisted by a ballistics expert of his own, he might have been able to shake the identification testimony of the state’s experts. We have recognized, however, that the decision in Barnard v. Henderson is limited to the facts of that case and is not binding on this court. We have continued to uphold rulings refusing ballistics examinations in cases distinguishable from Barnard, where defendant has made no effort to have the evidence examined at trial or any recess thereof and where the ballistics evidence is not crucial to the conviction. State v. Brumfield, 329 So.2d 181 (La.1976); State v. White, 321 So.2d 491 (La.1975).

In the instant case, defendant’s conviction was not based on ballistics evidence, but rather on the eyewitness testimony of Leonard Johnson and the identification of the defendant by Donald Mumphrey. Moreover, the per curiam of the trial judge reveals that at defendant’s first trial which ended in a mistrial, ballistics testimony was introduced which contradicted the proof defendant hoped to obtain pursuant to his post-trial discovery motion. The record of that testimony indicates that one of the victims was killed by a bullet fired from a .38 caliber pistol. The shell fragments removed from the body of the other victim were too badly damaged for identification. Hence, further testing could not have produced results helpful to defendant’s case. Additionally, we note that Andrew Collins indicated in his testimony at trial that he had his own weapon with him when he entered the convenience store and that he had used it in the commission of the crime. Collins did not admit to having stolen the two pistols found missing from' the scene of the crime. Collins further testified that he threw the weapon used in the instant murders into the river. According to defendant’s own witness, therefore, the .22 caliber pistol found in Collins’ possession was not the murder weapon, nor was it taken during the Kart-N-Karry robbery-murders.

In view of the foregoing, we find no abuse of discretion in the trial judge’s denial of defendant’s motion requesting the performance of ballistics tests.

Assignment of Error No. 14 lacks merit.

ASSIGNMENT OP ERROR NO. 15

Defendant contends the trial judge erred in denying his motion for a new trial.

Defendant first urges that the verdict is contrary to the law and evidence. It is well settled that such an allegation presents nothing for this court’s appellate review. State v. Jack, 332 So.2d 464 (La.1976); State v. Bartley, 329 So.2d 431 (La.1976).

The second ground for defendant’s motion alleges that three rulings of the trial judge pursuant to defense objections demonstrate prejudicial error. One of the rulings complained of deals with pretrial identification procedures more fully discussed in Assignments of Error Nos. 7 and 8. Insofar as defendant’s contentions urge matters disposed of therein, nothing further is presented for our review. Defendant’s argument regarding absence of counsel at the photographic showup is similarly without merit. There is no right to have counsel present during such identification procedures. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). Defendant also complains of the trial judge’s denial of his motion for a directed verdict, wherein he attacked the sufficiency of the state’s evidence. We have uniformly held that this court is without jurisdiction to pass on the sufficiency of the evidence in a criminal case. State v. Gordon, 336 So.2d 793 (La.1976). This court can find error in the trial judge’s denial of a motion for a directed verdict only when there is no evidence oí the crime or an essential element thereof. State v. Foret, 315 So.2d 278 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973). The testimony of Leonard Johnson, an eyewitness to the crime, obviously presented some evidence of the defendant’s guilt. Defendant finally argues in this part of his motion that the trial judge improperly overruled his objections to leading questions propounded by the district attorney to state witness Leonard Johnson. After reviewing the record, we are satisfied that the questions asked of the witness were direct, non-suggestive and not leading. Accordingly, the trial judge correctly overruled defendant’s objections.

Defendant’s third basis for his new trial motion is the discovery of alleged new and material evidence. Defendant contends that ballistics tests of a .22 caliber pistol would corroborate Collins’ testimony that he committed the murders in the instant case. We have already determined that the trial judge correctly denied defendant’s post-trial discovery motion (Assignment of Error No. 14). The other alleged newly discovered evidence consisted of testimony and psychiatric records which purportedly would lend credence to Collins’ exculpatory testimony and reflect adversely on the competence of a state witness. This court has consistently held that the trial judge is accorded considerable discretion in evaluating the impact of newly discovered evidence on the verdict, and his ruling will be disturbed on appeal only when there is a clear showing of abuse of discretion. State v. Brown, 338 So.2d 686 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976). In considering a motion for new trial based on newly discovered evidence, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Brown, supra; State v. Jackson, 253 La. 205, 217 So.2d 372 (1968). We are satisfied that the newly discovered evidence presented in defendant’s motion does not meet that test.

In defendant’s fourth ground for his motion, he claims that since the verdict, he has discovered prejudicial errors or defects in the proceedings that, notwithstanding the exercise of reasonable diligence, were not discovered by him before the verdict. Defendant complains that Leonard Johnson was allowed to testify without being informed of his constitutional rights against self-incrimination and without presence of his attorney at the trial. He also repeats his complaints concerning the admission into evidence of certain photographs and related in-court identification testimony. These alleged errors were readily observable at trial. Since they were discoverable before verdict with the exercise of reasonable diligence, they do not constitute a proper ground for a new trial motion. Defendant additionally contends that the prosecutor created the impression that no immunity had been offered to Leonard Johnson, whereas Leonard Johnson’s testimony was actually given in exchange for the state’s dismissal of the murder indictment filed against him. He argues that had this evidence been presented to the jury, it would have affected Johnson’s credibility. Our reading of the record does not reveal that the prosecutor created any impression one way or the other concerning a grant of immunity. Moreover, no evidence regarding immunity was ever adduced. Aside from defendant’s unsupported allegations in his motion for a new trial, it was never demonstrated either at trial or at the hearing on defendant’s motion that Leonard Johnson was promised anything in exchange for his testimony'.at trial. In view of the showing made, we are unable to say that the trial judge abused his discretion in denying a new trial based on this unsubstantiated contention.

The last ground for granting a new trial is that the ends of justice would be served thereby. La.Code Crim.P. art. 851(2). This is a ground upon which the trial judge may grant a new trial. It presents nothing for this court’s appellate review. State v. D’Ingianni, 217 La. 945, 47 So.2d 731 (1950).

In view of the foregoing, we are unable to say the trial judge erred in denying defendant’s motion for a new trial. Assignment of Error No. 15 is without merit.

ASSIGNMENTS OF ERROR NOS. 16 AND 17

After his conviction but before sentencing, defendant filed a motion in arrest of judgment challenging the constitutionality of the imposition of the death penalty. Inasmuch as the decision in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) had not yet become final, the trial judge denied defendant’s motion and sentenced him to death by electrocution. Defendant assigns as error the ruling of the trial judge and the imposition of the death penalty.

In Roberts v. Louisiana, the United States Supreme Court held unconstitutional Louisiana’s mandatory death sentence for first degree murder. That decision has now become final and in accordance with it, this court has vacated sentences in first degree murder cases but, when no other reversible error has been found, we have remanded the cases to the trial court for resentencing of defendants to the most severe valid penalty established by the legislature for criminal homicide at the time of the offense. State v. Jenkins, 340 So.2d 157 (La.1976); State v. Clark, 340 So.2d 208 (La.1976). In the instant case, the crime was committed on December 6, 1974. The most severe valid penalty for criminal homicide applicable on that date was the penalty for second degree murder, life imprisonment at hard labor without eligibility for parole, probation or suspension of sentence for twenty years. Accordingly, even though we affirm the conviction, we vacate and set aside the imposition of the death penalty and remand the case to the trial court for resentencing. This will dispose of the contention made under these assignments of error.

DECREE

. For the reasons assigned, defendant’s conviction is affirmed, but the death sentence imposed on him is annulled and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.

DIXON, J., concurs.

CALOGERO, J., concurs, not being in agreement with the treatment afforded assignments 6, 9 & 11.

DENNIS, J., concurs in the result.

      . Assignments of Error Nos. 4 and 12 have been specifically abandoned by defendant in brief to this court.

      . We note ex proprio motu under the authority granted by La.Code Crim.P. art. 920(2) that twenty-four hours did not elapse between the time defendant’s motion was overruled and the imposition of sentence. The minutes do not indicate that defendant waived the twenty-four-hour delay mandated by La.Code Crim.P. art. 873. Therefore, the sentence imposed on defendant was illegal. This error will be cured, however, when defendant is resentenced pursuant to our disposition of these assignments of error.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Sydney "Bo” PETERSON.
    No. 58691.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.

    William H. Baker, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., Paul A. Newell, Asst. Dist. Atty., for plaintiff-appellant.

       Calogero, J., was of the opinion that a rehearing should be granted.

   DIXON, Justice.

The trial judge sustained a motion to quash a bill of information charging that defendant, Sydney “Bo” Peterson, “being over the age of 17, did sell an alcoholic beverage of either high or low alcoholic content (Miller’s Lite Beer) to a person under the age of 18, in violation of RS 14:91, . ” On the application of the State, we granted writs.

The trial judge found the statute (R.S. 14:91) vague and overbroad, because it did not contain a definition of “alcoholic beverage of either high or low content.”

In 1972 R.S. 14:91 was amended to substitute “alcoholic beverage either of high or low alcoholic content” for “intoxicating or spirituous liquors.” As amended, R.S. 14:91 conformed with R.S. 14:91.1, 91.2 and 91.3, which prohibit purchases of “alcoholic beverage either of high or low alcoholic content” by or for persons under 18. R.S. 14:91.4 referred retail dealers of the same beverages to the responsibilities imposed upon them by Title 26 of the Revised Statutes. All four sections were enacted by Act 315 of 1958.

This act followed the 1956 decision of this court in State v. Viator, 229 La. 882, 87 So.2d 115, where it was held that beer was not an “intoxicating or spirituous liquor” under R.S. 14:91. The court held that beer, a malt beverage, was not a “liquor,” which is defined in R.S. 26:2 as a distilled or rectified alcoholic beverage. (See also State v. Guimbellot, 232 La. 1043, 95 So.2d 650 (1957); 18 La.L.Rev. 123 (1957)).

It is clear that R.S. 14:91.1-4 relate to the definitions of alcoholic beverages in Title 26 of the Revised Statutes, and equally clear that the 1972 amendment intended that “alcoholic beverages either of high or low alcoholic content” mean the same in Title 14 as in Title 26 of the Revised Statutes.

“For purposes of this Chapter, the following terms have the respective meanings ascribed to them in this Section, unless a different meaning clearly appears from the context:
“(1) ‘Alcoholic beverages’ means any fluid or solid capable of being converted into fluid, suitable for human consumption and having an alcoholic content of more than six per cent by volume, including alcohol.
“(2) ‘Liquor’ means any distilled or rectified alcoholic beverage.
“ . . . ” R.S. 26:2(1) and (2).
“The following terms have the respective meanings ascribed to them, except in those instances where the context indicates a different meaning:
“(1) ‘Alcoholic beverages’ means any fluid or any solid capable of being converted into fluid, suitable for human consumption, and containing more than one-half of one per cent alcohol by volume, including malt, vinous, spiritous, alcoholic or intoxicating liquors, beer, porter, ale, stout fruit juices, cider, or wine.
“(a) ‘Beverages of low alcoholic content’ means alcoholic beverages containing not more than six per cent alcohol by volume. “(b) ‘Beverages of high alcoholic content’ means alcoholic beverages containing more than six per cent alcohol by volume. “(2) ‘Liquors’ means all distilled or rectified alcoholic spirits, brandy, whiskey, rum, gin, and all similar distilled alcoholic beverages, including all dilutions and mixtures of one or more of the foregoing, such as liquors, cordials, and similar compounds.
“(5) ‘Malt beverages’ means beverages obtained by alcoholic fermentation of an infusion, or concoction, of barley or other grain, malt, and hops in water, including among other things, ale, beer, stout, porter, and the like. Malt beverages are exclusive of all ‘liquors’ whether they be defined as intoxicating or spiritous liquors, or as alcoholic, vinous, or malt liquors, or however otherwise defined as liquors.
“ . . . ” R.S. 26:241(1), (2), (5).

Since R.S. 14:91 is neither vague nor overbroad, the ruling of the trial judge holding it unconstitutional for such reasons is reversed, and the case is remanded to the district court for further proceedings.

      . We make no inquiry into the possible disjunctive charging (C.Cr.P. 480) because the matter has not been argued before us.


author: TATE, Justice.

text:
    LOUISIANA POWER & LIGHT COMPANY, Plaintiff-Appellant, v. LOUISIANA PUBLIC SERVICE COMMISSION et al., Defendants-Intervenors-Appellees.
    No. 58751.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.

      Andrew P. Carter, Eugene G. Taggart, William T. Tete, Monroe & Lemann, New Orleans, for plaintiff-appellant.
    Marshall B. Brinkley, Baton Rouge, for defendants-appellees.
    E. Rudolph McIntyre, Winnsboro, John Schwab, Baton Rouge, for intervenor-appel-lee.
   TATE, Justice.

By these proceedings, the plaintiff utility (“Louisiana Power”) seeks judicial review of an order of the defendant commission. The order resulted from a complaint filed in the commission by another utility (“Northeast”), intervenor in these judicial proceedings. Northeast there claimed that, in violation of a commission general order, Louisiana Power was constructing duplicative facilities to serve a customer within a geographic area now served by Northeast.

Louisiana Power appealed to the district court for judicial review of the commission adjudication of this dispute in favor of Northeast, which ordered that Northeast’s lines provide service in the area. The district court upheld the order, following which Louisiana Power now appeals directly to this court. See La.Constitution of 1974, Article 4, Section 21(E).

Upon its appeal, Louisiana Power attacks: (1) the commission’s conclusion that Louisiana Power’s facility was duplicative of the service furnished by Northeast to the area; (2) the commission’s failure to conclude that service to be furnished by Louisiana Power would be more economical and reliable than that to be available from Northeast; (3) and, in the alternative, the validity of agency’s general order which the commission held was violated by Louisiana Power’s duplicative facility.

I.

Before discussing the factual context of this litigation, we deem it appropriate to discuss Louisiana Power’s contention claiming invalidity of the commission’s general order held to be violated by it.

The general order is entitled “In re: Duplication of Electric Service.” The full text of the order is set forth at Appendix 1 below.

The stated purpose of the general order is to prohibit uneconomic and wasteful practices in the service of electricity, in order to maintain reasonable rates. The commission determined that “wasteful competitive and unwise expenditures and investments which become a burden upon the rate payers” result from “the paralleling and duplication of existing transmission or distribution lines or the extensions of either by electric public utilities to serve customers readily accessible to like facilities of an electric public utility already providing service in the immediate area.”

The commission therefore ordered “That no extension of electric transmission or distribution lines shall be made by an electric public utility that will duplicate the transmission and distribution lines ... of another like utility, nor shall extensions be made to serve customers that could be served from such electric public facilities already in existence in an economic and justifiable manner.”

At the time the general order was issued, Louisiana Power did not attack its validity, although under the rules of the commission a procedure was available for it to do so for a period before and following issuance of the order. Further, as the commission points out, Louisiana Power thereafter has sought relief before the commission and the courts on the basis of the validity of this order. See, e. g., Louisiana Power & Light Co. v. La. Pub. Serv. Com’n., 324 So.2d 427, 429 (La.1975).

The commission’s brief suggests that the validity of the general order upon which the administrative adjudication is based is not properly before us for judicial review: It was not attacked in the administrative proceedings prior to the suit in district court for judicial review of the agency adjudication. Nevertheless, we pretermit decision of this preclusion issue, because the issue is not squarely raised by the pleadings in the district court, and since the record before us does not indicate clearly that the plaintiff could have raised the invalidity of the rule-making (general) order in the adjudicatory proceedings for which judicial review is now sought.

The general order was issued upon the constitutional authority of the commission to regulate public utilities and to adopt reasonable rules and regulations necessary for the discharge of this duty. La.Constitution of 1974, Article 4, Section 21(B).

Louisiana Power attacks the validity of the order upon three principal grounds:

(1) It first attacks the validity of the general order as attempting to grant a franchise to utilities in violation of Article 12, Section 14, La.Constitution of 1974 (which prohibits exclusive and perpetual franchises), and in the absence of statutory authority for the commission to grant any franchise.

The general order, on its face, does not purport to do so (see Appendix 1 below). Within the regulatory scope of the commission’s authority, the order merely regulates the construction of duplicating electric facilities, having regard to the effect of wasteful utility competition and expenditure upon the rates which must be charged to pay for them. See Louisiana Gas Service v. Polaris Corporation, 254 La. 297, 223 So.2d 810 (1969).

(2) The plaintiff utility next suggests that the exercise of the commission’s rule-making power in this regard violates its right to own and use private property, Article 1, Section 4, La.Constitution of 1974.

However, this constitutional provision also notes: “This right [of private ownership of property] is subject to reasonable statutory restriction and the reasonable exercise of the police power.” There is no showing whatsoever that the commission’s general order inhibiting duplicative electric-service facilities (the cost of which will ultimately be borne by rate payers) is an unreasonable exercise of its constitutional and legislative regulatory powers over public utilities and their rates.

(3) Finally, Louisiana Power argues that the commission’s general order constitutes an invasion of the power of the legislature. The basis for this argument is that the commission’s order prohibits duplicative utility construction to an area immediately served by the facilities of another utility; whereas by La.R.S. 45:123 (1970) the legislature prohibited construction of duplicative facilities only to points located within 300 feet of another utility’s electric line.

As we previously noted, the broad regulatory power of the commission includes within its scope the issuance of a general order inhibiting duplicative utility facilities, such as the present. The cited legislative enactment, though more limited in application, is not in conflict with the general order of the commission, which is likewise directed against duplicating utility facilities.

We are not impressed by this contention of the plaintiff. We are cited to no authority that, because the legislature addresses itself to a part of a problem within the constitutional authority of the commission to regulate, the commission is deprived of its constitutional power to issue regulations concerning broader aspects of the issue with which the legislature concerned itself only in part.

We conclude, therefore, that the plaintiff utility’s attack on the validity of the general order is without merit.

II.

The remainder of Louisiana Power’s contentions attack the commission’s factual and legal conclusions that its general order was violated, as well as some of the findings of fact by the commission.

Preliminarily, we note the principles applicable to judicial review of a commission order:

The orders of the commission are entitled to great weight and are not to be overturned on judicial review, unless shown to be arbitrary, capricious, or abusive of the commission’s authority. Louisiana Oilfield Carriers Ass’n, Inc. v. Louisiana Public Service Commission, 281 So.2d 698 (La.1973) and many decisions therein cited. As there noted, a person attacking a commission order bears the burden of demonstrating that it is defective, since the order is presumed to be valid. See also Monochem, Inc. v. Louisiana Public Service Commission, 253 La. 1047, 221 So.2d 504 (1969).

Further, while a ruling of the commission may be deemed arbitrary unless supported by some factual evidence, the function of the court on judicial review is not to re-weigh and re-evaluate the evidence and to substitute its judgment for that of the administrative agency constitutionally entrusted with regulation of the matter. Truck Service, Inc. v. Louisiana Public Service Com’n., 263 La. 588, 268 So.2d 666 (1972). As reiterated in Rubion Transfer and Storage Co. v. Louisiana Public Service Commission, 240 La. 440, 123 So.2d 880, 884 (1960): “ * * * Whenever the Public Service Commission, in the issuing of an order, has acted within its power, and not arbitrarily or grossly contrary to the evidence, and when no error of law has been committed, the court must not substitute its judgment for that of the commission, or consider the expediency or wisdom of the order, or say whether on like evidence the court would have made a similar ruling.”

The most arguable contention advanced by Louisiana Power is that its proposed six-mile line was not a duplication of any existing electric transmission or distribution lines of Northeast, as prohibited by the general order.

The contention is based upon the following facts:

The dispute arises out of the desire of Louisiana Power to provide electric service to a pipeline company’s new pumping station built near Oak Grove. The pumping station is 334.48 feet from an existing line of Northeast, and in an area immediately served by other electric lines of Northeast.

The evidence further shows that a three-phase, 34,500-volt electric line is necessary to provide reliable service to the two 1,500-horsepower motors of the new pumping station. To provide this service, Louisiana Power is required to construct a six-mile extension of its own facilities, crossing and closely paralleling at many places existing electric lines of Northeast.

Northeast’s present lines in the area are single-phase, 13,800-volt electric line. However, as the documented testimony of its consulting engineer at the commission hearing shows, Northeast has since 1972 planned to upgrade into a 34,500-volt line 9.31 miles of its 13,800-volt line now going into the area. Even before the construction of the new pumping station, Northeast intended to upgrade the voltage so as to provide more reliable service to its present 120 customers along the existing line (as well as to have the capacity to provide additional service to new customers, as the need arose along the line in question).

Louisiana Power first argues that its new three-phase 34,500-volt electric line could not be considered a duplication of the existing single-phase 13,800-volt electric line of Northeast. The district court properly rejected this contention for the following reasons:

“LP&L argues that, simply because Northeast’s existing facilities must be upgraded in order to serve Mid-Valley [’s pumping plant], LP&L’s construction of entirely new facilities for 6 miles to serve Mid-Valley does not constitute a duplication of the existing facilities. But ‘duplicate’ means, again according to Webster’s, ‘to double.’ Here, where there has been one right-of-way route, there are two; where there has been a line of poles and electrical lines, there are two; where there has been one utility company, there are two. It is this mischief which the Commission addressed in its General Order, and which it properly found to have been worked in this case. LP&L’s doubling constitutes duplication in any normal sense of the word or concept. The Commission was correct in so finding. Reduced to its logical consequence, LP&L’s argument would be that any new customer could be served by any utility, because some addition of a transformer, pole, and line is necessary to serve a new customer, so that no utility ever would have the ‘existing facilities’ which LP&L argues the General Order contemplates and requires. Obviously, the Commission disagreed with the LP&L argument, and so does this Court.”

Louisiana Power’s remaining contentions principally involve an attempt to have the courts re-evaluate the evidence so as to reach different conclusions than did the commission. (The findings and conclusions of the commission supporting its order are set forth at Appendix 2 below.)

We find no merit to these contentions. We find evidence in the record to support each of the findings and conclusions of the commission (see Appendix 2)—indeed preponderating evidence.

For instance, Louisiana Power argues that the evidence shows that the costs of its facilities to serve the power plant is $111,900, whereas Northeast’s costs of upgrading its longer lines would be $176,000. As the commission properly found, however, this argument overlooks that the Northeast line now serves 120 additional consumers, which line Northeast had previously planned to upgrade to 34,500 volts. Therefore, the entire cost of the upgraded facility should not be chargeable only against the cost of servicing the new pumping plant. (Northeast’s consulting electrical engineer testified that the additional costs involved in adding service to the pumping plant were only $10,000 over the amount previously planned for upgrading of the service to the 120 other consumers on the line.)

We likewise find no basis for Louisiana Power’s further contention that the commission erred in finding that Northeast’s present facilities, as upgraded, will be adequate for the pipeline pumping station. Louisiana Power’s witnesses did testify that Louisiana Power’s service would be more reliable; but nevertheless the commission had before it ample testimony that Northeast’s upgraded line would provide completely reliable service to the new pumping plant and to all its present customers along Northeast’s line.

Without citation of applicable authority, Louisiana Power finally argues that the commission erred in not affording a preference to a customer’s choice of the utility to be served and in not considering that, at least under its present rate structure, Louisiana Power might be able to serve this individual customer at a lower rate than could Northeast.

We do not regard the commission’s ruling as arbitrary that, in the determination of whether its general order inhibiting dupli-cative electric service lines is violated, it is irrelevant that one utility may be able to provide service at lower rates (at least temporarily for this single customer) through its duplicative line. In the present case, for instance, Northeast’s present 120 customers will through their rates pay for the long-intended upgrading to 34,500-volt capacity of Northeast’s existing line, whether or not servicing the pumping station shares in paying the cost of the upgrading. At the same time, if Louisiana Power is allowed to provide service to this pumping plant, it will build a six-mile line to service this single customer. As the commission observed, the construction of these duplicative lines under such circumstances will “ultimately lead to wasteful competition, unwise expenditures, and excessive aggregate rate bases.” (Italics ours.)

Conclusion

The defendant commission’s order now judicially reviewed is not shown to be arbitrary, as contrary to law or to evidence heard by the regulatory body. Therefore, under accepted principles of judicial review, this court may not substitute its judgment for the commission’s and overturn such non-arbitrary ruling, which moreover we find to be supported by the preponderant evidence.

Accordingly, we affirm the judgment of the district court, which dismissed the plaintiff’s suit to review the commission’s order, at the cost of the plaintiff-appellant.

AFFIRMED.

APPENDIX 1

The text of the Louisiana Public Service Commission General Order dated March 12, 1974, regulating “Duplication of Electric Service” is as follows:

At the session of the Louisiana Public Service Commission held at its office in Baton Rouge, Louisiana, on March 12, 1974, the matter of the most economical and least wasteful utilization and development of electric public utility facilities was considered.

It is the opinion of this Commission that in order to effect economies in the service of electricity, and, thus, keep rates therefor within reasonable bounds, uneconomic and wasteful practices should be prohibited. It is determined that the paralleling and duplication of existing transmission or distribution lines as defined in Louisiana Revised Statutes 45:123 or the extensions of either by electric public utilities to serve customers readily accessible to like facilities of an electric public utility already providing service in the immediate area is not in the public interest, and that such practices ultimately lead to wasteful competition and unwise expenditures and investments which become a burden upon the rate payers.

It is recognized that while in some areas there is not clear line of demarcation between the service area of electric public utilities, for the purpose of this order, the service area of electric public utility is that area which, as a result of the existence of transmission and distribution lines, is readily accessible by economically feasible extensions from such existing facilities. This necessarily includes customers already receiving service. It is, accordingly, ordered.

That no extension of electric transmission or distribution lines shall be made by an electric public utility that will duplicate the transmission and distribution lines (as defined in Louisiana Revised Statutes 45:123) of another like utility, nor shall extensions be made to serve customers that could be served from such electric public utility facilities already in existence in an economic and justifiable manner. If a public utility, for good cause, refuses to serve a prospective customer within its service area, another like utility may serve the said customer upon written authority of this Commission.

If economies or reliability can be effected in the construction of transmission or distribution lines by a utility company through a service area already being served by another public utility, such construction shall not be regarded as an “invasion” so long as no such transmission or distribution lines are tapped for service in the said service area. In the event that a tap from such transmission and distribution line is necessary or desirable, it shall be made only upon separate and specific written authority of this Commission after hearing.

The term public utility shall include electric cooperatives and public utility activity or service under the jurisdiction of the Commission.

Notwithstanding any other provision hereof, nothing contained herein shall preclude any electric public utility from extending service to its own property, or to another electric public utility for resale.

APPENDIX 2

Findings and conclusions of Louisiana Public Service Commission in Northeast Louisiana Power Company, Inc. v. Louisiana Power & Light Company, Docket No. U-12799:

In this proceeding Northeast Louisiana Power Cooperative, Inc. alleges that Louisiana Power and Light Company violated the provisions of this Commission’s General Order entitled “Duplication of Electric Service” and LRS 45:123 by contracting to serve Mid-Valley Pipeline Company at its proposed pumping station in West Carroll Parish, Louisiana.

The matter was heard by the Commission in Regular Session held July 15, 1975.

Witnesses for Northeast Louisiana Power Cooperative, Inc. testified that the Company has long range plans to convert existing facilities within the area in question to 34.-5KV, approved by REA in December of 1972, and that the new facilities will adequately serve the facilities of Mid-Valley Pipeline Company and improve service to the existing customers. They further testified that the service to the Pipeline Company will merely advance the completion date of its long range plans. They further testified that the route proposed by Louisiana Power and Light Company will duplicate the lines of Northeast Louisiana Power Cooperative, Inc. for approximately four miles and cross the territory presently being served by Northeast, as well as two lines of Northeast.

Witnesses for Louisiana Power and Light Company testified that the proposed construction by their Company is more economical and more reliable than Northeast service.

It is the opinion of the Commission that the provisions of LRS 45:123 have not been violated since no point of connection has been or will be served by one electric utility within 300 feet of an existing line of another electric utility. However, the Commission does find that the provisions of this Commission’s General Order entitled “Duplication of Electric Service,” dated March 12, 1974, prohibit the extension of facilities by one electric utility to serve customers readily accessible by facilities of an electric public utility already providing service in the immediate area. Such practices ultimately lead to wasteful competition, unwise expenditures, and excessive aggregate rate bases. It is evident in this case that both utilities will utilize the same substation and therefore overall investment in facilities should cost approximately the same. The Cooperative has served the immediate area and will have facilities adequate for the Pipeline Company regardless of the outcome of this matter; the same cannot be said of Louisiana Power and Light Company. Moreover, the upgraded Northeast facilities will serve more than this customer, reducing the cost per customer. * * *

      . The commission’s rules are not before us. We note, however, that for agencies subject to Louisiana’s administrative procedure act, a party to an adjudicatory proceeding, if he contests the validity or applicability of an administrative rule, is ordinarily required to raise the issue in the administrative proceeding before he may obtain judicial review of the rule’s validity upon his appeal from a final agency decision. La.R.S. 49:963 (1966). See also 3 Davis, Administrative Láw Treatise, Section 20.06 (1958; see also 1970 and 1976 supplements).
      On the other hand, where as here the issues relate more to the lawfulness of the rule-making order rather than to the factual basis or the administrative policies which support its validity — instances in which administrative expertise should be permitted to explain the technical bases for the rule in an administrative record — , many state courts do not mandatorily require prior resort to an administrative remedy before they will afford judicial review of the invalidity of a general order, at least in the absence of legislative mandate or valid regulation requiring such prior resort. See 2 Cooper, State Administrative Law 568-82, 600-602 (1965).

      . See also La.R.S. 45:1163-64 which provide: “[1163] The commission shall exercise all necessary power and authority over any public utility for the purpose of . regulating the . service furnished . .” and “[1164] The power, authority, and duties of the commission shall affect and include all matters and things connected with, concerning, and growing out of the service to be given or rendered by such public utilities. . ”

      . Louisiana Power cites Central Louisiana Electric Co. v. Louisiana Public Service Com’n., 253 La. 553, 218 So.2d 592 (1969). The decision is inapposite to any issue now before us. There, we held only that electric cooperatives were not “utilities” for purposes of the mandatory constitutional jurisdiction of the Louisiana Public Service Commission (although indicating that, by legislation, they might be made subject to such regulatory powers of the commission).

      . For instance, with regard to Louisiana Power’s contention that $176,000 must be spent by Northeast to convert its line to 34,500 volts, whereas only $111,900 must be spent by Louisiana Power: Northeast’s figure includes the sum of $66,000 for individual distribution transformers to Northeast’s present 120 customers, a charge not necessitated by Louisiana Power’s duplicating line (since it had no other customers than the pumping plant to be served by its new six-mile line). Arguably, even overlooking the pro-rating of the cost among all consumers served by the line, the costs of both utilities to service the new pumping plant were approximately equal.


author: SUMMERS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Thomas Louis PHILLIPS.
    No. 58429.
    Supreme Court of Louisiana.
    March 7, 1977.

      Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Timothy W. Cerniglia, Asst. Dist. Atty., for plaintiff-ap-pellee.
   SUMMERS, Justice.

On the morning of October 8, 1974, Gary Eugene Solomon was driving his car to school in the City of New Orleans. As he proceeded he observed a blue flashing light on a vehicle behind him. Thinking the police were trying to stop him, Solomon pulled over to the side of the street. The defendant, Thomas Louis Phillips, driver of the following car, pretending to be a police officer, got out of the following car and demanded Solomon’s license and registration papers. Defendant then searched Solomon’s car, handcuffed him and put him in defendant’s car.

With Solomon handcuffed in the car, Phillips drove around for some time. After a while he brought Solomon to a hotel room. Subsequently a $250,000 ransom demand was made on Solomon’s father. The next day Phillips instructed the victim’s father to go to a pay phone at a designated drugstore, where Phillips, with the victim in custody, called him from a gas station pay phone. As Phillips was finishing the call, he was captured by F.B.I. agents, and the victim was freed.

An indictment returned by the Orleans Parish Grand Jury charged that Phillips “did forcibly seize and carry off the person of one Gary N. Solomon with the intent to force some other person to give up $250,-000.00 in order to secure the release of the said Gary N. Solomon.” The indictment was based upon Article 44 of the Criminal Code relating to aggravated kidnapping.

After a defense plea of not guilty and not guilty by reason of insanity, trial by a jury of twelve resulted in a verdict of “guilty.” Phillips was sentenced to serve the remainder of his natural life in the custody of the Department of Correction with credit for time served. Nine of the eighteen assignments of error reserved are urged on this appeal. Defendant is an indigent represented by counsel appointed by the Court.

Assignment 1

In a supplemental application for bill of particulars, defense counsel sought copies of all statements made by prosecution witnesses. The Court is informed by the defense brief that the application was particularly directed to statements which may have been made by the victim and his father. The State answered that the defense was not entitled to this information, and the trial judge found the answer to be satisfactory. The ruling is assigned as error.

It is argued in support of this assignment of error that the sixth amendment to the United States Constitution guarantees an accused the right to cross-examine and confront witnesses against him. Because defense counsel was unable to discover the statements of these witnesses, it is contended that he was unable to adequately prepare a defense. As a result, the defense was unfairly surprised, and defendant was effectively denied his sixth amendment right.

No special need is shown for the production of the statements, nor does the record indicate that the statements are exculpatory, or, in fact, that such statements exist. And we feel that in some instances the preliminary hearing provides an opportunity for the defense to interrogate the State’s witnesses and thereby avoid surprise. In addition, the defendant has an opportunity to conduct an independent investigation and to interview the witnesses.

This Court has taken the position, shared by a substantial majority of jurisdictions, that pretrial disclosure of a potential witness’ statement should not be granted even upon a showing of particular need. Decisions on pretrial discovery generally support this proposition. State v. Huizar, 332 So.2d 449 (La.1976); State v. Redfud, 325 So.2d 595 (La.1976); State v. Kado, 300 So.2d 461 (La.1974); State v. Hunter, 250 La. 295, 195 So.2d 273 (1967).

The confrontation clause of the sixth amendment was designed to advance the practical concern for the accuracy of the truth determining process in criminal trials. Its object was to guarantee that the fact-finder has adequate opportunity to assess the credibility of witnesses. It is the right of cross-examination which the amendment aims to assure. It is face to face confrontation at trial which is involved in this guarantee. Bruton v. U. S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). There is, therefore, no deprivation of this right by the denial of a pretrial disclosure of statements of the prosecution’s witnesses. See State v. Ivey, 442 S.W.2d 506 (Mo.1969); cf. Winkle v. State, 488 S.W.2d 798 (Tex.Ct.App.1972).

Assignment 3

In a pretrial petition based on Articles 739-40 of the Code of Criminal Procedure the defense requested the issuance of subpoenas and writs of habeas corpus ad testificandum for eight individuals incarcerated in federal prisons in Texas, Missouri, New Mexico, Georgia and Oklahoma. The petition alleged only that these prospective witnesses would be called to testify and their testimony would be relevant and material.

A motion by the State to deny defendant’s request set forth that defendant’s petition failed to show that the testimony of these witnesses would be relevant and material; that the request was frivolous and was intended merely to delay the trial on the merits; and that the expense for transporting the prisoners was estimated by the U. S. Marshal to be $4,000.

A hearing was held in chambers on defendant’s petition out of the presence of the State’s attorneys. The evidence adduced revealed that the prospective witnesses, most of whom were former inmates with defendant while he was incarcerated in the House of Detention, would testify to defendant’s irrational and unexplainable action in prison. According to defense counsel, this evidence would bolster defendant’s plea of “not guilty and not guilty by reason of insanity.”

Thereafter when the Court rendered its decision sustaining the State’s motion, the trial judge filed the transcript of the hearing testimony into the record of this case. The transcript contained his reasons for denying the subpoenas. In addition, he adopted the State’s brief as part of his reasons. He was of the opinion that none of defendant’s fifth amendment rights were violated, expressing the opinion that the relevancy of fifth amendment rights was “somewhat questionable.” The defense objected to this ruling and applied to this Court for review. The application was denied, the Court being of the opinion that “The showing made does not warrant the exercise of this Court’s supervisory jurisdiction. The transcript of evidence satisfies this Court that there is no error in the ruling of the trial judge.” See State v. Phillips, La., 322 So.2d 769 denial dated November 11, 1975.

In brief to this Court counsel for defendant contends that Articles 739 and 740 of the Code of Criminal Procedure, and the comments thereto, specifically provide for a “private inquiry” by the Court into the facts surrounding the requested witnesses; therefore, filing the transcript of that inquiry into the record violates the privacy contemplated by those articles. This is so, according to the argument, for by filing the transcript into the record the prosecution is apprised of what transpired at the hearing, defeating the primary purpose of Articles 739 and 740, which is designed to protect the defendant against disclosure of his defense to the State prior to trial.

A consideration of Articles 739 and 740, and the comments, reveals that the “private inquiry” prescribed “is intended to give the judge full discretion in ordering or refusing to order the attendance of witnesses from other parishes after reviewing the facts of the case.” (emphasis added). Comments, Art. 740. It is also evident that the trial judge should file his reasons for refusal of the subpoenas to permit appellate review. Id.

Thus, from this record, it is apparent that the procedure prescribed in holding the “private inquiry” and the action of the trial judge in filing his reasons in the record is in keeping with the requirements of Articles 739 and 740. Only the filing of the testimony obtained at the “private inquiry” is subject to question under the defense contention that this action has the effect of disclosing the defendant’s defense to the State prior to trial.

The question to be answered before this conviction is reversed is whether the filing of the transcript into the record is such an error that it has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right. La.Code Crim. Proc. Art. 921. In our view the error does not warrant reversal.

The requirement of Article 740 that the judge shall state his reasons in writing for not issuing the subpoenas and that the written reasons shall become part of the record conceivably presents some difficulty in execution. Especially is this apparent when those reasons, as in this case, must, in order to be adequate for appellate review, recite the substance of the testimony of the witnesses who are sought to be subpoenaed. How else can the judge’s reasons serve as a basis for review on a determination that the witness is not “indispensable to the trial or hearing,” or that the testimony of the witness is “relevant, material, and not cumulative”?

A review of the defendant’s testimony at the “private inquiry” convinces the reader that the trial judge must have concluded that the testimony of the witnesses would be “cumulative” and as such was not “indispensable” to the trial on the issue of defendant’s insanity at the time of the commission of the offense. Only the defendant’s uncorroborated testimony was produced at the hearing to support the claim that his fellow inmates would testify to his irrational behavior while incarcerated. Even if the proposed testimony was given, it would add little to the facts bearing upon defendant’s sanity in view of the testimony of other witnesses who testified to the same effect.

Aside from the defendant’s plea of insanity, the State was well aware of the defense to be advanced at the trial. Before the filing of the hearing transcript, defendant had been examined by two sanity commissions involving six doctors. Furthermore, in advance of the private inquiry, before the State’s attorney voluntarily excused himself from the hearing, he stated for the record that none of the witnesses defendant was seeking would shed light upon the facts surrounding the offense, all would testify in connection with the defense of insanity. It was the prosecution’s stated position at that time that the out-of-state witnesses were fellow inmates of defendant at the same time as the in-state witnesses, who would testify on the same subject, and, therefore, the testimony of the out-of-state witnesses would be cumulative. The State’s attorney urged the trial judge to inquire into this contention as he would not be present to cross-examine.

Under these particular circumstances the Court is of the opinion that the filing of the transcript did not amount to a substantial violation of Article 739 or 740 and that no miscarriage of justice resulted. The substance of the defense was well known to the State, and the particulars disclosed at the hearing would not contribute to that defense. La.Code Crim.Proc. Art. 921. See also State v. Chavers, 294 So.2d 489 (La.1974) and State v. Square, 257 La. 743, 244 So.2d 200 (1971).

Assignments 2, 4 and 17

Error is alleged to have been committed when, in the hearing on the State’s motion to deny defendant’s request for subpoenas, the trial judge inquired into the nature of the testimony the defendant sought to elicit from in-state witnesses.

By questioning, the trial judge ascertained from the defendant that the prospective witness James S. Brown, a local witness, would testify that he saw defendant do various things that he didn’t remember and that he had told Brown he was somebody else and “different things” in the House of Detention when they were both inmates there.

Defense counsel objected to any inquiry into the testimony defendant’s requested local witnesses would give. He argued the defendant was entitled to twelve witnesses on a felony trial notwithstanding the nature of their testimony. Cumulative testimony within the meaning of Article 739 of the Code of Criminal Procedure, it was asserted, had reference to evidence which was cumulative between those witnesses in excess of the number allowed under Article 738. The same argument is advanced with respect to the out-of-state witnesses. Their testimony must also be cumulative between themselves—that is, between the out-of-state witnesses without reference to any other evidence on the subject, to fall within the intendment of Article 740. Hence, it is said, there was no license to inquire into the testimony of those witnesses within the twelve allowed by law.

The trial judge was of the opinion that he would be unable to determine whether the testimony of the out-of-state or excess local witnesses would be cumulative, unless he had an idea what the other witnesses, who were local, would testify on the same subject. Accordingly, he overruled the defense objection. Assignment 2 was reserved.

The ruling of the trial judge is correct. The trial judge’s inquiry into the testimony defendant’s local witnesses would give did not result in the limitation of the number of defendant’s local witnesses at the expense of the parish under the authority of Article 738 of the Code of Criminal Procedure. To the contrary, in his ruling the trial judge said he would allow the defense additional witnesses within the State if needed.

An essential aim of the private inquiry is for the trial judge to determine whether the testimony of the witnesses “is relevant and material and not cumulative.” La.Code Crim.Proc. Art. 739. While the defense brief asserts that the testimony of the witnesses is not cumulative unless it is “cumulative as between themselves,” this is not the test. As we understand the problem, it is the obligation of the trial judge to ascertain whether testimony of extra or out-of-state witnesses will be cumulative of other testimony or evidence, whether it involves local and out-of-state witnesses or other combinations of testimony or tangible evidence.

Cumulative evidence is generally understood to be additional evidence of the same kind tending to prove the same point as other evidence already given, or, as in the context of this issue—evidence to be given. Put another way, cumulative evidence is that which strengthens a party’s position on a conflict already existing in the evidence produced at the trial. Foster v. Rosamond, 20 Ala.App. 99, 180 So. 334 (Ala.App.1938); Redmond v. Marshall, 162 Miss. 359, 137 So. 733 (1931); 32A C.J.S., Evidence § 1016; 29 Am.Jur.2d, Evidence §§ 4, 256; Black’s Law Dictionary (4th ed., 1951). It is noted, moreover, that some of the witnesses subpoenaed by defendant to testify on the issue of insanity were not called to the stand.

Assignment 4 was reserved to the ruling of the trial judge granting the State’s motion to deny defendant’s request for subpoenas of out-of-state witnesses.

In view of the fact that a defendant pleading insanity must affirmatively prove his insanity by a preponderance of the evidence, defendant argues he should be given the means to effectively carry this burden. To limit an indigent defendant’s access to witnesses while not so limiting a non-indigent, whose finances enable him to obtain more witnesses at his own expense, is a denial of due process of law and equal protection of the laws as guaranteed by the United States Constitution.

An indigent accused has no constitutional right to the unrestricted exercise of all the measures money can buy in defense of the charges against him. The Constitution does guarantee, however, that he be provided with those rights and facilities which are essential to a fair trial. In the area of the right to subpoena witnesses, Articles 738, 739 and 740 do afford an indigent defendant a reasonable assurance that he may obtain a fair trial. The standards adopted by these Articles meet the test of due process and equal protection of the laws guaranteed by our State and Federal Constitutions.

This issue was considered before this trial on defendant’s application to this court to review the ruling under our supervisory jurisdiction. As noted in connection with our opinion on Assignment 3, no error was found in the ruling of the trial judge at that time, and that ruling is affirmed.

Assignment 17 is not argued and no opinion is required on the issue presented.

Assignments 5, 15, 16 and 18

The defense has consolidated these assignments for argument on appeal for they all primarily involve the question whether this trial should have been conducted as a capital case.

Assignments 5, 15 and 16 pertain to defendant’s motions for mistrial based upon allegations that the jury should have been sequestered in a trial involving a charge of aggravated kidnapping under Article 44 of the Criminal Code; and because television and newspaper publicity of a kidnapping in which the victim was murdered in Gulfport, Mississippi during the week of the trial made sequestration necessary to shield the jury from the prejudicial influence that publicity would produce. Assignment 18 involves a defense objection to the judge’s denial of a special charge to the jury that all twelve jurors must concur in the verdict.

As the narrative of facts indicates, the victim was freed unharmed at the time of arrest. At the trial, the State stipulated that the victim was released unharmed. Article 44 of the Criminal Code defines the crime of aggravated kidnapping. The penalty provision for this crime in that Article reads thus:

“Whoever commits the crime of aggravated kidnapping shall be punished by death; provided that if the kidnapped person is liberated unharmed before sentence is imposed then the sentence of death shall not be given but the offender shall be sentenced to life imprisonment at hard labor.”

Thus Article 44, in effect, sets out two grades of aggravated kidnapping and prescribes a separate penalty for each. If the victim is harmed during commission of the crime the death sentence must be imposed, and the trial of such a case is governed by the rules applicable to capital cases. However, if, as in the instant case, the victim is freed and unharmed before trial, the case is a non-capital felony and should be tried in accordance with the procedure prescribed for offenses involving mandatory life imprisonment at hard labor. State v. Sewell, La., 342 So.2d.156 (Decided January 24, 1977). As we held in State v. Sewell, the lesser penalty Article 44 prescribes is designed to deter the kidnapper from inflicting harm upon the victim. And, as we held, the lesser penalty applies whether the victim is liberated unharmed at the instance of the offender or otherwise.

It was understood at the outset of these proceedings that the trial would be conducted as a non-capital case involving life imprisonment. In addressing the prospective jurors at the time of the voir dire examination, the State’s attorney told them:

“The offense for which Mr. Phillips is being tried is an offense that is punishable by life imprisonment because of the fact Gary Solomon was freed or released, was liberated, before there’s any possibility of sentence being imposed. The fact that it is a non-capital offense means that you won’t be sequestered or locked up if you are selected to serve as a juror.”

Defense counsel also addressed the assembled prospective jurors as a preliminary to the voir dire examination. In the course of this presentation he said:

“As Mr. McMann [State’s attorney] told you, Mr. Phillips is charged with aggravated kidnapping. He also told you that that is not a capital offense because the alleged victim was returned unharmed, was released or liberated unharmed. He did also tell you that the crime of aggravated kidnapping carries with it a mandatory penalty of life imprisonment, which we all understand. No one needs to be sequestered and the judge has determined that he will not sequester you. The law does not require him to do so. After we have chosen the jury today, you all will be released under the orders of the judge and will return on Thursday.”

Again, the State’s attorney told the prospective jurors:

“Now, because the victim was released— now, the statute reads: Whoever commits the crime of aggravated kidnapping shall be punished by death, a capital case, except when the person is released unharmed. In other words, if he is not killed or he is not seriously injured then it is not a capital case. That’s the position we’re in today. That’s why each of you will be able to go home, should you be picked, until we resume Thursday.”

In keeping with the understanding clearly expressed by counsel for the State and the defense, after the jury was selected and sworn, the trial judge permitted them to go home for the night without a defense objection. The objections arose later during the trial.

This Court’s recent decision in State v. Sewell, supra, is controlling here and the trial in the instant case was properly conducted in accordance with the procedure prescribed for non-capital felonies requiring a mandatory sentence of life imprisonment. Sequestration was not therefore mandatory and a unanimous jury verdict was not required.

Defense counsel’s second argument on the sequestration issue is based upon the contention that the trial judge abused his discretion in not sequestering the jury during the trial. The claim is that the local newspaper and television stations had given wide publicity to a kidnapping in which the victim was murdered, the kidnapping having occurred in Gulfport, Mississippi during the week of the trial. According to the defense contention this publicity was prejudicial for it would tend to confuse the jury into believing the reported incident involved this defendant.

Article 791 does vest discretionary authority in the trial judge to sequester the jury “at any time.” However, the showing here is based upon a tenuous theory, inconsistent with the facts presented at the trial, and the argument fails to take into consideration the jury’s ability to separate the facts of the Mississippi incident from the case before them. This contention is therefore untenable.

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

TATE, J., assigns concurring reasons.

DENNIS, J., concurs, disagreeing with the treatment of assignment No. one.

TATE, Justice,

concurring.

I concur in the majority opinion. However, with respect to Assignment No. 1, the majority states that pre-trial disclosure of a witness’s statement should not be granted even upon a showing of particular need. This statement must be read in the context of the present decision and of the other decisions cited: After conviction, the failure to require pre-trial disclosure will not be cause for reversal, unless the record shows that the accused has been denied a fair trial thereby, such as by the failure of the state upon request to disclose statements containing Brady information favorable to the defendant. See Davis v. Heyd, 479 F.2d 446 (CA 5, 1973), annulling conviction in State v. Davis, 259 La. 35, 249 So.2d 193 (1971).

Nevertheless, even beyond the requirement of disclosure in such circumstances (upon penalty of reversal upon failure to accord it), the trial court has inherent discretion to require disclosure of pre-trial statements in the interest of fairness and of expeditious trial of the issues of a criminal prosecution. In the exercise of our supervisory jurisdiction, we have in quite a few instances refused to disturb the trial court’s discretion in this regard, which is in accord with the practice in many American jurisdictions and with the recommendations of most of the recent organized studies of the criminal justice system of America.

The statement in the majority opinion must be understood in this context of the actual practice of this court and of many judicial districts of this state.

      . “Art. 739. Indigent defendant
      “If a defendant is indigent and unable to pay for witnesses desired by him in addition to those summoned at the expense of the parish, he shall make a sworn application to the court for the additional witnesses. The application must allege that the testimony is relevant and material and not cumulative and that the defendant cannot safely go to trial without it. “The court shall make a private inquiry into the facts, and if satisfied that the defendant is entitled to the privilege, it shall render an order permitting the defendant to subpoena additional witnesses at the expense of the parish. If the application is denied, the court shall state the reasons for the denial in writing, which shall become part of the record.
      “Art. 740. Method of obtaining a witness from another parish
      “A defendant who wishes to have a subpoena issued for the attendance of a witness who is not residing in the parish where the trial or hearing is held shall file a written application with a supporting affidavit stating the address and parish wherein the witness resides. The application shall state that the testimony of the witness is relevant, material, and not cumulative. The court shall make a private inquiry into the facts of the case to determine whether the witness is indispensable to the trial or hearing. If satisfied, the court may order the subpoena issued. If the court finds that the subpoena should not issue, it shall state its reasons in writing, which shall become a part of the record. Payment of the expenses of obtaining witnesses under the provisions of this article shall be governed by Article 738 and Article 739.”

      . “Art. 738. Number of witnesses allowed “At a trial or hearing, each defendant in a misdemeanor case shall be allowed to summon six witnesses at the expense of the parish, and in a felony case twelve witnesses. A defendant shall have the right of compulsory process for additional witnesses at his own expense.”

      . “Art. 791. Sequestration of jurors and jury
      “A jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.
      “In capital cases, after each juror is sworn he shall be sequestered.
      “In noncapital cases, the jury shall be sequestered after the court’s charge, and may be sequestered at any time upon order of the court.”