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

text:
    STATE of Louisiana v. Nolan Anthony SCHOUEST.
    No. 59318.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.

      C. Alan Lasseigne, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Walter K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

This is an appeal by Nolan Anthony Schouest from a conviction of second degree murder. La.Rev.Stat. 14:30.1. He was sentenced to life imprisonment without eligibility for parole, probation or suspension of sentence for twenty years. Seven assignments of error are briefed and relied upon for reversal of the conviction and sentence.

The victim of this crime was Karen Ledet Foret, a young woman in her twenties. She died as a result of fifteen stab wounds sustained on the evening of November 1, 1974. When her semi-nude body was discovered during the early morning hours of November 2, 1974, contusions on her neck were consistent with an attempt by her assailant to choke her. An aerosol spray can had been forcibly inserted in her vagina.

On the evening of her death, but before the crime was discovered and reported, a State Police Officer, Donald Baudoin, returning home from his regular shift, noticed defendant’s Plymouth automobile parked on the shoulder of Louisiana Highway No. 1, approximately 640 feet from the trailer where the victim’s body was later found. The door of the Plymouth was partly open, and the dome light was on. Believing the occupant was either in need of help or intoxicated, Officer Baudoin decided to investigate.

As he pulled behind the parked car, the officer noticed, with the aid of his spotlight, the car’s occupant bending over as though he were concealing something beneath the seat on the passenger side. Officer Bau-doin approached the driver’s side of the parked vehicle and inquired of the occupant, the defendant Schouest, whether he needed assistance. The trooper was told that the automobile’s alternator was giving trouble but no help was needed. Schouest was asked to produce his driver’s license, and they walked between the two vehicles while Baudoin inspected the license.

When they returned to the driver’s side of the Schouest Plymouth, Officer Baudoin from his position outside the vehicle saw, with the aid of his flashlight beam, a bundle of what appeared to be rags or clothes on the floor of the passenger side of the Schouest vehicle. In his conversation with Schouest, Baudoin inferred that Schouest attempted to conceal these objects as the police car approached the Schouest vehicle. When Schouest protested that he had made no effort to conceal anything, Baudoin asked if he could take a look. Schouest readily consented, and entered the driver’s side of the Plymouth to unlock the door on the passenger side to permit the officer to examine what turned out to be a bloodstained T-shirt and a pair of pants, together, with a pair of a woman’s bikini panties. A small jewelry box was also seen on the car seat.

To explain the bloody garments Schouest related that he had been involved in a fight earlier that evening in which he sustained a nosebleed which bloodied his shirt and pants. Thereafter he changed clothes at the home of Jimmy Boudreaux, a friend who lived at Grand Bois. The bikini panties, Schouest said, was a souvenir which belonged to a sister-in-law. Schouest said the jewelry box contained a pair of gold cuff links returned by a girl friend.

During the course of his discussion of the fight in which he claimed to have suffered a nosebleed, Schouest said the other fighter had been hospitalized. A radio check by Officer Baudoin failed to support Schouest’s story. His suspicions aroused, Baudoin called upon a sheriff’s deputy to help him evaluate the situation. When the deputy arrived, his conversation with Schouest disclosed that following the fight Schouest changed clothes at James Billiot’s house in T-Bois. Despite this inconsistency with the former reference to James Boudreaux’s house in Grand Bois, the officers then found no cause to arrest Schouest and advised him he was free to go. Nothing was seized. Defendant departed with the clothing and jewelry box.

However, after the victim’s body was discovered the next morning, Officer Baudoin inspected the scene of the killing. He also returned to the spot where defendant’s Plymouth had been parked the night before and found a class pendant belonging to the victim. A search warrant was then obtained for the search of Schouest’s house and car. There seizure of evidence was made which was later introduced at the trial. Schouest was then arrested. That evening he gave a second statement to the authorities (the first, which cast blame upon an unidentified man called Tommy, having been repudiated as “not true.”) The second statement set forth that on the night of November 1, 1974 defendant went to the trailer house where the victim lived. He had intercourse with her and thereafter became involved in an argument. As a result the victim attacked him with a knife. While Schouest was fending off the attack, she somehow stabbed herself twice. Then, Schouest said, he “lost [his] head . . .,” and started stabbing her. He then changed his clothes, using clothes in the victim’s closet, took the jewelry box he had given her on another occasion and left, encountering Officer Baudoin shortly thereafter.

The statement indicated Schouest had been intimate with the victim prior to and during her marriage and that, having met her husband in a bar earlier in the evening, Schouest knew that he would be out drinking the night of November 1, 1974.

Assignment 1

Prior to trial a motion was filed on behalf of defendant to suppress “all objects or other property, or documents, books, papers or writings” in the possession of the State, “the description of which is unknown to mover” seized by police officers in a search of the premises located at R.F.D., Box 752, Lockport, Louisiana, on or about November 2, 1974 or seized by police in a search of defendant’s automobile, a 1966 Plymouth, on or about November 2, 1974 at about 2:30 p. m.

The motion alleged further that the affidavits upon which the search warrants were issued contained information in the possession of the affiants which was the “fruit of the poison tree.”

A previous search of defendant’s automobile had been made on November 1,1974 at approximately 11:45 p. m. which, it is alleged, was not incident to an arrest, was made without a search warrant, without probable cause and without warning defendant of his constitutional rights.

Also, it is alleged, an illegal entry had been made by police officers of defendant’s bedroom at R.F.D. Box 752, Lockport, Louisiana, at approximately 6:30 a. m. on November 2, 1974 for the purpose of arresting defendant. This entry, the motion sets forth, was accomplished without an arrest warrant, and without probable cause independent of the facts obtained by the November 1, 1974 search of defendant’s automobile.

Thus the validity of the search warrants and the searches and seizures made pursuant thereto was based upon information obtained by Officer Baudoin on the night of November 1, 1974 when he stopped to talk to Schouest at his parked car on the side of the highway. The facts and circumstances surrounding this incident were developed at the hearing on the motion to suppress and are set forth in detail in the foregoing narrative.

The State contends that the confrontation on the night of November 1, 1974 between Officer Baudoin, the deputy sheriff and the defendant Schouest was not tainted with any illegality so as to render the subsequent search warrants invalid.

In brief the defense argues that the initial detention of Schouest was unconstitutional. Noting the State’s reliance on the rules of “stop and frisk” and “plain view”, the brief quotes from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) to the effect that “. . . whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person . . .” On this premise the defense argues that Schouest had the right to be free from unreasonable governmental intrusion. He was lawfully parked, there was no reason to approach him, and the officer had no reasonable belief that Schouest was committing or had committed a crime. Under these circumstances the detention was unconstitutional and the evidence developed from this procedure was tainted with that illegality.

The defense position is not well-taken. The officer’s approach to the Schouest vehicle was dictated by his experience, his interest in the welfare of the motoring public and by the requirements of his official duties. These furnish reasonable grounds for stopping to inquire of the occupant of a vehicle parked on the’shoulder of the highway after eleven o’clock at night with its dome light on and a door ajar. The mere stopping of a vehicle and observing defendant’s car was not a search by Officer Bau-doin.

The “plain view” doctrine applies to automobiles and what is revealed by shining a flashlight into a car at night is considered to be in open view. Williams v. United States, 404 F.2d 493 (5th Cir. 1968). There is no evidence that defendant was coerced, threatened, mislead or mistreated in any manner. Nothing in the record indicates that defendant did not understand what he was doing or that his actions were not voluntary. To the contrary, defendant cooperated with the officers, consented to the examination of the clothing and opened the car door to admit Officer Baudoin.

A search or inspection conducted with the consent of a defendant is an exception to both the warrant and probable cause requirements of the law. And the volun-tariness of the consent is a question of fact to be determined by all of the facts and circumstances of each individual case. In such a determination the trial judge’s conclusions on credibility are entitled to great weight. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Strange, 334 So.2d 182 (La.1976); State v. Hubbs, 261 La. 173, 259 So.2d 53 (1972).

The scope of the officer’s inquiry did not exceed permissible limits and resulted in no seizure of objects or illegal detention of Schouest. Defendant has not discharged the burden imposed by Article 703 of the Code of Criminal Procedure upon the mov-ant in a motion to suppress to establish the unconstitutionality of the search and seizure. State v. O’Conner, 320 So.2d 188 (La.1975); State v. Wood, 262 La. 259, 263 So.2d 28 (1972).

Assignment 2

Apparently the defense sought to support a theory that Almus Foret, Jr., husband of the victim, was pimping for his wife, was present during the alleged murder and did, in fact, commit the murder himself. To support this theory in part the defense called Dr. George A. Bishop as an expert in the field of psychiatry. On redirect examination by defense counsel the following colloquy occurred:

“Q. Under the right circumstances and particularly if the husband had told the wife to do certain things and the wife rebelled, would there be anything inconsistent with this type of attack, a savage attack, being the result of the husband attempting to assert himself and his authority over that wife?
“A. I think you need to put more into that hypothesis than what you’re stating.
“Q. Let me give you a specific hypothesis. If that husband were, for whatever reason, procuring men — ”

At this time the prosecutor objected that the question went beyond the cross-examination, and the trial judge interjected: “Well, not only that, but in order to ask a hypothetical question the facts upon which the hypothetical questions are based must be in the evidence.” Whereupon, defense counsel moved for a mistrial “on the grounds that you [the trial judge] commented on the evidence that such facts have not been put into the record.”

In brief the defense points to the testimony of Almus Foret, Jr., in which he categorically denied that he killed his wife or that he ever pimped for her or tried to sell her. sexual services to others. The trial judge’s comment, the defense reasons, amounted to a declaration by the judge to the jury that he believed Foret’s denials despite the fact that the defense witness Philip Breaux had previously testified that Foret did in fact sell his wife to Breaux on more than one occasion.

It is a statutory rule in this State that in the presence of the jury the judge may not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted. La.Code Crim.Pro. art. 772. However, this Court has consistently held that remarks made by the trial judge in the jury’s presence giving reasons for his rulings on objections, for admitting or excluding evidence or stating the purpose for which evidence is offered or admitted, are not objectionable as comments or expressions of an opinion provided they are not unfair and prejudicial to the accused. State v. Young, 337 So.2d 1196 (La.1976); State v. Fallon, 290 So.2d 273 (La.1974); State v. Hills, 241 La. 345, 129 So.2d 12 (1961), rev’d. on rehearing on other grounds; State v. Nicolosi, 228 La. 65, 81 So.2d 771 (1955); State v. Walker, 204 La. 523, 15 So.2d 874 (1943); State v. Childers, 196 La. 554, 199 So. 640 (1940).

The ruling of the trial judge was not, as the defense contends, an expression of an opinion of what had been proved or not proved. While there was evidence that Almus Foret did procure Breaux for his wife, this did not occur on the night of the killing as defense counsel’s hypothesis required. There is no evidence that Foret was procuring men for his wife the night she was killed. Moreover, there is no evidence to support the assumed fact that on the night that Mrs. Foret was killed her husband told her to do certain things against which she rebelled. Nor is it established in the evidence that as a result of his wife’s rebellion she was savagely attacked by Foret.

The opinion of an expert witness on facts not within his personal knowledge may be elicited by propounding a hypothetical question which is in proper form, provided the hypothesis assumes only facts which the evidence proves or tends to prove. Unless the record supports the facts assumed the hypothetical question is impermissible. La.Rev.Stat. 15:278; 23 C.J.S. Criminal Law § 883.

This assignment is without merit.

Assignment 8

Defense counsel objected during voir dire to the prosecutor asking prospective jurors “would” they convict rather than “could” they convict under certain circumstances. The specific question to which the defense objected was: “After you sit through this trial and after you listen to all of the evidence, and if after that we convince you beyond a reasonable doubt that Nolan Schouest is guilty, would you vote guilty in this case?”

The defense objection is based upon the contention that the question seeks a commitment and a promise from the jurors. In rebuttal the State argues that the question is a correct statement of the law which presents a legitimate inquiry into the jur- or’s qualifications. If the juror will not accept the law as given to him by the court,, Articles 797 and 798 of the Code of Criminal Procedure provide that he may be challenged for cause. Furthermore, the prosecutor argues, he may ascertain on voir dire whether the prospective juror will obey his solemn duty under the law to convict when he is convinced beyond a reasonable doubt that the defendant is guilty.

In State v. Young, 337 So.2d 1196 (La. 1976) this Court held that the reference by the district attorney to a “promise” of the jurors (during voir dire examination) that they would return a verdict of guilty if warranted by the facts was only a reminder by the prosecutor of the juror’s sworn duty.

This assignment is without merit.

Assignment 4

During the prosecutor’s closing argument defense counsel moved for a mistrial because of the following remark referring to the inculpatory statement of the defendant which the State had introduced into evidence: “Now, in addition to this evidence we have the defendant’s statement that he was there and that he did it. There is an eyewitness in this case. There is direct evidence. The defendant himself . .”

It is argued on behalf of the defendant that it was the prosecutor’s intent to impress the jury with the fact that defendant did not testify. Advancing such a proposition, it is contended, warrants a mistrial under the authority of Article 770 of the Code of Criminal Procedure proscribing any direct or indirect reference to the failure of the defendant to testify in his own defense.

The State contends that this portion of its argument was in answer to the defense reference to circumstantial and direct evidence during voir dire of prospective jurors. This was the State’s argument that direct evidence of defendant’s commission of the crime was contained in the defendant’s own statement — the inculpatory narration of the happening in the trailer which was introduced without objection.

Considered in this context, together with the fact that no direct statement was made by the prosecutor alluding to the failure of the defendant to take the witness stand, the defense motion for a mistrial is without merit. In order to mandate a mistrial, this Court has said that the inference must be plain that the remark was intended to bring to the jury’s attention the failure of the defendant to testify. State v. Gilmore, 323 So.2d 459 (La.1976); State v. Shilow, 252 La. 1105, 215 So.2d 828 (1968), cert. denied, 397 U.S. 927, 90 S.Ct. 932, 25 L.Ed.2d 106 (1970). Before a verdict approved by a judge is set aside on the ground of improper argument, this Court must be thoroughly convinced that the alleged improper argument contributed to the verdict. La.Code Crim.Pro. art. 921; State v. Lockett, 332 So.2d 443 (La.1976); State v. Dennis, 250 La. 125, 194 So.2d 720 (1967).

This assignment is without merit.

Assignment 8

At the close of the State’s case the defense moved for a directed verdict on dual grounds: first, that the crime was committed while the law of this State permitted the trial judge to direct a verdict of not guilty to which this defendant was entitled; and, second, the State failed to prove an essential element of the crime, specifically, that the defendant had not acted in self-defense, the self-defense issue having been raised by the State when defendant’s pretrial statements to the police officers were introduced into evidence by the State.

The trial of this case began with the calling of the first juror on November 15, 1976. La.Code Crim.Pro. art. 761. The authority of a trial court to direct a verdict of not guilty in a jury trial was withdrawn on September 12, 1975 by Act 527 of 1975 amending Article 778 of the Code of Criminal Procedure. On several occasions since that time this Court has held that the amendment was procedural in character. Being procedural in nature the amendment is applicable to this trial which was held after the amendment’s effective date. State v. Charles, La., 350 So.2d 595; State v. George, 346 So.2d 694 (La.1977); State v. Jackson, 344 So.2d 961 (La.1977); State v. Clark, 340 So.2d 208 (La.1976), cert. denied 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977); State v. Marmillion, 339 So.2d 788 (La.1976).

From these cases it is concluded that the trial judge had no authority to grant an acquittal, or directed verdict, and, therefore, defendant’s motion was not well-taken.

This assignment is without merit.

Assignment 10

Defendant offered to introduce the results of two “polygraph” tests and a “voice stress” test. This offer, after discussion in chambers and in open court out of the presence of the jury, was declined by the trial judge. The ruling is assigned as error.

The ruling was correct. In at least four decisions this Court has recognized that the results of polygraph examinations are unacceptable as evidence in criminal prosecutions. State v. Weeks, 345 So.2d 26 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Corbin, 285 So.2d 234 (La.1973); State v. Refuge, 264 La. 135, 270 So.2d 842 (1972). Like the “polygraph” tests, there has been no adequate showing of the reliability of the “voice stress” test.

The rule to which this Court has adhered is not altered by the defense contention that defendant was a suitable subject for these tests. Nor is admissibility promoted by the contention that defendant’s own statement inculpating himself as the only eyewitness to the offense was produced by the State as direct evidence to bolster its circumstantial case. By this means the defense is understood to argue that defendant was placed in a position where corroboration of his trial version (self-defense) of the killing was of paramount importance, there being no other eyewitnesses to the killing.

This assignment has no merit.

Assignment 11

Again referring to the point in the trial referred to in our consideration of Assignment 2, defense counsel’s argument here centers upon the alleged prejudice to the defendant by the judge’s failure to allow the defense to pursue a line of hypothetical questions. These questions were to be propounded to Dr. Bishop, the psychiatrist and member of the court-appointed sanity commission.

According to the defense brief, the emotional and psychological make-up of the assailant as reflected by the physical evidence at the trial, as well as a comparison of same with the emotional and psychological makeup of the defendant, was a central point in the doctor’s testimony. This being so, defense counsel contends he should have been allowed to pursue that line of questioning.

In addition to the reasons given in our consideration of Assignment 2, it is noted that defense counsel was permitted wide latitude in examining Dr. Bishop and, in our judgment, no undue prejudice resulted to the defendant. Except for the opinion he sought to obtain from Dr. Bishop all of the facts were before the jury and the conclusion to be drawn from them was their prerogative, not the province of experts.

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

SANDERS, C. J., concurs.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J.,

dissents. The trial judge commented upon the evidence in the presence of the jury in violation of La.C.Cr.P. Art. 772.

CALOGERO, Justice,

concurring.

When a policeman shines a flashlight into a car at night, his discovery of contraband is never considered the discovery of something in “plain view” unless there is a particular justification for his action in flashing the light inside the car. See State v. Bourg, 332 So.2d 235 (La.1976) (policeman helping defendant, stopped for traffic violation, to find his driver’s license). One of the essential elements justifying a plain view seizure is that the discovery of the object be inadvertent. State v. Williams, 347 So.2d 231 (La.1977); State v. Fearn, 345 So.2d 468 (La.1977). Here, where the policeman shined his light into the car for no asserted or apparent reason other than to look into Schouest’s automobile, the discovery of the bundle was not at all inadvertent and therefore not in plain view.

However, because I believe that the majority correctly finds that defendant consented to the search of his automobile, I concur in the majority determination.


source: Caselaw Access Project

author: TATE, Justice. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Harold ROLLINS, Appellant.
    No. 59542.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.

      Paul C. Tate, Jr., Tate, Tate & Tate, Mamón, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., A. Bruce Rozas, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Rollins was convicted of murder, La.R.S. 14:30 (1950), and sentenced to life imprisonment. His defense was not guilty by reason of insanity at the time of the offense. Upon his appeal, he relies upon five assignments of error.

The most arguable assignments concern: (1) the denial of a continuance because of the defendant’s inability to secure the presence of one of his two chief psychiatric witnesses (Assignment No. 2); and (2) the alleged abuse of discretion on the part of the trial court in denying a new trial, in view of the overwhelming and essentially uncontradicted psychiatric testimony of the accused’s insanity at the time of the offense (Assignment No. 5).

The killing occurred in December, 1971. In June, 1972, the defendant was committed to a state mental hospital for examination with regard to his mental capacity to proceed, as well as to his sanity at the time of the commission of the offense. He was finally found to have the mental capacity to assist his defense in December, 1975, but because of his need for medication to retain his mental stability, he remained hospitalized until April, 1976, the month of his trial.

Denial of Continuance

Under the circumstances, we find no abuse of discretion in the trial court's refusal to grant a continuance. Continuance was sought, because defendant was unable to secure the attendance of a psychiatric witness (Dr. Mann), then in Texas.

The motion was made on the day the trial commenced (a Monday). The accused’s counsel had not been able to receive a communication from Dr. Mann until four days earlier (a Friday).

However, a February fixing had been continued based upon the same allegation, including the information that Dr. Mann was then in Laredo, Texas. The February motion and the showing at the April motion indicate that the district attorney and defense counsel contemplated that an out-of-state subpoena would be issued for Dr. Mann, La.C.Cr.P. art. 741. No motion was ever made to obtain Dr. Mann’s attendance by such a subpoena.

Immediately preceding the April motion for continuance, the defense counsel notified the state that he intended to offer into evidence the expert opinion of Dr. Mann in the form of the certified copies of the mental hospital records, La.R.S. 13:3714. The state did not object and in fact cooperated with the production before the jury of the full hospital records, which included reiterations of Dr. Mann’s opinion based upon his two years’ observation of the accused, that the accused was schizophrenic, and legally insane at the time of the offense.

In denying the continuance, the district court relied: (1) upon the availability of these records (which were later read to the jury) in lieu of Dr. Mann’s testimony, La.C. Cr.P. art. 710; (2) upon the circumstance that testimony from the other psychiatrist (Dr. Birchard), with extensive similar observation of the accused at the mental hospital, would testify to the same effect based virtually upon the same data; (3) upon the circumstance that defense counsel was unable to show with any probability that he would be able to make Dr. Mann available for the date to which the trial would be continued, La.C.Cr.P. art. 709(2) (Dr. Mann being unwilling to return to Louisiana and apparently unwilling to furnish a precise address at which he might be subpoenaed); and (4) upon the circumstance that a continuance had been granted previously upon the same ground as continuance was now sought, but counsel had been unable to secure Dr. Mann’s presence at this later trial date two months later.

Because of these cumulative reasons, we are unable to hold that the trial court abused its discretion in denying this second continuance sought.

Denial of a New Trial

The principal ground urged for the new trial was that the verdict was contrary to the law and the evidence La.C.Cr.P. art. 851(1). The specified reasons urge that psychiatric testimony overwhelmingly showed that the accused was insane at the time of the crime. (If because of “a mental disease ... he [the accused] is incapable of distinguishing between right and wrong” insofar as the killing, the accused is exempt from criminal responsibility for it. La.R.S. 14:14.)

Dr. Birchard testified positively that, based on the extensive records at the mental hospital and upon his own repeated examinations, he was of the firm opinion that the accused did not know the difference between right and wrong at the time of the crime. He believed that the accused committed the crime because of paranoid delusions, precipitated by the effect of the attendant circumstances upon his underlying schizophrenia.

The extensive records of the state mental hospital indicate Dr. Mann’s opinion to be the same.

Dr. Birchard testified that, of the hundreds of mental examinations he had made, he was never more sure of an opinion than of his in the present case.

La.C.Cr.P. art. 851(1) permits the trial judge to grant the defendant a new trial, if in his opinion the evidence is insufficient to convict. Official Revision Comment (d), State v. Jones, 288 So.2d 48 (La.1974); State v. Daspit, 167 La. 53, 118 So. 690 (1928). On the other hand, unless the trial court’s discretion in the matter is abused, the alleged insufficiency of the evidence is no ground for appellate review; the reviewing court’s jurisdiction extends only to questions of law, and not to the sufficiency of the facts of guilt or innocence. La.Const. of 1974, Art. 5, Section 5 (C); State v. Plummer, 281 So.2d 716 (La.1973).

In the exercise of his discretion, the trial judge’s granting or refusal of a new trial will not be disturbed on review in the absence of clear abuse. State v. Credeur, 328 So.2d 59 (La.1976); State v. Randolph, 275 So.2d 174 (La.1973).

With regard to the issue of insanity at the time of the offense: A defendant is presumed to be sane at that time. State v. Marmillion, 339 So.2d 788 (La.1976). The defendant has the burden of establishing the defense of insanity at the time of the crime. La.C.Cr.P. art. 652; State v. Craig, 340 So.2d 191 (La.1976). The determination of whether the defendant was insane at the time of the crime is a fact question reserved for the jury. State v. Daigle, 344 So.2d 1380 (La.1977); State v. Clark, 305 So.2d 457 (La.1974).

Considering these principles, and under the evidence introduced, we cannot say that the trial court abused its discretion by denying a new trial upon the ground urged: namely, because of grave doubt as to the sufficiency of the evidence supporting the jury’s finding of sanity.

The defendant’s medical evidence indicated that the underlying schizophrenia had periods of remission. Neither of defendant’s psychiatrists personally examined him until approximately two years after the offense, while the mental hospital records did not themselves commence until seven months after the offense.

The state introduced the testimony of another psychiatrist who had interviewed the accused shortly after his admission to the mental hospital. The doctor admitted that he did not then accomplish a final diagnosis; however, he testified that his initial impression was that the accused exhibited no signs of psychosis upon admission but was simply an anti-social personality. This psychiatrist further testified that he felt it impossible for a psychiatrist to determine whether an accused had known the difference from right or wrong at the time of his crime, if the psychiatrist did not examine the accused until eighteen months or more after the crime had been committed (as had the accused’s psychiatrists).

In addition, the accused’s actions immediately before and immediately after the crime could afford some basis for jury doubt that his behavior resulted from a mental condition, rather that simply from a desire for revenge because he had been told to leave the victim’s premises.

No lay witnesses from the community testified as to bizarre behavior in the past. The defense is based solely upon the strong expert evidence of legal insanity, based primarily on interviews with and observations of the accused some two years after the offense. This, however, is somewhat countered by evidence permitting reasonable factual inference to the contrary of their opinion.

We cannot say the evidence that the accused was not guilty by reason of insanity is so insufficient that the trial judge abused his discretion by denying a new trial.

Other Assignments

The other assignments are without merit:

Assignment 2: The trial court did not err in refusing a special written charge, because the general charge fairly conveyed its substance. La.C.Cr.P. art. 807.

Assignment 3: The general charge stating the burden of the defendant to establish insanity, La.C.Cr.P. Art. 652, could have been clearer; but it does not misstate the law or constitute reversible error.

Assignment 4: Inadvertently, after agreeing on defendant’s objection to delete it, the trial court in defining for the jury a legal presumption and listing various examples (e. g., “that the defendant is innocent”), included as one of the examples “that the grand jury was legally constituted.”

The state agrees that, upon objection, this example should have been deleted, if defendant felt that it unnecessarily reminded the jury of the grand jury indictment. However, as the state likewise urges, this oblique reference to the grand jury was not prejudicial to the defendant (since the legal constitution of the grand jury was not remotely an issue in the case), especially since the trial court had earlier emphasized that a grand jury indictment carried no weight of presumption of guilt and that an indictment should not influence the jury in its consideration of the case.

Decree

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

AFFIRMED.

SANDERS, C. J., concurs.

SUMMERS, J., concurs.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I disagree with the majority treatment of the denial of a new trial. Where error is assigned to the refusal of the trial judge to grant a motion for a new trial grounded on the allegation that the verdict is contrary to the law and evidence (La.Code Crim.P. art. 851(1)), nothing is presented for our review. State v. Jack, 332 So.2d 464 (La.1976). Accordingly, I respectfully concur in the result.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Louis HOPKINS.
    No. 59549.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.

      Richard V. Burnes, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., Willian E. Tilley, First Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Louis Hopkins was indicted for distribution of a controlled dangerous substance, i. e. heroin, in violation of R.S. 40:966(A). On May 19, 1976 a jury of twelve found defendant guilty as charged; defendant was sentenced to life at hard labor. On appeal the defendant relies on five assignments of error, in addition to an allegation of error patent on the face of the record.

Facts

On January 30, 1976 in Leesville, Louisiana between 10:00 and 11:00 p. m., defendant allegedly delivered a foil package containing heroin to an undercover agent, a State trooper named Carpenter. Defendant was arrested February 12, 1976 and retained counsel on or before February 18, 1976.

Several motions were filed on behalf of the defendant: March 31, 1976 — petition and order for bill of particulars to which an answer was filed April 9, 1976; April 20, 1976 — motion for severance and motion for independent examination of the evidence; April 30, 1976 — motion for continuance; May 4, 1976 — motion to quash the indictment; May 5, 1976 — motion and prayer for oyer to which answer was filed May 12, 1976. A hearing was held May 7, 1976 on the motions to quash, for independent examination, for severance and for continuance. The motions to quash and continue were denied, the motion to obtain independent evaluation of evidence was granted, and the motion for severance was taken under advisement. At date of trial, May 17, 1976, defendant presented another motion for continuance and motion to quash, both of which were denied, and trial proceeded. As previously stated, a guilty verdict was returned May 19, 1976, and at hearing on the motion for a new trial defendant was sentenced.

Error Patent on the Face of the Record

Defendant contends that the trial judge failed to comply with the requirements of C.Cr.P. 873 which provides, in pertinent part, as follows:

“ . . . If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.” (Emphasis added).

Reference to the minutes of court and the trial court’s judgment reveals that a motion for new trial was denied on June 2, 1976 and that on that same date defendant was sentenced. However, no entry appears which indicates a waiver by defendant of the twenty-four hour delay period before sentencing. It is clear from the jurisprudence that such a sentence is void, State v. Womack, 273 So.2d 290 (La.1973), and requires a remand for resentencing in accordance with law. State v. Whatley, 320 So.2d 123 (La.1975); State v. Navarre, 292 So.2d (La.1974); State v. Woodfox, 291 So.2d 388 (La.1974). Thus, defendant’s contention that a remand is necessary is meritorious.

Assignments of Error Nos. 1 and 4

Defendant argues in two assignments of error that the trial judge abused his discretion in failing to grant motions to continue asserted at different stages of the proceeding.

The first such motion filed April 30,1976, seventeen days before trial, and argued May 7,1976 alleged the need for more time to adequately prepare a defense based upon defense counsel’s inexperience (he had been admitted to the bar approximately four months prior to being retained and apparently this was his first criminal trial) and the seriousness of the offense, which required mandatory life imprisonment upon conviction.

This ground for continuance fits within the discretionary purview of the trial judge. C.Cr.P. 712 provides:

“A motion to continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.” (Emphasis added).

The jurisprudence is clear that the trial judge has a large measure of discretion unless there is a showing that such discretion has been arbitrarily or unreasonably abused. State v. Smith, 322 So.2d 197 (La.1975); State v. Brewer, 301 So.2d 630 (La.1974).

Reported cases where an abuse of discretion is found in denial of a continuance are rare. In one such case, State v. Winston, 327 So.2d 380 (La.1976), appointed counsel had only three days in which to prepare for trial including an intervening Saturday and Sunday, but such a serious situation is not presented in the instant case. Counsel was retained as early as February 18, 1976 and had approximately sixty days between arraignment on March 19, 1976 and trial on May 17, 1976.

The record reveals that on May 7,1976, at hearing on the motion, the trial judge recognized that counsel had thus far been diligent in defense of the case and was representing his client well. For example, counsel had been successful on February 20, 1976 in obtaining a significant reduction in bail from $300,000 to $20,000 and had also filed a series of defense motions including motions for bill of particulars, for severance, for independent examination of evidence, to quash the indictment, and a motion and prayer for oyer. Although counsel had only ten days between denial of the motion for continuance and the trial, he initially had about two months from arraignment and three months from the time of retention in which to prepare. In State v. Brewer, supra, three weeks from the time counsel was appointed was deemed adequate, whereas in State v. Smith, supra, ninety days from the arraignment was held to be enough in spite of counsel’s need to prepare defenses for other serious charges. Additionally, in State v. Kenner, 336 So.2d 824 (La.1976), continuance was denied where counsel had thirty-five working days to prepare.

Defendant’s counsel makes no showing or allegation that through additional time he would have been able to procure additional exculpatory evidence or would have been able to present a better case for his client. Furthermore, the trial of this matter involved the fairly straightforward issues of whether a sale was made, whether it was made by defendant, and whether the substance was heroin. Preparing a defense on these issues should not have created the kind of time problems that might arise with more complicated factual issues. The trial judge’s denial of the motion to continue, based upon the finding that the admittedly inexperienced attorney had been representing his client well in the time available, was not an arbitrary or unreasonable abuse of discretion.

Defendant’s second motion to continue was orally introduced before commencement of the voir dire examination of jurors, the trial judge allowing until that afternoon for submission of a written motion. Defendant contends an abuse of discretion in denial of a continuance based upon the allegation that testimony of a defense witness, Clarence Williams, a co-defendant in this case, was crucial to the defense. Where motion for continuance is based upon absence of a witness, the motion must state:

“(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial; “(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
“(3) Facts showing due diligence used in an effort to procure attendance of the witness.” C.Cr.P. 709.

In defendant’s written motion he satisfied the requirements of subparagraph (1) of article 709 by alleging the witness would be able to testify as to the following exculpatory facts: (1) that defendant was not present at the time of the alleged offense; (2) that individuals other than defendant were present, i. e. the witness, an undercover informant, and a State trooper; (3) that the undercover informant was a known drug addict; (4) and the witness overheard the informant state that a substance he was giving the trooper had been obtained from the witness rather than the accused. This sufficiently identifies the testimony the witness would be able to offer, if available.

The State contends that since co-defendant Williams could invoke his Fifth Amendment right and refuse to testify that defendant has not satisfied the requisite showing on a motion to continue based on the absence of a witness. However, article 709(1) requires a showing of facts the witness is “expected to testify” to but does not demand a showing that the witness absolutely will so testify.

Defendant has satisfied subpara-graph (3) of article 709 by showing due diligence in attempting to procure Williams’ attendance at trial. Williams’ absence was due to his having forfeited bond and fled prosecution in this case. Defendant’s counsel was not able to subpoena Williams in spite of checking with law enforcement officers, Williams’ bondsman and Williams’ girlfriend.

The difficulty arises with the requirement in subparagraph (2) of article 709 that defendant show a probability that the witness will be available at the time to which continuance is granted. Defendant argues that State v. Dickerson, 282 So.2d 456 (La.1973) is applicable. In Dickerson a conviction was reversed due to denial of a new trial where motion to continue based upon absence of a material witness had been denied. Dickerson’s facts are distinguishable, however, in that the witness was available at the time of the motion for a new trial, and it was clear that his testimony would corroborate defendant’s position.

In his motion, defendant’s counsel alleges that allowance of additional time would provide an opportunity to locate Williams. This merely presented a possibility that the witness would be available at some later date rather than the probability of availability required by article 709(2).

No abuse of discretion was shown in the trial court’s denial of either of the motions to continue. The assignments lack merit.

Assignment of Error No. 2

Defendant contends the trial judge abused his discretion in denying his motion to quash the indictment based upon the allegation that the bill of particulars supplied by the State was inadequate.

Defendant was charged by short form indictment which entitled him to a bill of particulars from the State. State v. Bailey, 261 La. 831, 261 So.2d 583 (1972). The State furnished an answer to defendant’s petition for bill of particulars on April 9, 1976, and defendant objected to the insufficiency or lack of answers to seven questions posed in the petition.

On appeal defendant objects only to the State’s failure to answer the following question:

“Does the State possess any exculpatory evidence favorable to defendant?”

In argument on the motion to quash, the State responded that it did not possess any exculpatory evidence. Furthermore, it asserted, an adequate response had been given in its answer which stated:

“The State possesses no statements written or on tape made by the defendant.

This statement was in response to question number six which asked:

“Does the State possess any statements, either written or on tape, by the defendant, and if so, will the State make same available to petitioner?”

The trial judge, in denying defendant’s motion to quash, was obviously satisfied that the answers supplied by the State were adequate. The granting a motion for bill of particulars is a matter that rests within the sound discretion of the trial judge. His ruling will not be disturbed absent a clear showing of abuse resulting in prejudice to the accused. State v. Huizar, 332 So.2d 449 (La.1976); State v. Nelson, 306 So.2d 745 (La.1975); State v. Bailey, 261 La. 831, 261 So.2d 583 (1972).

The State’s answer that it possessed no statements by the defendant may not have been totally responsive to a request for exculpatory evidence which could reach well beyond defendant’s own statements. However, defendant makes no claim that there was any such evidence in the State’s possession. Nor is there any contention made, if there was exculpatory evidence which the State refused to disclose, that defendant’s failure to obtain this evidence from the State prejudiced his case.

There was no abuse of the trial court’s discretion in denying the motion to quash which would authorize this court to reverse the conviction. The assignment is without merit.

Assignment of Error No. 3

Defendant contends that the provision for mandatory life imprisonment at hard labor for distribution of heroin, R.S. 40:966(B)(1), is unconstitutional per se and that his motion to quash the indictment on that ground should have been granted. He alleges that imposition of such a penalty violates the 1974 Louisiana Constitution’s prohibition against “cruel, excessive, or unusual punishment.” Article 1, § 20. (Emphasis added). The trial judge, in denying the motion, refused to make a determination on the constitutionality of the act.

The constitutionality of R.S. 40:966(B) has been sustained previously. State v. Stetson, 317 So.2d 172 (La.1975).

In State v. Whitehurst, 319 So.2d 907 (La.1975), this court noted that those convicted under this statute still have available to them probation and parole, and that failure to consider mitigating circumstances does not render the punishment cruel, unusual or excessive. See also, State v. Perkins, 337 So.2d 1145 (La.1976). The federal courts have also upheld this statute’s constitutionality. Louisiana Affiliate of NORML v. Guste, 380 F.Supp. 404 (E.D.La.1974), aff’d, 511 F.2d 1400 (5th Cir. 1975), cert. denied, 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975).

Defendant raises no arguments regarding the statute’s constitutionality that have not been considered previously. The assignment is without merit.

Assignment of Error No. 5

Defendant contends that the trial judge’s ruling on his motion for an independent examination of the alleged heroin was prejudicial error in that the time limit set did not afford sufficient time for the examination and did not set guidelines for the examination.

Defendant filed the motion on April 20, 1976, for which hearing was set for May 7, 1976. The trial judge granted defendant’s motion which would have given defendant ten days until trial within which to obtain the independent examination. Defense counsel’s own testimony at the hearing revealed contacts for obtaining the examination had been made, and specifically, that one laboratory in Baton Rouge, where the substance was located, had indicated a willingness to conduct the tests. Defendant made no objection at the time the motion was granted to the insufficiency of the time, nor was a motion to continue based on these grounds ever filed.

Defendant argues that the trial judge’s failure to set guidelines or to grant more time to conduct the examination resulted in the denial of a realistic independent examination. Thus, he contends, the conviction should be reversed.

Defendant’s contention is without merit. Defendant is correct that where the offense charged is possession or sale of a prohibited substance that defendant may have a small amount of the drug for independent, pretrial inspection where a sufficient amount of the evidence exists. State v. Migliore, 261 La. 722, 260 So.2d 682 (1972). Guidelines should be fixed, if necessary, to control the time, place and manner of inspection.

However, C.Cr.P. 841 requires that objections must be made at the time of occurrence in order to give the judge an opportunity to correct any error. A new basis for an objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976).

Paragraph two of article 841, which provides that objection to the court’s ruling on a written motion is unnecessary, is inapplicable here. The Official Revision Comment to article 841 makes clear that objections are not needed when written motions have been filed since the court and the other party would be put on notice of the objection by the very filing of the motion. Such cannot apply where a motion is granted in that there would be no reason for either the judge or adverse party to expect the moving party to be distressed by the ruling. Therefore, objection was necessary.

Had defendant moved to continue at the moment of trial on the basis that the time for procuring the independent examination had proven insufficient, he may have been able to show good grounds to convince the trial judge to grant it. Since no such motion was made and since defendant did not urge his objection either at the time of the alleged error, or upon his motion for a new trial, the issue is not properly before the court for review.

The assignment is without merit.

Decree

For the reasons assigned, we affirm the conviction and remand to the trial court for resentencing in accordance with C.Cr.P. 873.


text:
    STATE of Louisiana v. Elree J. THORNTON.
    No. 59561.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.

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

Elree J. Thornton was indicted for the second degree murder of Irma L. Jackson, in violation of R.S. 14:30.1. Defendant waived trial by jury, was tried by the court alone, and was found guilty as charged. He was sentenced to life at hard labor. He now appeals the conviction, relying upon three assignments of error.

Facts

The offense occurred in a residential area. Defendant found his wife, Mary Thornton, in an extremely nervous state after an unsuccessful attempt to shoot herself, prompted by alleged harassment and threats she had received from her neighbor, Irma Jackson. Defendant took the gun from his wife and went outside where he found Mrs. Jackson in her driveway. As defendant testified, after a calm talk he saw Mrs. Jackson reach in her purse to get what he thought was a gun at which point he shot her repeatedly. Defendant deposited the gun in his garage, called police, and was subsequently arrested. He was removed a short distance from the scene by the arresting officer to avoid an angry crowd and was soon taken to police headquarters where a written confession was obtained.

Assignment of Error No. 1

In this assignment of error, defendant contends the trial judge failed to exercise his discretion by refusing to require answers to certain questions contained in an application for bill of particulars and in a prayer for oyer. In these questions defendant had requested (1) the names and addresses of all witnesses the State intended to use at trial, (2) a list of all physical evidence the State intended to use and the manner in which it was seized by police, (3) production of all written witness statements made against defendant which the State intended to use, (4) production of all physical evidence gained from any person, and (5) production of any photographs or drawings the State intended to use. The State had refused to answer these particular questions; the trial judge ruled at hearing that the answers provided were sufficient.

Defendant argues that the trial judge was merely ruling on the sufficiency of the answers as a matter of law without exercising the judicial discretion vested in him. Such, defendant contends, constitutes an abuse of discretion.

The purpose of a bill of particulars is to more fully inform defendant of the nature and cause of the charge against him with sufficient information to properly prepare his defense. C.Cr.P. 484. The bill of particulars, however, may not be used to discover details of evidence with which the State expects to prove its case. State v. Walker, 344 So.2d 990 (La.1977).

This court has repeatedly held that the granting of a motion for bill of particulars is a matter that rests within the sound discretion of the trial judge, and his ruling will not be disturbed absent a clear showing of abuse resulting in prejudice to the accused. See, e. g., State v. Huizar, 332 So.2d 449 (La.1976).

The trial judge’s ruling as to the sufficiency of the answers, in which he did not specifically state the grounds on which he relied, does not eliminate the possibility that he exercised his discretion in addition to ruling on their legal sufficiency.

Furthermore, it has been held that the defense is not entitled to pretrial discovery of names of State witnesses, descriptions of physical evidence, witness statements, photographs, or physical objects (except in the case of narcotics evidence, State v. Migliore, 261 La. 722, 260 So.2d 682 (1972)). State v. Phillips, 343 So.2d 1047 (La.1977); State v. Ball, 328 So.2d 81 (La.1976). La. Acts 1977, No. 515, providing for more liberal discovery in criminal cases which might have required production of physical evidence and photographs, was not in effect at the time of the filing of the motion for bill of particulars or prayer for oyer or the rulings thereon.

This assignment is without merit.

Assignment of Error No. 2

Defendant alleges that the trial court erred in overruling a motion to suppress a written confession. He contends that the written confession was tainted, arguing that it was obtained through interrogation based on a previous oral confession given without defendant being advised of his Miranda rights.

No contention was made that defendant’s written confession, obtained at police headquarters, was not made voluntarily or that defendant was subjected to coercion or threats. The argument is that the written confession is a “fruit of a poisonous tree” since the interrogating officers based their questions on information given by the arresting officer, Robert Law, that defendant had orally confessed to shooting the victim.

The testimony is somewhat conflicting. Officer Roland Brown, who asked a series of questions of defendant from which he elicited the confession, testified that although he was informed by Officer Law that defendant had stated he shot the woman, he did not base his interrogation on that information. However, Officer Fred Dan-tagnan, present at the interrogation but not personally questioning the defendant, testified that the information probably formed the basis of questions regarding what happened initially.

Even if the interrogation was based on information provided by Officer Law, we find that the oral confession was not illegally obtained. The record reveals that defendant approached Officer Law upon his arrival at the scene, told him he shot a woman, and led the officer to where the body lay. The statement was unsolicited and spontaneously given. Spontaneous, voluntary statements, not given as a result of custodial questioning or compelling influence, are admissible into evidence in spite of noncompliance with Miranda’s prior warning requirements. State v. Huizar, supra; State v. Thomas, 310 So.2d 517 (La.1975); State v. Holmes, 305 So.2d 409 (La.1974).

Defendant implies that the oral confession was obtained after arrest when no Miranda warnings had been given to defendant. Officer Law, however, testified that upon arrest and before defendant made any other statements regarding the homicide, he was orally advised of his Miranda rights. The question of whether or not Officer Law gave defendant Miranda warnings after his arrest is immaterial. Both interrogating officers indicated that the information conveyed to them was based on defendant’s statement made upon Officer Law’s appearance on the scene, not on any statements defendant made later. Furthermore, Law stated he told no one of what ensued in his conversations with defendant after arrest. Defendant also does not deny that the oral confession was made.

Since defendant’s oral confession was spontaneous and voluntarily given, it was legally obtained even without Miranda warnings. Hence, if the written confession resulted from interrogation based on information regarding the oral confession, it was likewise legally obtained.

The assignment is without merit.

Assignment of Error No. 3

Defendant alleges error in the trial judge’s holding that his written confession was voluntary and therefore admissible since his requests to obtain use of the telephone were denied. Defendant contends he intended to check on his wife’s mental state and safety and to obtain an attorney.

Defendant testified that upon his arrest he asked Officer Law if he could make a phone call, which request was denied. Law admitted that such a request was made but testified that he informed defendant his call could be made upon his arrival at police headquarters. At the time of his request, defendant was being detained in a police car about a block from the scene of the offense for the purpose of protecting him from the threats of an angry crowd that had gathered. Under the circumstances, Officer Law’s behavior was reasonable. Further, it would have made little sense for the officer to stop on his way to police headquarters to permit defendant’s use of a telephone when the defendant would be able to make his call upon arrival.

Officer Law left defendant with the interrogating officers, Brown and Dantag-nan, returning to his district without advising them of defendant’s desire to make a phone call. Defendant testified that he asked the interrogating officers for the opportunity to make his call but was told he would have to wait until his statement about the crime was made. His testimony, however, is in conflict with that of Brown and Dantagnan. Officer Brown testified that defendant was advised of his right to make a phone call, that he did not tell defendant he would have to wait until after a statement was given, and that no request to make a call was ever made. This was corroborated by Officer Dantagnan’s testimony that defendant never asked permission to use the telephone.

Voluntariness of a confession is a question of fact and the trial judge’s ruling thereon, based on conclusions of credibility and weight of the testimony, is given great weight. It will not be disturbed on appeal unless clearly unsupported by the evidence. State v. Simmons, 340 So.2d 1357 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. White, 321 So.2d 491 (La.1975). We find no such error in the trial judge’s ruling.

Furthermore, the record does not reflect any prejudice suffered by defendant by his failure to make his call until after interrogation. Defendant admits having been read his Miranda rights by the interrogating officers, and that he voluntarily signed a form waiving those rights, including his right to have counsel present during questioning or giving of any statement. Defendant also testified that he was well treated by the officers and that his statement was given freely, which militates against a conclusion that the officers refused to permit his use of the telephone.

The assignment lacks merit.

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


author: PER CURIAM. TATE, Justice,

text:
    STATE of Louisiana, Appellee, v. David BALLARD, Appellant.
    No. 59567.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Charles Brandt, Asst. Dist. Atty., for appellee.
   PER CURIAM.

The defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to 49V2 years at hard labor. He appeals his conviction and relies upon three assignments of error. Of these, Assignment 4 poses a serious issue. It concerns the use of “other crimes” evidence to prove system, La.R.S. 15:445.

The defendant is charged with the armed robbery of John Lowe on May 26. In aid of its proof of the contested issue of identity, the state (after appropriate Prieur pre-trial notice and showing) introduced proof of a robbery of Robert Daigle accomplished two days earlier, by a similar modus operandi.

The issue presented is very substantial and extremely close. A majority of the court has ultimately decided, however, that the trial judge did not abuse his discretion in finding that the probative value exceeded the prejudicial effect of the admission of the evidence of the other crime.

(1)

La.R.S. 15:446 literally provides: “ * * * where the offense is one of a system, evidence is admissible to prove . the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.” Thus, another offense may be used to prove guilty knowledge (i. e., to negate an innocent explanation for an admitted action) or intent (such as where specific intent must be proved). State v. Slayton, 338 So.2d 694 (La.1976); State v. Medlock, 297 So.2d 190 (La.1974).

However, knowledge and intent are not here at issue: The offender undoubtedly had the requisite general criminal intent to commit the robbery, while no innocent explanation is advanced (or could be, under the present facts) which makes guilty knowledge relevant to determine whether the conduct is unlawful. See State v. Slayton, 338 So.2d 694 (La.1976); State v. Clark, 338 So.2d 690 (La.1976); State v. Jordan, 276 So.2d 277 (La.1973).

Nevertheless, beyond the literal terms of the statute, jurisprudentially this court has held to be admissible, for limited purposes, proof of other crimes exhibiting almost the identical modus operandi or system, committed in close proximity in time and place. State v. Jones, 332 So.2d 466 (La.1976) (a pre-Prieur trial); State v. Price, 325 So.2d 780 (La.1976); State v. Vince, 305 So.2d 916 (La.1974); State v. Lawrence, 294 So.2d 476 (La.1974).

As the jurisprudence has clarified, not only must the other crime be distinctively similar in system, State v. Slayton, 338 So.2d 694 (La.1976), State v. Waddles, 336 So.2d 810 (La.1976), State v. Hicks, 301 So.2d 357 (La.1974), but the proof of the other crime as part of the system must be relevant to prove a fact of consequence to the accused’s present innocence or guilt (independent of the inadmissible purpose to infer that -the accused committed the present crime because he had committed the other one). State v. Ledet, 345 So.2d 474 (La.1977); State v. Frederick, 340 So.2d 1353 (La.1976); State v. Gaines, 340 So.2d 1294 (La.1977); State v. Hicks, 301 So.2d 357 (La.1974); State v. Harrison, 291 So.2d 782 (La.1974).

As summarized by us in State v. Gaines, cited above, at 340 So.2d 1297-98:

“Thus, the recent opinions of this court closely analyze the two transactions in order to determine whether they both exhibit such peculiar modes of operation to distinguish them as the work of one person. If this can be shown, then the evidence of the extraneous crime is highly relevant to identity, because the inference would be strong that the person who committed the other crime was the same person who committed the crime at bar (not because he is a ‘bad man,’ nor because of a proclivity toward such conduct, but because it is so unlikely that another person would carry out the crime in such a manner). In such cases the identification of the perpetrator of the extraneous crime is highly probative of the identity of the perpetrator of the crime for which the defendant is on trial and, thus, the evidence does not solely tend to prove the defendant’s bad character.”

Of course, as the cited decisions emphasize, not only must the other crime evidence first be found relevant to a material fact actually at issue, but the probative value must outweigh its prejudicial effect. See State v. Ledet, 345 So.2d 474 (La.1977). In emphasizing the limited purposes for which other-crime evidence may be used, and the limitations upon its use even for such purposes, Ledet summarizes the governing values in the exercise of the trial judge’s limited discretion to admit it, 345 So.2d 478:

“* * * Because of the substantial risk that the extraneous evidence may detract from the constitutional right to be presumed innocent until proven guilty beyond a reasonable doubt of the crime charged, other crimes can only be admitted after a ‘showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad behavior, and that it serves the actual purpose for which offered.’ ”

(2)

In the present case, the occasion for the state’s use of the other crimes evidence seems questionable. The victim of the robbery positively identified the accused as the man who had robbed him. In addition, the state introduced a confession of the accused implicating him in the crime.

On the other hand, the only witness to the crime was the victim. Although he positively identified the accused as his robber in court, his identification was subject to defense attack because the robber had covered his face with a red handkerchief. In the victim’s words: “He had a red handkerchief. He had his hand and held it over his mouth * * The robber held a gun in his other hand.

Aside from an attack on the voluntariness of the confession, the accused’s chief defense was to question the victim’s identification of the face-hidden robber as the accused.

The Lowe robbery occurred when the robber, with face half-hidden by a red handkerchief, came up to Lowe, a truck deliveryman, as he was unloading from the rear of his truck.

The other crime, the Daigle robbery two days earlier in the same neighborhood, likewise occurred as a deliveryman was in his truck preparing to make a delivery. The robber likewise came up with a gun in one hand and red handkerchief over the lower part of the face. The victim (Daigle) likewise positively identified the accused as his robber, even though his face had been half-hidden at the time of the robbery.

The red handkerchief and the gun were positively identified by both victims as those used in their respective robberies.

A majority of the court has concluded that the trial court did not abuse its discretion in finding the other-crime evidence relevant to the real issue as to the victim’s identification of the accused. The issue was not only whether the bushy-haired robber, with face half hidden, was indeed the accused, but also whether the victim could in fact identify anyone under such circumstances.

Arguably enough (so that a majority cannot say the trial court abused its discretion), the other-crime evidence was relevant to this hotly-contested issue, with probative value exceeding its prejudicial effect. The positive identification by the other victim of the accused as also robbing him by a distinctively similar technique relevantly tended to prove: (1) that his positively-identified robber was indeed the present robber, having the same description and using the same technique) and (2) that the robber identified by the present victim could be identified, despite the handkerchief covering the lower portion of the face and despite the lack of previous acquaintanceship and the excitement of the circumstances.

We therefore do not find merit in this substantial assignment of error, despite the persuasive arguments of the defendant’s counsel.

(3)

The other two assignments do not present insubstantial issues, although we do not find reversible merit in them:

(a) Assignment 8: The trial judge was in error in permitting the district attorney to read an excerpt from one of our opinions as to what constitutes a dangerous weapon. See State v. Elam, 312 So.2d 318 (La.1975). Such a practice may “cause the jury to give undue weight to those statements or portions of the charge identified with a court pronouncement.” 312 So.2d 321. Nevertheless, while the assignment is not insubstantial (the defense argument was that the unworkable child’s pellet pistol was not the sort of dangerous weapon that justified an armed robbery charge), we are not convinced that reversible error occurred, in the absence of claim that the excerpt misstated the law or that it could not have been properly paraphrased by counsel so as to give the same view to the jury.

(b) Assignment 11: In rebuttal argument, the prosecutor, over defense objection, demonstrated that a handkerchief over his face did not prevent the jury from identifying him. Even a courtroom demonstration by a sworn witness is subject to the requisite foundation of similarity of circumstances, see McCormick on Evidence, Section 215 (2d ed. 1972). While a demonstration during closing argument is permissible if founded on the evidence, State v. Roy, 220 La. 1017, 58 So.2d 323 (1952), the possibility of prejudice by the present demonstration is real. A majority has nevertheless concluded that, in total context, the error, if any, is not reversible; the record does not sufficiently demonstrate that the handkerchief covering the robber’s face really prevented clear recognition of his features, nor that the prosecutor did not cover his face in the same (possibly unconcealing) manner as the witnesses ascribed to the robber.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

SUMMERS, J., concurs in the decree.

DIXON and CALOGERO, JJ., dissent.

TATE, J., dissents and assigns written reasons.

TATE, Justice,

dissenting.

The writer believes that the marginally correct admissibility of the other-crime evidence (Assignment 4), when cumulated with the prejudice resulting from the improper demonstrative closing argument of the prosecutor (Assignment 11), require a reversal.

I should note an additional reason for my uneasiness with an affirmance — i. e., for my ultimate conclusion that admission of the other-crime evidence was unduly prejudicial:

The robbery occurred through use of a child’s pellet pistol, unworkable (according to the state’s witness). Since it was real in appearance, the jury could find it to be a dangerous weapon.

Nevertheless, a substantial part of the defendant’s argument was that, at most, he should be convicted of simple (not armed) robbery. Whatever merit this equitable argument had for the jury was doubtless dispelled by admission of the other crime — but two simple robberies should not equal one armed robbery.

Looking at the strength of the state’s case (a positive identification by the victim, plus a confession), this very well may have been the purpose of the state’s introduction of the other-crime evidence — that is, not to bolster identification (well-proved otherwise), but by cumulative effect to argue that the other (simple?) robbery tended to prove the accused was also guilty of this armed (?) robbery: However, the effect is to argue that the accused is an armed (not simple) robber because he is a bad man, a traditionally prohibited use of other-crime evidence.

I therefore respectfully dissent.

      . Here, neither of the armed robbery victims ever saw the defendant without a red bandanna handkerchief obscuring his face. The prosecutor was allowed, over defense counsel’s objections, to show the members of the jury that they could recognize him with a handkerchief over his face.
      The dangers inherent in such a demonstration are obvious. The jury, after observing the prosecutor for several hours during the course of the trial, would certainly recognize him even with his face partially obscured. This demonstration has no relevance to the question of whether the victim would recognize a robber whom he had never seen before, when the perpetrator’s face was similarly obscured.

      . On this issue, note also assignment 8, where the prosecutor improperly read and cited a supreme court decision defining a dangerous weapon, thus — contrary to our decision — adding the weight of the supreme court to his argument, whereas the jury is supposed to take the law from the judge’s instructions, not from argument of counsel.


text:
    STATE of Louisiana v. Albert REY.
    No. 59580.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.

      George W. Reese, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was convicted after trial by jury of possession of heroin with the intent to distribute. On appeal he relies on two assignments of- error for reversal of his conviction.

The record reflects the following facts. On March 14, 1975 a search conducted at the residence of Albert Rey pursuant to a warrant recovered the contraband upon which this prosecution is founded. The affidavit for the search warrant reads as follows:

“THE FACTS AND REASONS FOR THE REQUEST OF THIS SEARCH WARRANT ARE:
“1. On March 11, 1975 Officer Forrest Bethay received information from an extremely reliable confidential informant, whose information in the past has led to the arrest and convictions to the effect that Edward Kenner aka Buggie Red was selling heroin from his residence as described in the application for the search warrant. (In the city of New Orleans). The informant stated that on this date Kenner had sold two $15.00 bags of heroin (brown powder) wrapped in aluminum foil to a black male known only as Milt who fixed the brown powder in Kenner’s residence with Kenner’s syringe in his presence and the presence of the informant.
“2. On March 13, 1975 Officer Forrest Bethay spoke to the above informant again who stated he was at Kenner’s residence and observed him have approximately 100 aluminum foil packets in his possession and open four which contained brown powder and fix and inject into his arm with a syringe. The informant also observed a black female known as Gail to open one aluminum foil packet which contained brown powder (heroin) and snort the brown powder into her nose. Also while the informant was presence (sic) he stated that black males knocked on Ken-ner’s door and was (sic) admitted after Kenner opened his door slightly and observed who they were, the black males told Kenner they wanted six (6) things and Kenner went into the bedroom where he had placed the aluminum foil packets and returned handing one male all six packets and he paid Kenner $90.00 cash. The two males then left the residence. It should be noted that this informant is separate from all others mentioned in this search warrant application.
“3. On March 13, 1975 Officer Forrest Bethay received information from an reliable confidential informant, whose information in the past has led to the arrest and convictions, to the effect that Edward Kenner aka Buggie Red was observed to be in possession of no less than 30 aluminum foil packets in his front room of his residence as described in the application for the search warrant. An syringe, cotton, and a spoon was (sic) also observed in the front room. This informant further stated that on prior occasions he has seen Kenner in possession of several aluminum foil packets which contained heroin. This informant also related to Officer Bethay that on several occasions Kenner made the statement that if any dude or police would try to rip him for his dope or bust him, he would shoot them. The informant also stated that he has not seen Kenner cary (sic) a gun but has seen a rifle under his bed. It should be noted that this informant is separate and distinct from all others mentioned in this application for a search warrant. “4. On March 13, 1975 Officer Forrest Bethay set up surveillance on Kenners (sic) residence and observed Kenner at a gas station located off St. Bernard Ave. and N. Galvez St. getting into a 1968 Ford Green, La. Lie. 298B896 and drive to his residence in the 2000 Block of N. Tonti St., Kenner parked the vehicle in front his door got out looked around got back into the vehicle and exited again and went into his residence, at about 5:00 P.M. Officer Bethay observed a Black male walk up to Kenners (sic) residence and was admitted. The same male was observed to leave from the direction of Kenner’s residence in about five minutes and look up and down North Tonti St., then walk away. Officer Bethay observed a 1965 Chevrolet pull up onto N. Tonti St., La. Lie. 370B370 registered to Edward Kenner, with three black males all exited and walked toward Kenners (sic) residence, one of the males is known to Officer Bethay to be a Narcotic user he was driving and is known as Pitiful Bob. The three males were observed next walking hurriedly back to their vehicle look up and down N. Tonti St. and leave. Approximately 20 minutes later a late model buiek La. Lie. unk, red and black was observed to stop in front Ken-ner’s residence with two subjects, one male was observed to exit walk in Ken-ner’s residence direction and return running in about two minutes get back into the vehicle and drive off.
“5. It should be noted that Kenner has been arrested on one felony and three misterminers (sic) in the Parish of Orleans for Criminal District Court, also Ken-ner’s last arrest was on 9-LL-74 for carrying a cone, weapon.
s/ Forrest Bethay”

At the hearing on a motion to suppress the evidence obtained in the search, it developed that the affidavit incorrectly identified the suspect as “Edward Kenner aka Buggie Red;” in fact the person under surveillance was Albert Rey. The record reflects that there was an Edward Kenner, who, like the defendant, had a wife named Gail and who also lived in the same neighborhood as the defendant. Both Kenner and the defendant were nicknamed “Boogie Red” or “Boogie Rey.” It was not until Officer Bethay arrested the defendant that he learned his name was not Edward Ken-ner; the informer had pointed him out as “Edward Kenner aka Buggie Red.”

Assignment of Error No. 1

Defendant contends that the search warrant was invalid because of inaccurate statements intentionally made in the affidavit.

Because the invasion of home and privacy cannot be justified by misrepresentations, and in order to insure that the magistrate, and not the affiant, determines probable cause, this court has recognized on numerous occasions the defendant’s right to traverse the allegations made by the affiant. State v. Melson, 284 So.2d 873 (La.1973); State v. Giordano, 284 So.2d 880 (La.1973); State v. Cox, 330 So.2d 284 (La.1975); State v. Tassin, 343 So.2d 681 (La.1977). We have held that minor inaccuracies in the affidavit may not affect the validity of the search warrant (e. g. State v. Thomas, 329 So.2d 704 (La.1976); State v. Chaffin, 324 So.2d 369 (La.1976)).

The Fifth Circuit Court of Appeals was faced with this problem in U. S. v. Thomas, 489 F.2d 664 (5th Cir. 1973), cert. denied, 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975). That court noted that when faced with an affidavit containing inaccurate statements the preferred approach is to excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause. If, however, the misrepresentations were intentionally made, a different result is required. Because these distorted statements constitute a fraud upon the courts and represent impermissible overreaching by the government, a warrant based on an affidavit containing intentional misrepresentations must be quashed.

We are in agreement with the approach described by the Fifth Circuit and adopt it as our own. The primary purpose of the exclusionary rule is the deterrence of such deliberate governmental wrongdoing, and this policy is best served by quashing the warrant.

In the instant case, therefore, our inquiry becomes first, whether the inaccurate statements were intentionally made. If the misrepresentations are found to be unintentional, it must then be decided whether a showing of probable cause is made by the warrant without reference to the incorrect facts.

Testimony at the motion to suppress hearing clearly indicates that the error in identifying the suspect as “Edward Ken-ner” was not an intentional error. Both informants relied upon in the affidavit pointed out the defendant to Officer Be-thay, naming him as Edward Kenner. The error, therefore, was in the name only, not in the identification of the suspect.

Similarly, the reference to the 1965 Chevrolet registered to Edward Kenner does not indicate an attempt to deceive the magistrate. The car was not being driven by the person under surveillance, but rather by a black male known as “Pitiful Bob” with two unknown black male passengers. The identification of the car owner was not made in connection with an allegation of criminal activity.

Finally, the inclusion of the arrest record of Edward Kenner does not constitute an intentional misrepresentation. Officer Bethay, believing at the time the affidavit was made that the suspect’s name was Edward Kenner, simply included his police record in the affidavit. Defendant argues that Officer Bethay should have realized at that time that the suspect was not Edward Kenner because of the police practice of including a photograph of the individual in the police record. The testimony at the hearing, however, indicates that the picture is not always included and that Officer Bethay did not recall noticing one in Kenner’s records. We cannot, on the basis of the record, conclude that Officer Bethay through these actions evidenced an intent to deceive the magistrate.

Having determined that the misrepresentations were not intentional, we must now excise them from the warrant and examine the residue to determine whether probable cause was properly demonstrated. Considering the affidavit after the removal of the references to the name “Edward Kenner” and paragraph five in its entirety, we conclude that probable cause existed for the search of the residence described.

This assignment is without merit.

Assignment of Error No. 2

In his second assignment defendant contends that it was error for the trial court to refuse to order the State to furnish him with the past voting records of the jury panel.

The question of whether the defendant is entitled to the work product of the district attorney has not yet been squarely presented this court. In State v. Wright, 344 So.2d 1014 (La.1977), we specifically withheld judgment on the issue. In State v. Holmes, 347 So.2d 221 (La.1977), the defendant’s request was deemed premature because the voir dire had not yet been conducted. In both of those cases, however, we recognized that, absent a statutory right to privileged information or absent a showing of undue prejudice, hardship or injustice, the defendant does not have a right to the material. In the present case, the record indicates that the prosecutor assembled his information on the voting records of prospective jurors from the records in the office of the clerk of court and that the same records are available to any defense attorney. The defendant has failed to demonstrate the required prejudicial effect of the denial of access.

At this time we should note that the legislature has codified the work product privilege in C.Cr.P. 723 (Act 515 of 1977). While this article was not in effect at the time of this trial, and therefore not determinative of the issue, it does, nevertheless, indicate the sentiment of the legislature.

The assignment is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

      . As noted by the court in Thomas, the term “intentionally” must be used here to mean deliberate act made for the purpose of deceiving the magistrate.


text:
    STATE of Louisiana v. David Hill LAWRENCE.
    No. 59646.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.

      Henry H. Lemoine, Jr., Wilbert J. Saucier, Jr., Pineville, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., William E. Tilley, First Asst. Dist. Atty., Edwin L. Cabra, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

Defendant, indicted by the Vernon Parish Grand Jury for second degree murder, filed a motion to quash the indictment attacking the procedure used in selecting the grand jury. The trial court, after hearing, denied the motion. We granted supervisory writs to review the correctness of the trial court’s ruling. State v. Lawrence, 345 So.2d 54 (La.1977).

Testimony from the trial of the motion to quash indicates that the Vernon Parish jury venire is compiled in the following manner. The registrar of voters forwards a list of registered voters to the chairman of the jury commission. This list is supplemented periodically with the names of new registrants. The names on the list are transferred to index cards which are placed in a rotating drum. From this drum cards are drawn and questionnaires sent to each individual. The questionnaires are designed to determine the qualifications of the prospective juror and whether he desires to exercise any exemption available to him. After screening the questionnaires, the jury commission places the names of those remaining in a “hold box” from which the venire is selected.

Assignment of Error No. 1

Defendant asserts that the trial court erred in refusing to quash the indictment on grounds that the jury commission excluded persons they knew to fall within an exempted class without affording the prospective juror the opportunity to waive the exemption.

This court, pursuant to the authority granted by La.Const. art. V, § 33(B), adopted Supreme Court Rule 25, establishing groups of persons exempt from jury service. This rule provides:

“Section 1. It is the policy of this court that all litigants in Louisiana courts entitled to trial by jury shall have the right to grand, petit and civil juries selected at random from a fair cross-section of the parish wherein the district court convenes, that all qualified citizens shall have the opportunity to be considered for jury service in the district courts of Louisiana and shall have an obligation to serve as jurors when summoned for that purpose, and that no citizen shall be excluded from jury service in the district courts of Louisiana on account of race, color, religion, sex, national origin or economic status.
Adopted Oct. 24, 1974, effective Jan. 1, 1975.
“Section 2. This court finds that the exemption of the following groups or occupational classes is in the public interest and, accordingly, members of such classes are exempt from jury service;
(a) Public officers in the executive, legislative, or judicial branches of the Government of the United States, or the State, or any subdivision thereof, who are actively engaged in the performance of official duties;
(b) Members in active service in the Armed Forces of the United States and members of the National Guard or this State while on active service;
(c) Members of paid fire or police departments of the State or any subdivision thereof and federal law enforcement officers;
(d) Members of the following groups when regularly and actively engaged in the practice of their professions: attorneys at law, ministers of religion, chiropractors, physicians, dentists, pharmacists and optometrists;
(e) All persons over seventy years of age.
Adopted Oct. 24, 1974, effective Jan. 1, 1975.
“Section 3. Any person may waive his exemption from jury service, but the exemption is personal to him and is not a ground for challenge.
Amended Oct. 14, 1976, effective Jan. 1, 1977.
“Section 4. The jury commission shall not include in, and shall delete from, the general venire the names of those persons who have served as grand or petit jurors in criminal cases or as trial jurors in civil cases during a period of two years immediately preceding their selection for jury service. However, if the name of such a person is included in a general venire, that person may claim an exemption from jury service or may waive the exemption.
Added Oct. 14, 1976, effective Jan. 1, 1977.”

Defendant argues that the procedure employed by the Vernon Parish Jury Commission in dealing with persons who fall within an exempted class is identical to that held invalid in State v. Procell, 332 So.2d 814 (La.1976). In Procell we held that the Sabine Parish Jury Commission acted in contravention of Rule 25 and its constitutional underpinnings when it excluded persons who were members of exempted classes without affording them the opportunity to waive the exemption.

In the present case, the testimony of the four jury commissioners who appeared at the hearing on the motion to quash is in conflict. Commissioners G. W. Bass and P. E. Hernandez testified that prospective jurors were not excluded unless they indicated on the questionnaire that they chose to exercise their exemption. Commissioner N. B. Mayo, on the other hand, stated that “all lawyers, or judges, or what have you,” are excluded from the venire. Commissioner W. C. Turner, when asked if the commission did all the exempting, stated, “Yes sir. They are automatically exempt, though— lawyers and school bus drivers — they automatically exempt.”

Supreme Court Rule 26, § 2(a) provides:

“(a) The Jury Commission shall impartially select a general venire composed of all qualified persons, except:
(1) Those who are classified as excluded.
(ii) Those who are exempt and who, having been so advised, choose to claim the exemption.
(iii) Those who are timely excused by the court.”

Thus, if the testimony of Commissioners Bass and Hernandez is accepted as true, the practice of excluding from the venire those prospective jurors who chose to exercise their exemption would not be improper. (See State v. Reid, 340 So.2d 551 (La.1977).

Being cognizant of the limitations upon this court’s scope of review imposed by Art. 5, § 5(C) of the La.Const. and of the trial judge’s better capacity to evaluate the demeanor of the witnesses, we are not prepared to hold that, as a matter of law, the trial court erred in denying the motion to quash on this ground.

The assignment is without merit.

Assignments of Error Nos. 2 and 3

Defendant contends that the Vernon Parish Jury Commission practice of selecting the venire exclusively from the voter registration rolls systematically and arbitrarily excluded a substantial portion of the parish population, i. e. military personnel.

In State v. Daigle, 344 So.2d 1380, 1390 (La.1977), we expressed our concern over the propriety of using voter registration lists as the single source from which the jury venire is compiled. We held, however, that “. . .we cannot say that the use of voter lists without any showing in the record of any discrimination against a class of people establishes that the jury pool did not represent a fair cross-section of the community.”

Assuming military personnel to be a distinct class of people, the record fails to reflect their systematic or arbitrary exclusion. The registrar of voters of Vernon Parish testified that the only prerequisites to being included on the voter registration rolls are thirty days residence in the parish and completion of the application form. While the occupation of the voter is not determinable from the application, the registrar testified that she specifically remembered uniformed military personnel returning applications. Thus the. only class excluded from consideration by the jury commission are those persons qualified as prospective jurors who are not registered to vote, a class without any distinguishable, common characteristics.

The defendant, while possessed of the right to be indicted by a grand jury chosen from a fair cross-section of the community, does not have the right to a grand jury reflecting with mathematical precision the composition of the community. State v. Anderson, 315 So.2d 266 (La.1975); State v. Millsap, 258 La. 883, 248 So.2d 324 (1971).

Because the defendant failed to demonstrate the systematic exclusion of any identifiable segment of the community, this assignment is without merit. State v. Daigle, supra; State v. Taylor, 347 So.2d 172 (La.1977); State v. Jones, 332 So.2d 461 (La.1976).

For the foregoing reasons, the ruling of the trial court denying defendant’s motion to quash is affirmed and the ease remanded for further proceedings.

TATE and CALOGERO, JJ., were of the opinion that a rehearing should be granted.