author: DIXON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Robert C. SWIFT and Alfred R. Patterson.
    No. 61915.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      William J. O’Hara, III, Supervising Atty., New Orleans, Philip A. Costa, Student Practitioner, for Alfred R. Patterson.
    Clement F. Perschall, New Orleans, for Robert C. Swift.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

In the early morning hours of May 17, 1976, defendants Robert C. Swift and Alfred R. Patterson were arrested for the crime of simple robbery of a record shop, a violation of R.S. 14:62. Defendants were tried before a jury on February 8,1977. On the morning of the trial the defense filed a motion to request from the prosecution the voting records on each juror on the jury panel. The motion was denied by the trial judge, although the prosecution admitted having the records and intending to use them in the case. When defense counsel attempted on voir dire to elicit this information from the prospective juror, the trial judge ex proprio motu limited the scope of the questions to whether the venireman had prior jury experience and would not allow counsel to inquire concerning the verdicts or actual vote of each venireman. The trial proceeded and the defendants were found guilty as charged. On appeal they assign seven errors for reversal of their convictions.

Assignment of Error No. 1

The defendants’ first assignment of error concerns the trial judge’s denial of their motion to obtain from the prosecution the voting records of each juror on the jury panel. According to the defendants, the trial judge’s ruling had the effect of denying them the right to a full voir dire examination secured to them by Article I, § 17 of the Louisiana Constitution.

This issue has been addressed a number of times by this court in recent years. According to our decisions, to obtain the voting records held by the prosecution the defendant must show that the records are necessary to prevent prejudice to his case, hardship, or injury. State v. Wright, 344 So.2d 1014 (La.1977). To make this showing the accused is required to demonstrate that he cannot practicably obtain the information and that the State intends to use the information in selecting the jury. State v. Singleton, 352 So.2d 191 (La.1977); State v. Rey, 351 So.2d 489 (La.1977); State v. Wright, supra. In the present case the State freely admitted that it intended to use the voter information to select the jury, and therefore the defendants need show only that they could not practicably obtain the information by other means.

In State v. Holmes, 347 So.2d 221 (La. 1977), a defendant’s claim that he could not obtain the information concerning past jur- or activity was deemed premature when raised prior to voir dire. In this case, however, the defendants attempted to elicit the information on voir dire but were prevented from pursuing the line of questioning by the trial judge. The defendants argue in brief that their poverty prevents their obtaining the information except from the prosecution. Furthermore, the independent nature of the defense bar is alleged to preclude, because of lack of organization, a coordinated activity to amass voting records from other criminal trials.

In his per curiam the trial judge stated that the Office of the Indigent Defender Program (O.I.D.P.) kept a record of the vote in all criminal trials in Orleans Parish by assigning a representative to each section of the Criminal District Court and that these records were substantially similar to those sought from the prosecution. Moreover, the trial judge stated that an attorney from O.I.D.P. was seated with defense counsel during voir dire because defense counsel was a student practitioner from the Loyola Law School Clinic. It appears, therefore, that the defendants were not prejudiced by the trial court’s denial of the motion because they could have obtained the records from O.I.D.P. The defendants’ failure to challenge the trial judge’s statement that the records existed and were available to them persuades us that they have not demonstrated the requisite unavailability of the records through alternative means.

This assignment is without merit.

Assignment of Error No. 2

The defendants assign as reversible error the trial judge’s refusal to allow defense counsel to question prospective jurors with regard to their prior jury service.

During voir dire the following exchange occurred:

“BY MR. TEITTEL:
Now, does anyone here have any prior jury service, either criminal or civil? You have, sir?
BY A JUROR:
I was on a criminal jury.
BY MR. TEITTEL:
And, did you reach a verdict?
BY THE JUROR:
Yes.
BY THE COURT:
Just a moment. That’s an improper question. You can ask them if they had previous jury experience, and the answer is either yes or no, and that’s as far as you can go. We can’t try other cases that have already been tried in here today. We have to try this one.
BY MR. TEITTEL:
Your Honor, I’ll just note an objection. BY THE COURT:
Alright.”

The voir dire and trial in the instant case took place on February 8, 1977. Five months later, on June 20, 1977, this court’s decision in State v. Holmes, supra, was rendered wherein the cases of State v. Roquemore, 292 So.2d 204 (La.1974); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971); and State v. Martin, 250 La. 705, 198 So.2d 897 (1967) were overruled as to the restricted scope of voir dire. The court held that it was permissible for the defendant to ask questions such as whether one had served on a jury before, the charge in that case, the verdict in that case, and the like. The issue therefore becomes whether the decision in State v. Holmes, supra, should be applied retroactively, thereby requiring a reversal in this instance.

The determinative factor in giving retroactive application to a new rule of law is whether the rule goes to the integrity of the fact-finding process. State v. King, 347 So.2d 1108 (La.1977); City of Baton Rouge v. Short, 345 So.2d 37 (La.1977); State v. Liesk, 326 So.2d 871 (La.1976). See also, Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

In discussing the retroactive application of interpretations of the federal constitution, Justice White said:

“Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.” Williams v. United States, 401 U.S. at 653, 91 S.Ct. at 1152, 28 L.Ed.2d at 395.

The purpose of the rule of State v. Holmes, supra, is to assure the defendant’s right to “full voir dire examination of prospective jurors,” granted by Article I, § 17 of the Louisiana Constitution. If not allowed to question prospective jurors on past voting records in other trials, a defense attorney may not exercise his peremptory challenges as effectively, but it is difficult to argue that the accuracy of the verdict is thereby called into question. Therefore, under the traditional analysis as stated above, the rule in Holmes does not appear to bear this substantial relationship to the fact-finding process.

Since it is determined that the rule in Holmes does not substantially enhance the integrity of the fact-finding process, we must consider certain factors including the purpose served by the new rule, the extent of reliance on the old standard, and the effect a retroactive application would have on the administration of justice. State v. King, supra. See also Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Williams v. United States, supra; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Although the purpose of the rule (to assure full voir dire and thereby enhance the intelligent use of peremptory challenges by the defendant) is worthy of recognition, it is in this instance outweighed by the reliance which authorities have placed upon the older rule articulated in State v. Roquemore, supra.

Moreover, we find support for a prospective application of Holmes in the jurisprudence dealing with the retroactive application of decisions concerning the selection and composition of juries. In State v. Robinson, 361 So.2d 864, we declined to give retroactive application to the decision in Ballow v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), which prohibited the use of five member juries in criminal cases. Although we held in State v. Cage, 337 So.2d 1123 (La.1976), that an indictment returned by an improperly constituted grand jury was to be quashed, we specifically declined to apply the decision retroactively in State v. Ferguson, 358 So.2d 1214 (La.1978). State v. Hoffman, 345 So.2d 1 (La.1977), announced a new method for selecting a jury panel but gave it only prospective application. A similar stance was taken by the United States Supreme Court in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), when it gave only prospective application to its decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 672, 42 L.Ed.2d 690 (1975), wherein it had been decided that excluding women from jury venires was a violation of the Sixth Amendment.

We therefore hold that the rule in State v. Holmes, supra, applies only to those prosecutions begun after the date the opinion was rendered, June 20, 1977.

The assignment of error is without merit.

Assignment of Error No. 3

The defense maintains that it was reversible error for the trial judge to allow the assistant district attorney to show a map to one of the witnesses, Officer Stanley Brown, and to allow the witness to testify from it. The incident occurred after Officer Brown had testified concerning the route taken by the defendants after they left the record store with the police in pursuit. The assistant district attorney then showed Officer Brown a map of the area complete with street names and the alleged route of the defendants and then began to recapitulate the substance of the officer’s testimony concerning the flight of the burglars.

Defendants contend that this procedure resulted in the prosecution’s leading its own witness in violation of E.S. 15:277. However, it is questionable whether the prosecutor actually suggested an answer to Officer Brown, since the witness had already testified in some detail about the movements of the defendants. Moreover, even if the-question was leading, the defendants must show that prejudice thereby resulted to them in order to obtain a reversal. State v. Haynes, 339 So.2d 328 (La.1976); State v. Fallon, 290 So.2d 273 (La.1974). In brief the defendants argue that by the map the prosecution was able to link the defendants to the scene of the crime. However, Officer Brown’s testimony by itself was sufficient to do this, and as a result this argument is also without merit.

Assignment of Error No. 4

The defendants herein allege that the trial court committed reversible error by allowing the State to assume facts not in evidence as to the identification of one of the co-defendants made by a witness, a violation of R.S. 15-278.

At trial defendants objected when the assistant district attorney asked Officer Smock whether Robert Swift was wearing the same clothes when he was arrested as when he ran from the record shop. Defendants contend that this question assumed facts not in evidence because the names of both defendants were not known by both officers until after the arrest.

The mere fact that the defendant Swift’s name was used in the questioning of Officer Smock did not substantially prejudice the defendants’ case. Officer Brown had previously identified defendant Swift as one of the men he saw fleeing the record shop. Officer Smock had earlier testified that he had seen one man leaving the record store who was wearing a particular sort of shirt and that he subsequently placed him under arrest. He further testified that when he arrested Robert Swift the defendant was wearing the same sort of shirt that he had noticed one of the burglars to be wearing. In the absence of a clear abuse calculated to prejudice the defendant’s rights, a verdict should not be disturbed on these grounds. State v. Terregano, 336 So.2d 859 (La.1976).

The assignment is without merit.

Assignment of Error No. 5

The defendants assign as error the trial judge’s ruling allowing the State to introduce photographs of the defendants to show their dress on the night of the burglary. They maintain that the best evidence rule, R.S. 15:436, required the prosecution to introduce the clothes worn by the defendants rather than a photograph of the garments.

In State v. Bennett, 341 So.2d 847 (La. 1976), this court held that it was not reversible error for the State to introduce the photograph of a stolen watch even if to do so violated the best evidence rule unless the defendant could show that prejudice thereby resulted to him. In the instant case the defendants have not attempted to show what prejudice to them resulted from the prosecution’s introduction of the photographs rather than the clothes.

This assignment is without merit.

Assignment of Error No. 6

The defendants argue that the trial court was in error in allowing the State to lead its own witness. It is contended that this violation of R.S. 15:277 constitutes reversible error.

During the defense examination of Mrs. Patterson, the mother of one of the defendants, she stated that Officers Brown and Smock came to her house after the burglary on an unrelated incident and asked her if a person staying at her home, one Milton Wells, was one of the defendants, Robert Swift. Since the police identification of the defendants was of great importance to the State’s case, Officer Smock was called on rebuttal to refute this potentially damaging testimony and the following exchange ensued:

“Q And, did you at anytime tell Mrs. Patterson that you thought this other unknown subject—
BY MR. ALFORD:
—I’m going to object. He’s leading his witness.
BY MR. NORIEA:
Your Honor, I can ask him if he made a statement or if it was made in his presence.
BY MR. ALFORD:
He can ask him what he did and what he said, but he can’t lead him.
BY THE COURT:
Alright, but, this is a rebuttal witness, now.
BY MR. ALFORD:
But, he still—
BY THE COURT:
—Is he going to ask him something that somebody has testified to?
BY MR. NORIEA:
Yes, sir.
BY THE COURT:
That he wants contradicted?
BY MR. NORIEA:
Yes, sir.
BY THE COURT:
Well, then, he has a right to ask the question.”

From the record it appears that the prosecutor was not trying to lead the witness by suggesting an answer to him but was merely referring him to the prior testimony. Even had this question been improper, the defendants have failed to show any prejudicial effect that the question had on their defense. Although counsel should not be permitted to mold the witness’ testimony, a verdict should not be reversed in the absence of a clear abuse calculated to prejudice the accused’s rights. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Washington, 294 So.2d 794 (La.1974).

The assignment is without merit.

Assignment of Error No. 1

The defendants allege that it was reversible error for the trial court to allow the prosecutor to argue issues beyond the scope of testimony of the witnesses.

Article 774 of the Code of Criminal Procedure provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.”

The defendants contend that the prosecution violated this provision of the Code by arguing the reasons for the lack of fingerprints at the scene of the burglary. However, from the record it appears that at trial testimony was adduced to the effect that a crowbar used in entering the store and equipment which the burglars were holding when the police spotted them were not dusted for fingerprints. One police officer also testified concerning the types of surfaces which were good for taking fingerprints. After such testimony, argument concerning the procedure for taking fingerprints does not appear to go outside the scope of the evidence. Moreover, our jurisprudence is clear that even in the presence of improper argument a verdict should not be reversed unless the court is convinced that the jury was influenced by the remarks. and that they contributed to its verdict. State v. Crumholt, 357 So.2d 526 (La. 1978); State v. Lee, 340 So.2d 180 (La.1976). In this instance the defendants have made no such showing.

This assignment is without merit.

The convictions and sentences are affirmed.

SUMMERS, J., concurs.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

Although I concur in the majority’s determination that the new rule allowing defendants to question prospective jurors about their prior service should not be applied retroactively, I do not agree that the right to question them applies only to those prosecutions begun after State v. Holmes was rendered. The general rule to question jurors on the subject was recognized in State v. Wright, 344 So.2d 1014 (La.1977), rendered April 11, 1977, and should be applied to trials begun after that date.

      . In State v. McGhee, 350 So.2d 370 (La.1977), the issue was not decided because other grounds served for a reversal. The question was not decided in State v. Singleton, 352 So.2d 191 (La.1977), because defense counsel did not question any juror concerning his prior voting.

      . R.S. 15-277 provides:
      “A leading question is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one’s own witness, unless such witness be unwilling or hostile.”

      .R.S. 15:278 provides:
      “Neither upon direct nor cross-examination is it permissible to propound a question which assumes as true that which the jury alone are charged with finding, or which assumes as proven facts which have not been proven, or which assumes that particular answers have been given that have not been given.”

      . R.S. 15:436 provides:
      “The best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced.

      . See note, 2, supra.


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    Clifford BOSWELL v. ROY O. MARTIN LUMBER CO., INC.
    No. 61921.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Roy B. Tuck, Jr., Leesville, for plaintiff-applicant.
    Charles S. Weems, III, Gold, Little, Simon, Weems & Bruser, Alexandria, for defendant-respondent.
   SANDERS, Chief Justice.

This litigation involves damages for timber trespass.

Boswell, the plaintiff, sold Martin Lumber Company all hardwood, cypress, and pine trees eight inches and larger in diameter on his fifty-acre tract. During the term of the timber deed, the defendant injected thousands of trees ranging from two to twenty-two inches in diameter with a herbicide, killing them. The plaintiff sued, alleging trespass and praying for damages for loss of timber, for destruction of usefulness of land as a wildlife habitat, and for humiliation, mental anguish, aggravation, and embarrassment.

The district court awarded the plaintiff $5,000 for general damages. In assessing this award, it considered “the amount of acres involved, the denuded condition of the land, the effect this situation has on a sole proprietor who is obviously over fifty years of age.” The defendant appealed. The Court of Appeal reduced the award to $500, a “fair and adequate amount.” La.App., 355 So.2d 33 (1978). We granted plaintiff’s application to review this judgment. La., 357 So.2d 1154 (1978).

Louisiana Civil Code Article 1934(3) provides in pertinent part:

“In the assessment of damages . in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury . . . .”

In Anderson v. Welding Testing Laboratory, Inc., La., 304 So.2d 351 (1974), we set forth the applicable principles as follows:

“The trier of fact is granted much discretion in the award of general damages, i. e., those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or lifestyle which cannot really be measured definitively in terms of money. [Citations deleted.]
“Our jurisprudence has established certain principles of review of such awards by the appellate courts, in their performance of the fact-review function assigned to them by the Louisiana constitution. [La.Const. Art. 5, §§ 5, 10 (1974).] La. Const. Art. VII, Sections 10, 29 (1921, as amended in 1958). These principles, as extensively summarized recently in Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La.1974), include:
“The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. The awards made in other eases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.”

See also Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

In the present case, without the consent or knowledge of the plaintiff, defendant’s employees injected 6,220 trees with herbicide. Those less than eight inches at the stump numbered approximately 5,000 and were not subject to the timber deed. Virtually all trees on plaintiff’s land less than eight inches in diameter were killed. (Trees injected included white oak, red oak, black gum, sweet gum, maple, beech, ash, hickory, iron wood, winged elm, and dogwood.) At the time of trial, ninety-nine percent of the trees injected were dead, most had fallen, and some fallen trees blocked a stream on the property.

The plaintiff testified that the falling trees rendered walking through his property hazardous. Loss of the trees also rendered the property unsuitable for squirrel hunting. He testified:

“It was real good squirrel territory [prior to the deadening] on account of them beeches and things in there, it was a real good swamp to hunt in. About as good as we’ve got anywhere around.” [Tr. p. 12.]

The record reflects that the plaintiff was emotionally upset about the deadening. One witness who regularly saw the plaintiff testified that he frequently complained about “the injustice done him” and his loss of hunting ground. Undoubtedly, the plaintiff suffered considerable mental pain and anguish.

We conclude that the trial court’s award fell within the range of its discretion.

The plaintiff also attacks the propriety of the lower courts’ disallowing his evidence of the value of young timber because it was too speculative. See Quatre Parish Co. v. Beauregard Parish School Board, 220 La. 592, 57 So.2d 197 (1952). Although we entertain doubts concerning the ruling’s correctness, we find it unnecessary to consider it. We have reinstated the full award of the trial court. As the plaintiff failed to appeal or answer the defendant’s appeal, the law precludes us from increasing the award in his favor. LSA-C.C.P. Art. 2133; Succession of Babin, 213 La. 950, 35 So.2d 864 (1948); Parish of East Baton Rouge v. Harrison, La.App., 260 So.2d 106 (1972).

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside and the judgment of the district court is reinstated and made the judgment of this Court.

      . This deadening process, commonly known as Timber Stand Improvement, allows for more growth space for future crops.


author: PER CURIAM.

text:
    STATE of Louisiana v. James READY.
    No. 61926.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    H. James Lossin, Sr., Jonesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falken-heiner, Dist. Atty., William G. Avery, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant James Ready was convicted by a twelve person jury of simple burglary, La.R.S. 14:62, and sentenced to serve three years at hard labor. The district court suspended his sentence and placed him on three years active probation with special conditions.

On appeal, defendant relies upon two assignments of error for a reversal of his conviction and sentence.

We have reviewed the record and conclude that no reversible error was committed. The defendant’s conviction and sentence are affirmed.


author: TATE, Justice.

text:
    STATE of Louisiana v. Rickie WASHINGTON.
    No. 61931.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Harold Douglas, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., Robert F. Barnard, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Washington was convicted of simple burglary, La.R.S. 14:62, and sentenced to five years’ imprisonment at hard labor. His appeal raises seven assignments of error.

As will be seen, we find no reversible merit to any of them, although the case must be remanded for sentencing to allow credit for time served.

The most serious issues are raised by Assignments 2 and 3 (disparate treatment of state and defense challenges for cause of prospective jurors) and by Assignment 6 (“clarifying” questions and statements by the trial court, which were unfavorable to the defense).

Without detailing the circumstances, we will state that the appellant’s contentions are substantial. Ultimately, however, we do not find that they require reversal:

With regard to the first contention, we are unable to say the trial court abused its discretion in finding that one juror had rehabilitated herself (in rejecting a defense challenge for cause) and that the other jur- or had not (in sustaining a defense challenge for cause), although in both instances the issue is close.

With regard to the second contention, the trial judge’s clarifying questions came perilously close, during his repeated interruptions of the defendant’s cross-examination of a state fingerprint expert, to interrogation emphasizing favorable aspects of the state’s case more appropriate to redirect examination by the prosecutor. Nevertheless, we are unable to find, on the record as a whole, that the court’s questioning of this fingerprint expert was so substantially prejudicial to the defendant as to have contributed to the jury’s finding of his guilt. See La.C.Cr.P. art. 921.

The other contentions do not present substantial issues regarding reversal of the conviction:

Assignment 1 : The trial court erred in denying a preliminary examination, see La.Const. of 1974, Art. 1, Section 14 and La.C.Cr.P. art. 292 (1974), but the issue is moot after conviction, at least in the absence of prejudice (and none is shown). State v. Redfud, 325 So.2d 595 (La.1976);

Assignment 4: Only the wife testified (her husband was out of town when the burglary occurred) that no one was given permission to enter the home by herself or her husband. However, her testimony and the circumstances (entry despite a locked door, a broken window, and a ransacked dwelling) was evidence of an “unauthorized entering,” an essential element of the crime, La.R.S. 14:62. We find no merit to the defendant’s argument that this essential element was not proved because the husband himself did not also testify that he had not given consent;

Assignment 5: We find no abuse of discretion in the trial court’s discretion in permitting the state to recall a state witness, shortly after it had rested (but before argument), to testify briefly as to security conditions in the state crime laboratory. See La.C.Cr.P. art. 765(5); State v. Bias, 337 So.2d 426 (La.1976). See also State v. Ardoin, 340 So.2d 1362 (La.1976).

However, by Assignment 7, the defendant correctly urges that the trial court, in sentencing him, failed to allow him credit for time he spent in custody on the present charges prior to the imposition of sentence. La.C.Cr.P. art. 880 (1970).

Decree

Accordingly, we affirm the conviction, but we set aside the sentence and remand this case for re-sentencing in accordance with law.

CONVICTION AFFIRMED; SENTENCE SET ASIDE, AND CASE REMANDED FOR RE-SENTENCING.

      . In discussing them, we will use the numbering as argued in the appellant’s brief, rather than that initially given to them when filed in the trial court.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Wilman E. GUILLORY, Jr.
    Nos. 61943, 61944.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Jack Rogers, Lake Charles, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Nick Pizzolatto, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

Wilman E. Guillory, Jr. was charged in two separate bills of information with simple burglary, in violation of R.S. 14:62, and theft, in violation of R.S. 14:67. On November 12, 1974 he pleaded guilty to both charges and was sentenced to concurrent sentences of two years at hard labor on the burglary charge and one year at hard labor on the theft charge. Execution of the sentences was suspended and the defendant was placed on supervised probation for a period of two years to end on November 12, 1976. C.Cr.P. 893.

On October 19,1976 Guillory was charged with violating the conditions of his probation and was brought before the court for a violation hearing pursuant to Articles 899 and 900 of the Code of Criminal Procedure. At the hearing defendant stipulated that the probation officer’s report was true and admitted having violated the terms and conditions of his probation. The court modified the conditions of the defendant’s probation and extended the probation term for an additional two years.

On January 24, 1978 defendant was brought before the district court as a probation violator. Guillory admitted the violation, and the district court subsequently revoked his probation and committed defendant to serve the original sentence imposed. Defendant’s application to this court under our supervisory jurisdiction was granted, 359 So.2d 633 (La.1978). The defendant asserts one assignment of error to vacate the revocation of probation and the imposition of the prison sentence.

Defendant’s contention is that the trial court is not authorized to extend the period of probation beyond that period initially established. Therefore, according to Guillo-ry’s position, his probation expired on November 12,1976, and the revocation hearing held on January 24,1978 was without effect because it occurred after the original period of probation expired.

Under the terms of Article 900 of the Code of Criminal Procedure, a trial judge who discovers a violation of a condition of probation may take one of several steps to rectify the situation:

“After an arrest or service of a summons pursuant to Article 899, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing. The hearing may be informal or summary. If the court decides that the defendant has violated, or was about to violate, a condition of his probation it may:
(1) Reprimand and warn the defendant;
(2) Order that supervision be intensified;
(3) Add additional conditions to the probation; or
(4) Order that the probation be revoked. In the event of revocation the defendant shall serve the sentence suspended, with or without credit for the time served on probation in the discretion of the court. If the imposition of sentence was suspended, the defendant shall serve the sentence imposed by the court at the revocation hearing.”

Clearly subsections (1) and (2), which concern reprimands and intensified supervision, cannot be relied upon by the State as authority to extend a period of probation. Under subsection (4) the trial court is authorized to impose sentence on the probation violator, but only if the imposition of the sentence, and not its execution as in the instant case, was suspended by the trial court. Therefore the issue becomes whether the extension of the probation period by two additional years can be considered an “additional condition” added to the probation within the purview of subsection (3).

The provisions of Article 895 detail the types of conditions which can be imposed on probation:

“A. When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following: That the defendant shall:
(1) Make a full and truthful report at the end of each month;
(2) Meet his specified family responsibilities;
(3) Report to the probation officer as directed;
(4) Permit the probation officer to visit him at his home or elsewhere;
(5) Devote himself to an approved employment or occupation;
(6) Refrain from owning or possessing firearms or other dangerous weapons;
(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;
(8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; or
(9) Remain within the jurisdiction of the court and get the permission of the probation officer before any change in his address or his employment.
B. In felony cases, an additional condition of the probation may be that the defendant shall serve a term of imprisonment without hard labor for a period not to exceed one year.
C. The defendant shall be given a certificate setting forth the conditions of his probation and shall be required to agree in writing to the conditions.”

In Article 895, the word “condition” appears to relate to stipulations exacted from the probationer concerning his conduct during the probationary period; no reference is made to an extension of any period of time as a condition of probation. Moreover, the silence of Article 895 on this matter has added relevance in light of the provisions of Article 893 which state in pertinent part: “The period of probation shall be specified and shall not be less than one year nor more than five years.” (Emphasis added). The scheme of the legislature in this area becomes clear. Probation, if granted, must be for a specified time but may have any condition imposed upon it, with Article 895 as a guide of what sorts of conditions are desirable. If the defendant is found to have violated his probation, the trial court may reprimand him, increase the supervision of his probation, revoke his probation, or place additional conditions upon it. However, the trial court may not extend the period of probation; that action is not authorized as a sanction for probation violation under Article 900 and is, in fact, implicitly forbidden by Article 893 which requires the probation period to be specified and therefore not subject to change.

The State has argued in brief that to deny this power to the trial judge will result in a great loss of flexibility and in routine revocation of probation in cases such as this one, where the defendant has only a short time left of his probation to serve. On the other hand, we cannot conclude that the legislature did not intentionally withhold the grant of such “flexible” power because of a potential for abuse. Flexibility is provided by giving the judge the power to suspend the imposition of sentence during probation. Louisiana has adopted a scheme of determinate sentencing; under the proposal of the prosecution, the power to extend the period of probation could keep an offender under probation forever, without his having committed another offense — a result clearly not intended by the code.

Accordingly, the sentence of the defendant is vacated and the case remanded to the district court for further proceedings consistent with the views expressed herein.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Limmie WEST.
    No. 61948.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    John M. Blanchard, 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., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Limmie West was convicted after a jury trial of attempted armed robbery and sentenced to forty-nine years and six months at hard labor on July 2,1969. There was no appeal of the conviction and sentence but West did file a petition for a writ of habeas corpus in the district court the following year, alleging that his counsel conferred with him for only five minutes prior to trial. The petition set forth that the trial commenced after this short conference when the trial court denied a motion for continuance setting forth counsel’s inability to confer with West and his lack of knowledge of the facts of the case. After holding an evidentiary hearing the district court denied West’s petition, finding that defense counsel had adequate time to prepare for trial and determining that West and the attorney had conferred for more than five minutes. Writs were sought in this Court and denied.

Thereafter, West sought habeas corpus relief in the United States District Court for the Eastern District of Louisiana. The federal district court granted relief on December 17, 1971, finding that defense counsel’s representation of West was “. only perfunctory, without adequate preparation.” The State of Louisiana was ordered to retry West within thirty days, failing which West was to be released from custody. The State appealed the federal district court judgment and the Fifth Circuit affirmed, agreeing that the district court correctly found that West’s legal representation was so inadequate that he was denied his constitutional right to effective counsel. West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973). The state sought a rehearing which was granted en banc. On rehearing, the Fifth Circuit remanded to the federal district court for reconsideration of the claim of ineffective representation by West’s privately retained attorney in light of its decision in Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1975); West v. Louisiana, 510 F.2d 363 (5th Cir. 1975). The federal district court adjudged West’s counsel ineffective by Fitzgerald v. Estelle standards, and again ordered retrial within thirty days (or release, if the state elected not to timely retry West).

The state chose to retry West rather than appeal the adverse judgment, and West was again convicted after a jury trial in 1975 and sentenced to serve forty-nine years and five months at hard labor on November 14, 1975. West appeals this conviction and sentence, relying on one assignment for a reversal.

The facts of this case, and the trial testimony which we deem necessary for a proper resolution of the issue presented on appeal, are as follows:

At approximately 2:00 P.M. on April 25, 1969, five men were congregated near the meat counter in the rear of Jeanfreau’s Supermarket on Mazant Street in New Orleans. The group included: the owner, Je-anfreau; the butcher, Donnely; a salesperson, Patterson; and two patrons, Moraga and Knight. As the men stood talking in the vicinity of the meat counter’s cash register the defendant intruded, brandishing a gun. Some of the men present heard the defendant mumble unintelligibly and witnessed him fire two shots which struck the butcher, who had stepped away from the group to answer the telephone. After firing the two shots defendant fled from the store. The owner, Jeanfreau, chased the defendant and exchanged fire with him but the defendant escaped. West was identified by Patterson a few days after the incident, when the police conducted a photographic line-up at the supermarket. On May 5, 1969, West was arrested and was subsequently identified in a corporeal lineup by Jeanfreau, Patterson, Moraga and Knight. Only Donnely, who testified that he at no time saw the person who shot him, was unable to identify West as the person who committed the April 25, 1969 offense.

In testifying for the state, Patterson related that he first saw West when he turned away from the conversation in which he was engaged in response to a sound of mumbling. On turning, he was confronted with a gun in his face and reacted by stepping behind the meat counter and shouting a warning to the others. He dived for the floor, at which time the gunman stepped behind the counter and fired two shots, striking Donnely, the butcher. Patterson related that he carried in his memory an indelible impression of the gunman’s face, which enabled him to positively identify West in the photographic and corporeal line-ups. He also made an unequivocal in-court identification at the trial.

Moraga’s testimony followed that of Patterson at the trial. His first glimpse of the defendant was also prompted by mumbling he heard. On turning in the direction of the sound Moraga saw the armed defendant fire and observed the butcher as he fell. Moraga stated that he clearly viewed the gunman whom he subsequently identified at a line-up. In observing the gunman during the commission of the offense, Mor-aga noticed a band-aid on the man’s neck. On cross-examination Moraga refused to admit that he could have mistakenly identified West as the perpetrator of the crime. He persisted in his view that there was no possibility that his identification was in error, and related that he clearly viewed West during the short time he was in the store. Before leaving the stand, Moraga identified West in court, stating that he was the person who committed the crime being prosecuted.

Knight, one of Jeanfreau’s patrons, testified at the trial for the state. He first noticed West when the gunman exhibited his gun, mumbled something and then shot the butcher. Knight, like Patterson and Moraga who testified before him, related that he had identified West at the line-up on the basis of his observation of the defendant at the time of the offense. He reported that he had seen West in the store’s vicinity on prior occasions and recalled that at the time of the commission of the crime West had a band-aid on his neck. On cross-examination defense counsel questioned Knight with regard to his stated belief that he had seen West in the neighborhood prior to the crime and Knight related that West had two brothers who had worked with him at the cement plant, where he had been employed before his retirement. Asked if he believed the two men to whom he referred to be the defendant’s brothers, Knight replied affirmatively and, when asked who they were, stated “West”. Knight persisted in his impression that the names of the two men with whom he worked were West and, asked if he could be mistaken about the men being the defendant’s brothers, answered that he was pretty sure they were his brothers, that they had the same name.

A witness named Mayville, employed in his parents’ grocery near the Mazant Street location of Jeanfreau’s, also testified for the state. He related that shortly before the time of the commission of the crime a man entered his store to buy band-aids. Lacking sufficient money with which to pay for his purchase, the man went outside to his vehicle to get more change. Mayville observed the man approach a truck containing two people, from whom he obtained more money with which to purchase the bandages. This testimony will be revealed by later discussion to have corroborated the testimony of another party (Sturgis), the admission of which is urged as error upon this appeal.

In addition to the testimony outlined above, the State introduced the testimony of Jeanfreau, the fourth person who identified West as the perpetrator, in the form of his testimony given at West’s prior trial for this offense. Between the times of the first and second trial Jeanfreau had died; thus, he was unavailable to testify at the second trial. The State also introduced the testimony of one Charles Sturgis by means of reading into the record a portion of the prior trial transcript; Sturgis had driven West and a companion to the vicinity of the Jeanfreau store moments before the offense. He had complied with the request of West’s companion that he wait for their return. In addition to the obvious significance of Sturgis’ testimony, he related, a purchase by him of band-aids, one of which he stated was “put on” in his presence, by West. Sturgis, like Jeanfreau, died in the interval between the first and second trials, and thus was unavailable to testify.

After presenting testimonial evidence relating the deaths of Jeanfreau and Sturgis, the state introduced the death certificates. The prosecutor then offered into evidence the earlier trial testimony of Jeanfreau, to which the defense objected. The jury was removed at defendant’s request and the court entertained argument relating that because the results of the trial at which Jeanfreau testified initially were reversed due to the federal court’s determination of defense counsel’s lack of preparation, there could not have been adequate cross-examination of Jeanfreau. This lack of adequate cross-examination was argued to preclude admission of Jeanfreau’s testimony. Admission of the deceased Jeanfreau’s testimony would deny West his constitutional rights to cross-examination and confrontation, defense counsel argued.

Aware that the state planned to offer the earlier trial testimony of the deceased Stur-gis as well, defense counsel sought and was granted leave to argue his objection to this proffer, too. Defense reurged the argument made in connection with the offer of Jeanfreau’s .testimony, adding that Sturgis’ testimony was considered most damaging and suggesting that the record “. further demonstrates areas of cross-examination that could have been gone into, and were not gone into, that we would like to go into at this trial, namely, that he [Stur-gis] was arrested, he was an accomplice, etc., etc., etc.”

The trial court ruled that testimony from a prior proceeding could be used provided the witness was unavailable and the defendant had had the right of cross-examination when the proffered testimony was initially given. Noting that even preliminary examination testimony is permitted to be introduced when the requisite conditions are met, the court observed that such a hearing is a “first stage” proceeding at which defense counsel is usually not as well acquainted with the facts as he will be later. The court opined that the testimony proffered in this case is better than preliminary hearing testimony, notwithstanding the determination that defense counsel at the prior trial was perhaps not prepared, and permitted the introduction of the offered testimony of Jeanfreau and Sturgis, which was read into the record.

This Court has determined in State v. Kaufman, 304 So.2d 300 (La.1974) that introduction of testimony given at prior hearings may be introduced, without offending the confrontation and cross-examination clauses of the federal and state constitutions, provided the following conditions are met:

“1. The defendant must have been represented by counsel at the earlier hearing; 2. The witness testified under oath; 3. The witness was cross-examined, or else there was a valid waiver of the right to cross-examination; 4. At the time of the trial, the witness (whether out-of-state or not) is unavailable or unable to testify; and 5. The state has made a good-faith diligent effort to obtain the presence of the witness, including by its out-of-state subpoena powers where appropriate.” (citations omitted)

Thus, we must determine whether all relevant factors set forth in Kaufman, supra, are satisfied here.

Jeanfreau’s testimony merely echoes that given prior to its introduction at the present trial by Patterson and Moraga, except that it adds yet another positive lineup and in-court identification based on an adequate opportunity to view the perpetrator. The cross-examination conducted at the earlier trial merely sought to establish whether others were present in the store with Jeanfreau besides the group of friends and whether West had spoken to Jeanfreau during commission of the offense. It was not extensive cross-examination.

Sturgis’ testimony related his acquaintance with West, his meeting with West and a companion on the afternoon of the offense and the request of West’s companion that they be driven to the grocery (where the witness Mayville was employed) to buy band-aids. Sturgis told how he purchased the band-aids at the request of West’s companion, testified that West and the companion had cuts, and stated that West “. . . put one [band-aid] on.” Sturgis then related that he drove West and his confederate to a location within a block of Jeanfreau’s where, ostensibly, the unnamed passenger was to visit someone’s house. West and the other man left Stur-gis’ truck and Sturgis awaited their return, as requested. Sturgis claimed that West returned to the truck, followed by his companion. Sturgis testified that he heard shots before the two returned and stated that West’s friend approached “running hard”, entered the truck and told him (Stur-gis) to pull up. According to Sturgis, they effected a quick departure and later parted company. Sturgis disclaimed any involvement in the crime which took place at Jean-freau’s and opined that West likewise was not involved. Sturgis related West’s report that he and his friend entered the store, unaware of the incident, and soon people began shooting at them. Asked if West shot back in self-defense, Sturgis gave a negative answer, stating West had no gun. Sturgis opined that West’s companion had a gun, and admitted that West was in the other man’s company, but persisted in stating his belief that West was unaware of what was transpiring.

On cross-examination of Sturgis at the earlier trial defense counsel sought to explore the nature and extent of Sturgis’s involvement. Counsel for defense established that Sturgis had initially been charged with the same offense for which West was being prosecuted and elicited an admission that Sturgis was released after giving a statement substantially in accord with his testimony. On re-cross, defense determined Sturgis’ lack of knowledge of the events within Jeanfreau’s store.

While it must be conceded that counsel at the first trial failed to conduct cross-examination aimed at discrediting Jeanfreau’s identification of West (the only portion of the Jeanfreau testimony with arguably more than cumulative effect) the mere forbearance from inquiry with such a design does not, in our view, establish inadequate cross-examination. The record does not establish how many state’s witnesses had preceded Jeanfreau at the earlier trial, but the pagination of the transcript of Jeanfreau’s testimony indicates that substantial prior testimony was presented. The experience of defense counsel in the second trial reveals what often happens when an identification is attacked on cross-examination— the witness becomes more positive and adamant and his identification is established as unassailable. We cannot say, in view of the exceedingly narrow scope of direct examination of Jeanfreau (revealing merely cumulative matter — even his own positive line-up and in-court identification were really cumulative) and the potential for bolstering identification inherent in all attacks thereon, that the sketchy cross-examination of Jeanfreau and the failure to probe the identification evidence were inadequate cross-examination.

Nor can we pronounce the earlier trial cross-examination of Sturgis ineffective. A review of the cross-examination of Sturgis clearly exhibits that the defense actually inquired into the areas which counsel at the present trial maintained had not been explored at the first trial — the arrest of Stur-gis and his possible involvement in the offense being prosecuted.

Contrary to the defense claims at this second trial and in brief on this appeal, the federal courts did not decree that cross-examination at the earlier trial was inadequate. The federal court determination was one of general ineffectiveness due to lack of preparation and it was conceded by the federal district court that “. . . defense lawyer’s improvisations [may indeed have been] ingenious.”

We here determine that the purposes of confrontation were not so thwarted, nor the right of confrontation so significantly undermined, as to warrant a reversal of this conviction and sentence based on the introduction of this testimony from a prior trial. In reaching our decision, we are no doubt influenced somewhat by the overwhelming strength of the State’s case (apart from the testimony of Jeanfreau and Sturgis). But this factor alone would not justify a denial of relief if the rights of confrontation and cross-examination had been materially impaired. Testing the testimony of Jeanfreau and Sturgis against the conditions outlined in Kaufman, supra, we determine that all conditions set forth therein have been met. The purposes underlying the guarantee of confrontation, as set forth in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) were enunciated in Kaufman:

“ ‘Confrontation: (1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the “greatest legal engine ever invented for the discovery of truth”; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.’ (Italics ours)”

We find that the purposes of confrontation were achieved in the earlier trial; establishment of the factors conditioning admission set forth in Kaufman were properly determined to have been met here.

Under the circumstances present here, the trial court did not err in allowing into evidence the prior trial testimony of the deceased witnesses Jeanfreau and Sturgis.

Decree

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

AFFIRMED.

      . We note that in this second trial defense failed, both in cross-examination and in presentation of its case, to undermine in any way the content of the testimony given upon the first trial by Jeanfreau and Sturgis, notwithstanding ample opportunity to discover any evidence which would have neutralized or nullified its effect. At best, adequately prepared counsel presented a questionable alibi defense which was rejected by the jury.


author: CALOGERO, Justice. DENNIS, J., SUMMERS, Justice

text:
    STATE of Louisiana v. Leroy FRANKS and Roger Dale Humphries.
    No. 61953.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      James W. Berry, F. J. Bruyninckx, III, Rayville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Donald K. Carroll, Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendants, Leroy Franks and Roger Dale Humphries, were charged by bill of information with simple burglary, a violation of R.S. 14:62. After a jury trial, both defendants were found guilty. Leroy Franks was sentenced to three years at hard labor. Roger Dale Humphries was also sentenced to three years at hard labor but his sentence was suspended and he was placed on active supervised probation. For reversal of their convictions and sentences, defendants rely on two assignments of error.

The state’s case is based on the testimony of the victim, the sole eyewitness to the burglary other than the perpetrators and an admitted accomplice, Jerry McWilliams. That testimony indicates that defendants, along with McWilliams, went to the victim’s home to sell furs. After no one answered and defendants looked around a nearby house, defendant Franks purportedly signaled to McWilliams with his hat. On that signal, McWilliams opened the back of the camper parked beside the victim’s house, removed furs from it, and placed them in a pick-up truck.

ASSIGNMENT OF ERROR NO. 2

Defendants contend that the trial court erred in failing to allow defense counsel to examine a police report from which Trooper Jerry Waters purportedly testified. At trial Waters testified that he received a call from the sheriff’s office to go to the residence of Fenton Robinson. As he approached the house, he saw another deputy talking to Franks and Humphries. Nearby was an orange pick-up truck with some furs or hides on stretchers on the floor. After the officers talked to Mrs. Robinson about what happened, they arrested defendants and Jerry McWilliams. During questioning Waters was apparently looking at a police report. After Trooper Waters had been fairly extensively questioned on direct by the state, on cross-examination by defendant the following colloquy occurred:

“Q. It that a report form that you have there with you, Trooper?
A. It’s just a standard report on arrest. It’s a standard form that we use. We just write up a synopsis of what happened.
Q. I’ve noticed that you’ve looked at it extensively. Are you testifying from it?
A. Well, yes sir, it’s been a year since this occurred.
Q. So you are, in effect, testifying from that form?
A. Well, I have a memory of what happened. But I’ve refreshed my memory from this report.
Q. It has been almost a year?
A. Yes sir.
Q. Your memory has grown a little vague in that time, hasn’t [it]?
A. Well, I deal with lots of cases in a year’s time.
Q. Quite a few? Don’t you?
A. Yes sir.”

Defense counsel then moved to examine the officer’s written report and the state objected, contending that the witness was testifying from his refreshed recollection. The trial judge then questioned Trooper Waters about his reliance on the report and elicited the response that the witness was testifying from his recollection of the incident, not from the notes themselves.

Police reports are considered confidential and generally the state may not be compelled to produce them for inspection. State v. Banks, 341 So.2d 394 (La.1976); State v. Square, 257 La. 743, 244 So.2d 200 (La.1971). However, when an officer’s testimony at trial is from his report rather than from his memory, that is, if the testimony is the product of past recollection recorded rather than present memory refreshed, the trial judge should require production of the report for defense inspection. State v. Tharp, 284 So.2d 536 (La.1973); State v. Foret, 315 So.2d 278 (La.1975). The same ruling should follow where it is shown that a witness has referred to his report or notes, with him on the stand, even though presumably only to refresh his memory while testifying. State v. Perkins, 301 So.2d 591 (La.1975).

The witness at the outset rather candidly acknowledged that he was testifying from his report. Tharp would therefore require its production on motion of defendant. Even assuming, however, that he had simply refreshed his memory, which is what he related when quizzed further, the report should have been produced because his memory was refreshed by reference to a report with him while he was testifying. State v. Perkins, supra.

In this case it was particularly critical for the defense to have the opportunity to view that report in light of the testimony of the critical eyewitness concerning her observations of the conduct of defendants and of McWilliams, the only perpetrator who entered the truck, and concerning what she told the investigating officers about the incident upon their arrival at the scene.

The assignment has merit.

Inasmuch as we are reversing this conviction on the basis of a meritorious Assignment of Error No. 2, it is unnecessary that we determine whether a second assignment argued in brief, Assignment of Error No. 3, presents reversible error. In that assignment defendants argue that the trial court erred in refusing to allow defense counsel to call the district attorney as a witness. Since the case may be retried when remanded we deem it advisable to comment briefly on that assignment. Neither the district attorney in his stated opposition nor the trial judge in his ruling have cited a plausible reason for disallowing defendant’s examining the district attorney (in an effort to impeach McWilliams), concerning whether that witness had made a plea bargain agreement with the state before testifying. The examination should have been permitted. Defendant may attempt to impeach McWilliams, who denied favorable state treatment, by examining “any other witness” to establish McWil-liams’ bias or interest. R.S. 15:492. And the district attorney is likely the only witness to such possible plea bargaining arrangement other than McWilliams’ attorney, whose knowledge concerning same is privileged.

Decree

For the foregoing reasons the convictions and sentences are reversed and the case is remanded for retrial.

REVERSED AND REMANDED.

SUMMERS, J., concurs in part and dissents in part.

DENNIS, J.,

concurs, being of the opinion that the reversal should be based upon the denial of defendant’s right to call an impeachment witness rather than upon the grounds of the trial judge’s request to let defense counsel examine the police officer’s investigation report. In my opinion the testimony is not clear that the officer referred to the report to refresh his memory while on the stand and the trial judge’s determination of this issue should be upheld.

SUMMERS, Justice

(concurring in part and dissenting in part).

While I agree the conviction should be reversed on the basis of Assignment of Error No. 2, I do not agree that the defense has the right to call the District Attorney as a witness under the circumstances of this case.

      . Defendants have filed three assignments of error but have not briefed Assignment of Error No. 1; it is therefore considered abandoned. State v. Burge, 359 So.2d 616 (La.1978).


text:
    STATE of Louisiana v. James LACOUR et al.
    No. 62082.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Jacob L. Karno, Jacob L. Karno, a Professional Law Corp., Metairie, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Ma-moulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiffs-relators.
   CALOGERO, Justice.

Defendant, James Lacour, was charged by bill of information with armed robbery, a violation of R.S. 14:64. He pled guilty to the charge, and on September 16, 1977, he was sentenced to serve five years at hard labor. The trial judge, apparently relying on the second paragraph of La.Code of Crim.Pro. art. 893, suspended the sentence and placed defendant on supervised probation for five years on the condition that he enter and complete a drug rehabilitation program at Odyssey House. On January 11,1978 the state filed a motion to set aside an illegal sentence in the district court, which was denied. The state then made application to this Court for a review of the district court’s ruling. We granted the state’s writ to determine whether suspension of this defendant’s sentence on the condition that he participate in a drug rehabilitation program is contrary to law.

Louisiana Code of Criminal Procedure Article 893 in the first paragraph provides for the suspension of sentence of a first offender on a felony conviction, as follows:

“When it appears that the best interest of the public and of the defendant will be served, the court, after conviction of a felony for which the punishment is with or without hard labor or a felony which is a violation of the Controlled Dangerous Substances Law of Louisiana, noncapital felony, may suspend for the first conviction only the imposition or execution of any sentence, where suspension is allowed under the law and in either case place the defendant on probation under the supervision of the division of probation and parole supervision. The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.” (emphasis added)

Under this provision, a defendant must meet two conditions to be eligible for a suspended sentence: he must be a first offender and suspension must be allowed by the law under which he is convicted.

The second paragraph of Article 893 applies to those who are “multiple offenders.” It provides in pertinent part:

“The court under the same conditions and by the same procedure as provided for above may suspend the execution or imposition of the sentence of a multiple offender and place the defendant on probation if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs, however if for any reason the defendant is rejected by said program he shall be returned to the custody of the court which imposed the sentence and the sentencing judge shall order the sentence be executed. Rejection by said program shall be a violation of the defendant’s suspended sentence.” (emphasis added)

Under this paragraph, a “multiple offender” may receive a suspended sentence and be placed on parole if he intends to participate in a program authorized by the Federal Narcotics Rehabilitation Act or another federal or state rehabilitation program. Although this paragraph does not specify that the crime must be one for which sentence may be suspended, suspension is allowed only “under the same conditions and by the same procedure as provided for above,” that is, as provided for in the preceding paragraph. That first paragraph authorizes suspension only if the statute under which a defendant is convicted allows for a suspended sentence.

Louisiana Revised Statute 14:64, the statute under which defendant was charged and convicted, expressly prohibits the suspension of sentences for those convicted of armed robbery. That statute provides in pertinent part:

“B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.” (emphasis added)

Because R.S. 14:64 expressly prohibits the suspension of the sentence for one convicted of armed robbery, defendant does not enjoy the opportunity for suspension of sentence afforded by Article 893 and his sentence is illegal.

In brief, defendant does not dispute the state’s argument that the sentence violates the prohibition of R.S. 14:64 nor that La.Code of Crim.Pro. art. 893 is inapplicable, but argues only that the revocation of his suspended sentence after a delay of almost a year would constitute cruel and unusual punishment.

Louisiana Code of Criminal Procedure Article 882 provides that an illegal sentence may be corrected “at any time by the court that imposed the sentence” and that a sentence may be reviewed as to its legality on the application of either the defendant or the state.

In this case, the state notified the defendant of its intention to apply for a remedial writ on September 21, 1977, only five days after the sentence was imposed. The state, however, did not file a writ at that time. The state thereafter filed a motion in the district court to set the sentence aside; that motion was denied February 23, 1978. The state again notified the defendant of its intention to apply to this Court on February 27, 1978 and did in fact apply for the writ on April 20, 1978. Any resulting prejudice to the defendant from the delay in the state’s application to correct the illegal sentence is insufficient to warrant affirming the trial judge’s denial of the motion. Consequently defendant’s illegal sentence must be vacated and the case remanded for sentencing in accordance with law and consistent with the opinion of this Court.

Decree

For the foregoing reasons, the denial of the state's motion to set aside the illegal sentence is reversed and ,the case remanded for resentencing in accordance with law.

RULING OF TRIAL COURT REVERSED; CASE REMANDED FOR RE-SENTENCING.

      . In this application, the state also seeks to set aside the sentence of Lacour’s co-defendant, Michael Groves, who also pled guilty and who also received a suspended sentence. Defendant Groves, however, was not present at the district court hearing on the motion to set aside the illegal sentence. By order of that court, the motion as to Groves was continued, to be reassigned. There is no indication in the record that this motion has been acted upon by the district court. Consequently, the legality of the suspended sentence of Groves is not before this Court in this writ application.

      . There is no evidence in the record of this case which indicates that defendant Lacour is a first offender or a multiple offender. The state has not alleged that he is a multiple offender nor has it charged him under the habitual offender statute, R.S. 15:529.1.


author: DENNIS, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Lance T. NOWELL.
    No. 62095.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Stewart M. Thomas, Jennings, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

Defendant Lance T. Nowell was charged by bill of information on March 15, 1978 with the commission of an aggravated battery, La.R.S. 14:34, which allegedly occurred on March 14, 1977. Defendant applied to the district court on March 29,1978 for a writ of habeas corpus, alleging that the delay of one year in bringing the formal charge had deprived him of the right to a speedy trial. The habeas petition was converted to a motion to quash and denied by the district court after a hearing held on April 3, 1978. We granted defendant’s application for a writ of review and reverse the ruling of the district court for the reasons hereinafter assigned.

In October of 1976, defendant was incarcerated in the East Baton Rouge parish prison on charges of simple escape and unauthorized use of a movable. While awaiting trial on these charges, defendant, together with two other inmates, was implicated in the stabbing injury of a deputy sheriff at the prison on March 14,1977. As a result, he was accused by affidavit of attempted aggravated escape and attempted first degree murder. When brought before the court on the next day, defendant named as his attorney Eugene Booth, who had been retained to represent him on the prior charges. After his court appearance, defendant was transferred to the Iberville Parish Prison for his own safety. Through inadvertence, Booth was not notified of the additional charges, but when he later learned of them he advised the court orally that he had not been retained to represent defendant on those charges and that defendant would require court-appointed counsel since he could not afford to hire an attorney. No action was taken by the court on this information.

On June 24, 1977, defendant pleaded guilty to the offense of simple escape. Pursuant to a plea bargain, the companion charge of unauthorized use of a movable was dropped and defendant received a sentence of six months 'imprisonment, with credit for time served. At that time defendant had been incarcerated for eight months and would have been released but for the pending attempted murder and attempted aggravated escape charges.

In February of 1978 defendant, not yet charged by bill of information or indictment and still unrepresented by counsel, wrote to the district court in East Baton Rouge Parish complaining of his plight. On March 2, 1978, in response to defendant’s letter, the court appointed Stewart Thomas to represent defendant. Thomas promptly asserted the deprivation of defendant’s right to a speedy trial.

The right to a speedy trial is guaranteed by both the federal and state constitutions. U.S.Const. Sixth Amend.; La. Const. Art. I, § 16. This right attaches when an individual becomes an accused, either by formal indictment or bill of information or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Fraise, 350 So.2d 154 (La.1977). In the present case the defendant was charged by police with attempted aggravated escape and attempted murder on March 14, 1977, and he has remained incarcerated since that date. The fact that the defendant was not formally charged by bill of information until a year later does not alter the fact that he became an accused when he was arrested and held by police. United States v. Marion, supra; State v. Smith, 357 So.2d 798 (La.1978); State ex rel. Miller v. Craft, 337 So.2d 1191 (La.1976).

In determining whether or not a defendant’s right to a speedy trial has been violated, this Court has not attempted to set any fixed time period. Rather, this Court has adopted the test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the United States Supreme Court weighed the conduct of both the prosecutor and the defendant in light of four factors: length of delay, reasons for delay, assertion of the right, and prejudice to the defendant. State v. Kemp, 359 So.2d 978 (La.1978); State v. Bullock, 311 So.2d 242 (La.1975).

In the present case almost twelve months elapsed between the defendant’s arrest and the date counsel was appointed to represent him. It is true that in some cases in which the defendant was represented by counsel this Court has held that even greater delays do not constitute a denial of the right to a speedy trial. See, State v. Kemp, supra; State ex rel. Miller v. Craft, 337 La. 1191 (La.1976); State v. Neyrey, 341 So.2d 319 (La.1976); State v. Moore, 300 So.2d 492 (La.1974). However, the length of delay which will be tolerated depends entirely on the circumstances of the individual case. Barker v. Wingo, supra. Because the lack of counsel effectively deprived the defendant of the ability to assert his right to a speedy trial, and because he has been incarcerated since his arrest, the length of the delay in the present case was sufficiently great to warrant examination of the other Barker factors.

The delay in the present case apparently was due to the State’s inability to secure the testimony of several inmate witnesses. At the hearing on the motion to quash the prosecutor explained that without their testimony it would be impossible to evaluate the State’s case against the defendant. There was no showing that the State deliberately postponed the trial in order to gain a tactical advantage over the defendant. Nevertheless, as between the defendant and the State, the ultimate burden rests on the State to bring the defendant to trial or otherwise dispose of the case. Barker v. Wingo, supra; State ex rel. Miller v. Craft, supra.

The third factor to be considered under Barker v. Wingo is whether or not the defendant asserted his constitutional right to a speedy trial. The record does not reflect that the defendant made any assertion of his right or otherwise attempted to speed up the trial proceedings. However, this cannot be weighed very heavily against the defendant in the present case. Defendant was seventeen years old, incarcerated, indigent, and, most significantly, unassisted by counsel. Under these circumstances the defendant’s failure to effectively assert his rights did not constitute a voluntary, knowing and intelligent waiver of his constitutional guarantee to a speedy trial.

Finally, we must consider whether or not the defendant was prejudiced by the delay. The trial court found that the defendant had shown no prejudice because he had not proved that his defense would be impaired by the lapse of time. In our opinion the trial court erred in failing to consider whether defendant had suffered any other type of prejudice. Undoubtedly, the impairment of a defendant’s ability to prepare his case is the most serious form of prejudice normally experienced by an accused whose trial is delayed. However, in State ex rel. Miller v. Craft, 337 So.2d 1191 (La.1976), this Court noted that prejudice can also occur in other ways:

“Inordinate delay may interfere with a defendant’s liberty, disrupt his employment, subject him to public obloquy, and create anxiety in him, his family and his friends. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).” Id. 1195.

While the defendant in this case did not offer any evidence of this sort of prejudice at the hearing on the motion to quash, it has been pointed out that “[t]hese factors are inevitably present in every case to some extent.” Barker v. Wingo, supra, 407 U.S. at 537, 92 S.Ct. at 2195 (Mr. Justice White, concurring). Moreover, it is not absolutely necessary to show actual prejudice in order to establish a denial of the right to a speedy trial. In Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), the Supreme Court stated that in Barker v. Wingo it had “expressly rejected the notion that an affirmative demonstration of actual prejudice was necessary to prove a denial of the constitutional right to a speedy trial.” Id. 414 U.S. 26, 94 S.Ct. 189, 38 L.Ed.2d 184.

Upon a careful consideration of the above factors as they apply to the circumstances of the present case, we conclude that defendant Lance Nowell was denied his constitutional right to a speedy trial. The only remedy available in this case is dismissal of the charges pending against the defendant. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); State v. Bullock, 311 So.2d 242 (La. 1975).

For the foregoing reasons, the ruling of the trial judge denying the motion to quash the bill of information is reversed, and the case is remanded to the Nineteenth Judicial District Court with instructions to the trial judge to dismiss the bill of information charging the defendant with aggravated battery.

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

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Defendant was in jail nine months from the time he could have been released from incarceration except for this charge. In weighing the conduct of both the prosecution and the defense in view of the length of delay, reasons for delay, assertion of the right, and actual prejudice to the defendant, I do not believe that defendant’s right to a speedy trial has been violated. Accordingly, I respectfully dissent.

      . In the meanwhile, the State had held a preliminary hearing in February, 1978 in the case against defendant’s alleged co-participants in the jail stabbing. At the hearing it was revealed that the State’s witnesses, primarily other inmates of the prison, could no longer remember the circumstances of the incident. The State accordingly abandoned those prosecutions. The case against the defendant, however, was not abandoned. On March 15, 1978, defendant was charged by bill of information with aggravated battery.

      . It is true that for the first three months after March 14, 1977, defendant was also being held on the prior, unrelated charges. The police charges imposed on March 14, 1977, however, carried much more serious penalties than the charges on which he was previously held. Moreover, defendant’s bond prior to March 14 was set at $3,000; after that date his bond was increased to $53,000. The additional restraint placed on defendant on March 14, 1977, engaged the right to a speedy trial immediately. It should also be emphasized that after June 24, 1977, defendant was held solely because of the charges which are the subject of the present suit.

      . It was as a result of these difficulties that the State ultimately charged defendant only with aggravated battery.

      . The analysis of defendant’s right to a speedy trial is highly influenced in the present case by the fact that defendant was without counsel for over one year. We do not reach the question of whether or not defendant’s right to effective assistance of counsel was denied in the present case. However, the fact that defendant did not have the guidance of an attorney throughout most of his incarceration goes far in explaining his failure to act.


text:
    LOUISIANA POWER AND LIGHT COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 62119.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      C. Frank Holthaus, Boren, Holthaus & Perez, Baton Rouge, for Claiborne Elec. Cooperative, Inc., intervenor-appellee.
    Andrew P. Carter, Eugene G. Taggart, George F. Riess, Monroe & Lemann, New Orleans, for Louisiana Power & Light Co., plaintiff-appellant.
    Stephen T. Victory, Robert W. Booksh, Jr., Liskow & Lewis, New Orleans, for Enterprise Products Co., intervenor and appellant.
   SANDERS, Chief Justice.

In early 1975, Enterprise Products Company contacted Claiborne Electric Cooperative, Inc. concerning electric service to Enterprise’s water well facilities in Bienville Parish. The specifications given by Enterprise included a requirement that Claiborne Electric Cooperative, Inc. furnish service to this facility within sixty days. Because of this requirement, Claiborne had to include a rephasing or reconduetoring of its single phase line that ran adjacent to Enterprise’s property and emanated from the Grambling substation. This time limitation would have resulted in heavier construction costs in rephasing and reconduetoring. Thus, Claiborne informed Enterprise that in order to supply service, Claiborne would require an advance payment of $26,000.

At this point, Enterprise ceased negotiations with Claiborne and started negotiations with the Louisiana Power and Light Company, Since Enterprise did not inform Claiborne that they were no longer interested in their service, Claiborne started the process to acquire a metering point for three phase electrical service near the Bien-ville Parish water well facility. Through Cajun Electric Power Cooperative, Inc., Claiborne arranged to obtain this metering point which would eliminate the plan to rephase and reconductor the single phase line and the $26,000 advance payment. With this new metering point, Claiborne could bring a three phase line from a preexisting three phase line emanating from the Arcadia substation.

On May 15, 1975, Enterprise entered into a contract with the Louisiana Power and Light Company for electric service for Enterprise’s water well facility. On July 2, 1975, Claiborne Electric Cooperative, Inc. filed a petition with the Louisiana Public Service Commission, complaining that the Louisiana Power and Light Company had made a contract with Enterprise Products Company which violated the Commission’s General Order of March 12, 1974, relating to duplication of electrical facilities. Although this petition was pending, the Louisiana Power and Light Company constructed a three phase electric line which connected with the pre-existing three phase line which originated at the Arcadia Substation. On December 3, 1975, the Public Service Commission held an evidentiary hearing and rendered judgment on February 17, 1976. The Commission, in Order No. U— 12842, held that the Louisiana Power and Light Company had violated the General Order of March 12, 1974, and ordered that Claiborne Electric Cooperative serve Enterprise’s Bienville Parish water well facility.

The Louisiana Power and Light Company immediately sought judicial review of the Commission’s decision. By stipulation of all the parties, the efficacy of Order U — 12842 was stayed during the pendency of this review. Enterprise Products Company intervened and aligned itself with the Louisiana Power and Light Company. Claiborne Electric Cooperative, Inc. intervened and aligned itself with the Commission.

The matter was heard on July 22, 1977, and new evidence was adduced at the hearing. The district court, pursuant to LSA— R.S. 45:1194, referred the matter back to the Commission in order that the Commission could review its own decision in light of this new evidence. On October 19, 1977, the Commission issued Order U—12842A, affirming its decision in Order U-12842. The district court subsequently rendered judgment in favor of the Commission and Claiborne Electric Cooperative, Inc.

In its decision, the Louisiana Public Service Commission stated:

“The witness for Claiborne testified that his company presently has a single phase 8 KV electric line adjacent to the Enterprise property. This existing line is inadequate to serve the load, and both Claiborne and Louisiana Power and Light Company would be required to construct new facilities to a common point. Consequently, witnesses for both Companies testified that the cost of construction to serve the load should be approximately equal since the ‘starting point’ of both three phase lines is at the same location. It is likely that Claiborne could use some of its existing facilities, however.
“It is the opinion of the Commission that the preponderance of evidence is that Claiborne can serve the proposed water well in the most economical fashion, even if the difference is minimal. As such, the Commission’s General Order of March 12, 1974 entitled ‘In Re: Duplication ,of Electrical Facilities’ requires service to be rendered by Claiborne. Moreover, the Commission is of the opinion that it is contrary to the public interest to encourage future opportunities for duplication and battles over territory by permitting parallel constructions, a result inevitably reached under a different decision.”

The appellants argue that the Commission’s and the district court’s decisions are not supported by the record. Both argue that the costs of construction by Claiborne would exceed the costs incurred by the Louisiana Power and Light Company. Both also argue that the Louisiana Power and Light Company offers lower rates than Claiborne Electric Cooperative, Inc.

Courts should act slowly in substituting their own views for those of the expert body charged with the regulation of public utilities. The orders of the Louisiana Public Service Commission should not be disturbed on judicial review, unless they are shown to be arbitrary, capricious, or abusive of the Commission’s authority. A party attacking a Commission order bears the burden of demonstrating that the order is defective, since it is presumed valid. Louisiana Power and Light Company v. Louisiana Public Service Commission, La., 358 So.2d 623 (1978); Louisiana Power and Light Company v. Louisiana Public Service Commission, La., 343 So.2d 1040 (1977).

The General Order of March 12, 1974, was designed to regulate competition among utilities and to avoid wasteful duplication. The district court correctly ruled that a rate advantage is not controlling in determining disputes under the General Order. Louisiana Power and Light Company v. Louisiana Public Service Commission, La., 343 So.2d 1040 (1977).

The record contains ample evidence to support the findings of the Commission. The Claiborne one-phase line was immediately adjacent to the facility. Although service is to be provided through a new three-phase line, the evidence supports the conclusion that Claiborne Electric Cooperative can economically serve the facility. The Commission’s apprehension that a contrary ruling would generate future duplication and service controversy appears to be well-founded.

For the reasons assigned, the judgment of the district court, affirming Order U— 12842 and Order U-12842A, is affirmed.

SUMMERS, J., concurs.

CALOGERO, J., dissents.


text:
    CITY OF BATON ROUGE, Respondent, v. Keith DEES, Relator.
    No. 62355.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    K. Judge Eames, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-respondent.
   TATE, Justice.

The defendant was convicted of driving while intoxicated, La.R.S. 14:98, and sentenced to six months imprisonment without hard labor. We granted certiorari, 359 So.2d 632 (La.1978), because the defendant had been tried and sentenced to imprisonment without counsel and without his express or implied waiver of such representation.

The uncontradicted facts show: The defendant was arraigned and pleaded not guilty on January 19, 1978. His trial date was set for April 11. Two weeks before that date, the defendant retained counsel. On April 10, due to an unanticipated conflict with the trial of a felony set in another city, the defendant’s counsel prepared a motion for continuance. The defendant personally brought this motion to court at 8:30 on the morning of the trial (April 11), and the trial court summarily denied it.

Since apparently other matters were set for trial that date, the trial court ordered the defendant to return to court for trial at 1:30 p. m., with his lawyer (or without him). The trial then proceeded, the defendant unrepresented by counsel, and the trial court found him guilty.

The conviction (and consequent revocation of probation, see footnote 1) must be set aside.

Our state constitution provides that “every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.” La. Constitution of 1974, Art. 1, Section 13. This constitutional mandate requires: “Absent a knowing and intelligent waiver, no defendant may be imprisoned if he was not represented at trial by counsel.” State v. McGowan, 359 So.2d 972, 974 (La.1978). In McGowan, we set aside the conviction where, similarly to the present instance, an unrepresented defendant was convicted and imprisoned, despite his unavailing efforts to secure the assistance of counsel at his trial.

As we noted in McGowan, an implied waiver might conceivably result where the defendant failed to employ an attorney until the day of or shortly before the trial, despite a reasonable opportunity to do so. 359 So.2d 974. Likewise, the accused’s unquestioned right to legal representation at his trial cannot be manipulated by him, by attempts at last-minute substitution or otherwise, so as to secure unwarranted delays or otherwise obstruct the orderly administration of justice. State v. Bolton, 354 So.2d 517 (La.1978); State v. Mackie, 352 So.2d 1297 (La.1977); State v. Hedgwood, 345 So.2d 1179 (La.1977); State v. Wiggins, 337 So.2d 1172 (La.1976).

The present instance does not, however, concern any waiver whatsoever by the accused of his right to counsel. Nor does it represent any manipulative use on his part of his right to counsel so as to delay the trial of his case. Instead, the record reflects that he had timely retained counsel two weeks before the trial date, but that on the eve of the trial this counsel sought a continuance for reasons related to counsel’s professional necessity to be in another courtroom at the same time.

To the contrary, the present instance is generically similar to that in State v. Winston, 327 So.2d 380 (La.1976). There, we reversed a conviction and remanded for a new trial, where a continuance was denied and through no fault of his own the accused was forced to go to trial with an inadequately prepared counsel. (The accused’s retained counsel withdrew from his representation shortly before trial, and the accused was not able to secure appointed counsel until immediately prior to trial.)

Whatever may have been the court’s right to discipline counsel if the present motion for continuance was untimely or ill-founded, the client cannot be penalized, by the loss of his constitutional right to legal representation at his trial, for his lawyer’s lapse arising out of a conflict in the lawyer’s trial schedule. This conviction, resulting in imprisonment by an unrepresented defendant who had not waived counsel, must be set aside as having been obtained in violation of the accused’s constitutional right to the assistance of counsel at his trial.

Decree

Accordingly, we reverse the conviction (and the consequent revocation of probation from a suspended sentence for another misdemeanor), and we remand this case for a new trial in accordance with law.

REVERSED AND REMANDED FOR A NEW TRIAL.

      . Based upon this conviction, the court revoked his probation resulting from a suspended sentence for an earlier offense and ordered that the defendant serve this six-month sentence concurrently with that upon the present sentence.

      . The federal constitution’s Sixth Amendment right to the assistance of counsel, applicable to the states by reason of the Fourteenth Amendment, has been interpreted to have the same effect. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). See also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

      . See also State v. Cousin, 307 So.2d 326 (La. 1975) and State v. Stafford, 258 La. 523, 246 So.2d 849 (1971), where we held that the trial court did not abuse its discretion in denying a continuance where newly-retained counsel was inadequately prepared for trial because of such reason.

      . Under the subsequent showing made, we believe it likely that the trial court would have granted the continuance, if counsel had more adequately explained the reason in his written motion and had made greater effort to contact the court or opposing counsel directly, instead of sending his unrepresented client to court with the barebones motion on the morning of the day set for trial.


text:
    Curtis J. DUGAS v. ROYAL GLOBE INSURANCE COMPANY et al.
    No. 62938.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Royal Globe Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 360 So.2d 554.

Writ denied.

SANDERS, C. J., and DIXON, J., would grant the writ.

CALOGERO, J., would grant concerning the quantum issue.


text:
    Mr. Claude P. MOUTON and Mrs. Mourivert Mouton v. GODCHAUX’S INC., and Seligman & Latz of New Orleans.
    No. 62899.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Mr. Claude P. Mouton and Mrs. Mourivert Mouton, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 600.

Writ denied.

TATE, DIXON and CALOGERO, JJ., would grant the writ.


text:
    E. C. CHAPPELLE, Jr. v. The GREATER BATON ROUGE AIRPORT DISTRICT et al.
    No. 62327.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: The Greater Baton Rouge Airport District et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 824.

Writ denied.


text:
    Mrs. Emetilde GUILLOTTE v. HOUSTON GENERAL INSURANCE CO. et al.
    No. 63035.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Mrs. Emetilde Guillotte applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Calcasieu. 360 So.2d 1188.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    ILLINOIS CENTRAL GULF RAILROAD v. INTERNATIONAL HARVESTER, INC.
    No. 62963.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Illinois Central Gulf Railroad applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 628.

Granted.

It is ordered that the writ of review issue: that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Frank BURAS v. BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF NEW ORLEANS.
    No. 62947.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Frank Buras applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    James T. COPELLAR, Jr. v. Robert G. YOUNT and David Yount.
    No. 62993.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: David Yount applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches, State of Louisiana. 361 So.2d 971.

Writ denied.


text:
    Nathan WALKER, Jr. et ux. v. UNION OIL MILL, INC. et al.
    No. 62994.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Nathan Walker, Jr., et ux. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Concordia. 360 So.2d 894.

Writ denied.


text:
    William DRUILHET et ux. v. TRINITY UNIVERSAL INSURANCE CO. et al.
    No. 62995.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: William Druilhet, et ux. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu, State of Louisiana. 361 So.2d 40.

Writ denied.


text:
    Shelly BRASSEAUX et al. v. VERMILION PARISH POLICE JURY.
    No. 63016.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Vermilion Parish Police Jury applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Vermilion. 361 So.2d 35.

Writ denied.

SANDERS, C. J., and MARCUS, J., would grant the writ.


text:
    CITY OF OPELOUSAS v. Leroy J. SCRANTZ.
    No. 63022.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: City of Opelousas applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry, State of Louisiana. 360 So.2d 1379.

Writ denied.


text:
    Mrs. Walter ATKINSON et al. v. ALLSTATE INSURANCE CO. et al.
    No. 63042.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Allstate Insurance Company applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Iberia. 361 So.2d 32.

Writ denied.