author: MARCUS, Justice. DENNIS, J., TATE, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Roy CHENIER.
    No. 58578.
    Supreme Court of Louisiana.
    Feb. 28, 1977.

      Paul T. Thompson, Baker, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Robert H. Hester, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   MARCUS, Justice.

Roy Chenier was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged. After a hearing on an information filed by the district attorney accusing defendant of being an habitual offender, the trial judge found defendant to be an habitual offender and sentenced him to serve ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence with credit given towards service of sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence. We will consider these assigned errors in the order in which they appear in the record.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in overruling his objection and in denying his motion for a mistrial based on certain cross-examination by the state of defendant concerning a prior criminal conviction.

Defendant admitted during direct examination that he had on a prior occasion pleaded guilty to a charge of theft. On cross-examination, the district attorney referred to the bill of information charging that offense and propounded the following question:

Was that under bill of information 90,686, which charged you on the 10th day of January, 1972 with committing felony theft of a wrist watch valued in excess of a hundred dollars, property of Bob Johnson?

Defendant responded in the affirmative, whereupon defense counsel objected and moved for a mistrial outside the presence of the jury, arguing that reference to the name of the theft victim “Bob Johnson” was inflammatory and would tend to connect defendant with the beating several years earlier of an individual with the same name. The record does not support this contention. We note at the outset the name “Bob Johnson” is not an uncommon one. Moreover, the record is devoid of any evidence indicating that the jurors had reason to connect the Bob Johnson mentioned in defendant’s theft indictment with the Bob Johnson who had been beaten several years earlier. No suggestion was ever made during trial that defendant had been connected with that beating. Accordingly, we do not find that the mere mention of the name “Bob Johnson” as the theft victim designated in the bill of information was either inflammatory or prejudicial.

Defendant also argued as a ground for his motion for mistrial that the state’s question improperly referred to the details of defendant’s theft conviction and constituted a reference to another crime committed by defendant as to which evidence was inadmissible thereby entitling him to a mistrial under La. Code Crim.P. art. 770. It is well settled that evidence of prior convictions is admissible to question a defendant’s credibility when he chooses to take the stand and testify in his own behalf. La. R.S. 15:495; State v. Hatch, 305 So.2d 497 (La.1974); State v. White, 301 So.2d 321 (La.1974). Since such evidence is admissible, La. Code Crim.P. art. 770 is inapplicable.

Moreover, this court has held that it is permissible to cross-examine a defendant concerning the details of previous convictions in order to establish the nature of the offense. State v. Williams, 339 So.2d 728 (La.1976); State v. Jackson, 339 So.2d 730 (La.1976); State v. Elam, 312 So.2d 318 (La.1975).

In the instant case, defendant had admitted on direct examination only that he had pleaded guilty to a theft. Defendant did not testify concerning what was stolen, the value of the property taken, or whether the offense was a felony or misdemeanor. The disputed question of the district attorney on cross-examination sought only to put these basic facts contained in the bill of information charging the offense before the jurors so that they might better assess the defendant’s credibility in light of his past criminal conduct. The state was entitled to present this evidence in order to impeach defendant’s testimony. Moreover, other than the aforesaid question and defendant’s answer, no further evidence was adduced as to the details of defendant’s prior theft conviction.

In sum, we cannot say that the question propounded by the district attorney concerning defendant’s prior conviction was either improper or inflammatory. Accordingly, we do not find that the trial judge erred in overruling defendant’s objection and in denying his motion for a mistrial.

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in failing to rule on his motion to quash the indictment under which he was being prosecuted. In this motion defendant alleged that he had been denied his right to a speedy trial guaranteed in the state and federal constitutions.

On the day of trial and after the jury had been selected and sworn, defense counsel advised the judge that a motion to quash filed by defendant in proper person and based on denial of a speedy trial had not yet been disposed of. Defendant requested either a recess or an immediate hearing and disposition of this matter. Thereupon, the trial judge discharged the jury until the next day and proceeded with an immediate evidentiary hearing on the motion to quash. At the conclusion of this hearing, defense counsel indicated that he would like to reserve the right to submit certain court records and to adduce the testimony of an absent witness, Miss Debra English. The trial judge agreed to defer completion of the hearing and his ruling on the matter until such time as defendant was ready to present the remainder of his evidence. In the meantime, trial on the merits proceeded without objection. At no time either during trial or at the conclusion thereof did defendant inform the court either that he was prepared to go forward with the evidence he lacked at the initial hearing or that he desired a ruling based on the evidence already presented. We are of the opinion that where, as here, the completion of a hearing on a defense motion is deferred in order to afford defendant the opportunity to present further evidence, it is encumbent upon defendant to either present that evidence or inform the court that he no longer desires to do so. In the absence of such action on defendant’s part, we are unable to say that the trial judge committed reversible error in failing to rule on defendant’s motion to quash the indictment.

In any event, we have carefully reviewed the allegations of denial of a speedy trial raised in defendant’s motion to quash. This court has recognized that in determining whether this constitutional right has been violated, no fixed time period governs; rather, the conduct of both the prosecution and the defense are weighed in light of several factors: the length of delay; the reason for the delay; the defendant’s assertion of his right and the actual prejudice to defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Bullock, 311 So.2d 242 (La.1975). We are satisfied that the facts and circumstances of this case, when considered in light of the four factors set out in Barker, do not demonstrate that defendant has been denied his right to a speedy trial.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial judge erred in admitting testimony at trial relating to a pre-indictment lineup identification of defendant. He argues that the admission of this testimony violated his constitutional right to counsel because the same attorney who represented him at the lineup and who was in the best position to effectively cross-examine witnesses regarding that procedure did not also represent him at trial. This contention is without merit.

It is well established that neither the state nor federal constitutions guarantee a defendant the right to counsel at a pre-in-dictment lineup. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Bias, 337 So.2d 426 (La.1976); State v. Johnson, 327 So.2d 388 (La.1976); State v. Vince, 305 So.2d 916 (La.1974). While defendant in the instant case was represented at the pre-indictment lineup by an attorney from the public defender’s office, he was not constitutionally entitled to counsel during that procedure. Therefore, there is no basis to defendant’s argument that he had a constitutional right to representation by the same attorney at trial. Hence, the trial judge did not err in admitting testimony at trial regarding defendant’s pre-indictment lineup identification.

Assignment of Error No. 4 lacks merit.

For the first time in brief, defendant urges that the ninety-nine year sentence imposed by the trial judge constitutes cruel, unusual or excessive punishment and that the amendment of the bill of information filed against him from the charge of simple robbery to armed robbery subjected him to double jeopardy.

The record indicates that neither of these alleged errors was objected to at the time of their occurrence in accordance with La. Code Crim.P. art. 841 which provides that an irregularity or error cannot be availed of after trial unless it was objected to at the time of occurrence. Nor were the alleged errors designated in writing and filed in the trial court as errors to be urged on appeal as required by La. Code Crim.P. art. 844. Failing to follow the requisite assignment of errors procedures, the alleged errors cannot be considered on appeal unless they are discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La. Code Crim.P. art. 920.

An allegation that a sentence imposed constitutes cruel, unusual or excessive punishment under the particular circumstances of a case does not present an error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. State v. Anthony, 332 So.2d 214 (La.1976). Nor does the mere fact that a bill of information is amended to charge armed robbery, rather than simple robbery, present such an error.

Accordingly, these alleged errors are not properly before us for review.

DECREE

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

TATE, J., concurs and assigns written reasons.

DIXON, J., concurs.

CALOGERO,' J., dissents and assigns reasons.

DENNIS, J.,

concurs. Although I continue to disagree with the holdings in State v. Williams, 339 So.2d 728 (La.1976); State v, Jackson, 339 So.2d 730 (La.1976) and State v. Elam, 312 So.2d 318 (La.1976), in view of the unanimous decision of the court in the latter case, I concur in the result.

TATE, Justice,

concurring.

I agree with the views as to the law expressed in my brother Calogero’s dissent, as well as to the probable prejudice resulting from the unnecessary injection of the name of Bob Johnson into the present prosecution unrelated to the crime against him. However, I am not at this time prepared to find that the record before us demonstrates such prejudice.

On the other hand, I do recognize the difficulty of establishing the prejudice. This might require, at the least, establishing that the present jurors or the Baton Rouge population generally were as familiar with the incident involving Bob Johnson as are the members of this court, from our review of convictions involving the riot in which he was brutally beaten.

Absent such showing in the record, the writer is reluctant to find prejudice in the brief reference to Bob Johnson, fully recognizing that by so doing any real prejudice, if caused, is made virtually unreviewable by us.

CALOGERO, Justice,

dissenting.

I dissent, for I believe that there is merit in assignments of error numbers one and two.

It is true that, under the present majority view in this Court, details of a past convietion may be probed to establish the “true nature” of a crime, this being considered a matter which is relevant to the credibility of a witness. See State v. Jackson, 339 So.2d 730 (La.1976); State v. Williams, 339 So.2d 728 (La.1976); State v. Elam, 312 So.2d 318 (La.1975); State v. Jackson, 307 So.2d 604 (La.1975). I do not subscribe to that majority view as is evident from my dissents in State v. Jackson, supra, and State v. Jackson, supra. See also the criticism of State v. Jackson appearing at 36 La.L.Rev. 662-64 (1976).

The facts of the instant case amply illustrate the abuse to which the present rule is subject. The nature of the defendant’s pri- or conviction would have been adequately explained insofar as credibility is concerned if it had been shown only that a wristwatch valued at more than one hundred dollars had been stolen. The fact that the victim of the theft was Bob Johnson, the newsman who is still in a coma as a result of a brutal beating during the widely-publicized Black Muslim affair in Baton Rouge, Louisiana, would have been inadmissible under the rulings of this Court prior to State v. Jackson, supra (State v. Brent, 248 La. 1072, 184 So.2d 14 (1966); State v. Perkins, 248 La. 293, 178 So.2d 255 (1965); State v. Danna, 170 La. 775, 129 So. 154 (1930); see State v. Kelly, 271 So.2d 870 (La.1973)) and should have been inadmissible considering its very prejudicial effect and its low probative value on the question of credibility.

      . La. Code Crim.P. art. 535 provides that a hearing on a motion to quash need not precede trial on the merits but may be deferred at the discretion of the trial judge in order to avoid the need for a continuance.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Reginald B. MORRISON.
    No. 58579.
    Supreme Court of Louisiana.
    Feb. 28, 1977.

      Sargent Pitcher, Jr., Pitcher & French, Ltd., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant, Reginard B. Morrison, was charged by bill of information with second degree murder in violation of R.S. 14:30.1. On January 14, 1976, after a trial by jury, defendant was found guilty as charged. Subsequently he was sentenced to serve life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for a period of forty years. He now appeals his conviction and sentence to this court.

On April 28, 1974 Melinda Morrison, defendant’s wife, following an argument with defendant, went to defendant’s mother’s house, taking her child with her. Subsequently defendant arrived, took his wife out of the house and attempted to take her home, apparently using force. Carrie Morrison, defendant’s mother, sent a child inside her house to fetch Lawrence Holmes to separate the couple. Holmes came out of the house and apparently tried to stop the fighting. At this point, the wife got away and went back toward the house. Defendant, however, pulled a pistol from his pocket and fired three or four shots at pointblank range, hitting Homes three times in the head. Defendant was arrested almost two weeks later in New Orleans.

Defendant filed fifteen assignments of error. In brief, he has consolidated argument on assignment numbers 1 and 14, and on assignments of error numbers 2, 6, 7, 8, 9, 10, 12 and 15. Assignments of error numbers 3, 4, 5 and 11 are not argued and will not be discussed. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

Argument No. I

(Assignments of Error Nos. 1 and 14)

By these assignments of error defendant argues that portions of the assistant district attorney’s opening and closing statements were extremely prejudicial and improper and denied defendant due process as required by law. With respect to one remark by the prosecutor in closing argument, defendant contends that the trial court should have granted a mistrial.

Defendant’s argument in relation to these assignments of error are addressed to (1) a remark by the prosecutor indicating that defendant shot the deceased after the deceased had already been wounded and was lying on the ground. Defendant contends that this information came not from evidence introduced at trial but from a taped statement ruled inadmissible by the trial court; (2) the prosecutor’s remarks disregarded testimony of a witness that Holmes had a knife; (3) remarks by the assistant district attorney allegedly quoting a State witness, Mrs. Morrison, as testifying that she saw the deceased’s head bounce each time a shot was fired, when this evidence came from' inadmissible tapes and not from the record before the court; and (4) the remark by the prosecutor in closing argument referring to a crime committed by the defendant as to which evidence was not admissible.

(1) There was at least a justifiable inference from the evidence that defendant shot Holmes after Holmes had fallen to the ground. Four shots were fired. The testimony of the young witnesses fixed the time sequence of the shots. Holmes began to fall at the first shot. (2) The prosecution witness testified that Holmes was unarmed during the encounter; in a statement not admitted into evidence, she had said that Holmes carried a pocket knife, but made no effort to use it. (3) The prosecutor exaggerated testimony when he said in argument that Holmes’’ head bounced off the ground each time defendant shot. There is no such evidence in the record. Nevertheless, when counsel objected to the departure from the record, the jury was adequately admonished to rely on its own recollection of the testimony, not the lawyers’. (4) Evidence that defendant was on a pass from a correctional institution, and had been on parole after a conviction for simple robbery, was developed by cross-examination of defendant. The conviction itself was admitted by defendant on direct examination. There was no impermissible reference to other criminal conduct by the prosecution.

Argument No. II

(Assignments of Error Nos. 2, 6, 7, 8, 9, 10, 12 and 15)

Carrie Morrison, a woman in her mid-forties, was a principal witness for the prosecution. She was the mother of defendant, and, at least, a frequent and close companion of Holmes, who was killed. She told police what she had seen when they made their initial investigation of the shooting in her yard. A few days later she gave the police a tape-recorded account of the homicide, in which she detailed the killing, which she called “cold-blooded murder.” Her story depicted an unwarranted and brutal shooting of a would-be peacemaker.

At the trial, Mrs. Morrison could only recall that she “saw two hands go up; I heard the shots; and I saw Sonny (Holmes) on the ground; and I started screaming and hollering; and I don’t know nothing else after that. I just went for a blank — that’s it.” She not only testified that she remembered no more details, but that she did not want to remember-

The prosecutor was permitted to play Mrs. Morrison’s taped statement to her, out of the presence of the jury. She steadfastly denied that it refreshed her memory. The detectives who took the statement were called, but were not permitted to relate the contents of the statement.

These assignments of error relate to the prosecutor’s efforts to get before the jury the information contained. in Mrs. Morrison’s taped statement, the cumulative effect of which, argues the defense, was to deny a fair and impartial trial to the accused.

The record does not disclose any impropriety of the prosecutor in his efforts to place before the jury all available evidence of the homicide. The prosecution was vigorous and explored several avenues by which the damaging past-recorded, presently-forgotten details of the offense might be revealed to the jury. The defense was alert and convincing. The trial judge properly ruled as requested by the defense, and the accused was protected from trial by any testimony except that recalled and related by witnesses before the jury. No damaging details contained in the statement were revealed to the jury.

Complaint is made of the prosecutor’s remark to defendant when he was on cross-examination, “Oh, you’re — you’re cute.” Upon a request for a mistrial, the court admonished the prosecutor and instructed the jury to disregard the remark. A mistrial was not required under C.Cr.P. 770. State v. Dupuy, 319 So.2d 299 (La.1975).

On his motion for a mistrial, the defense related that, after the trial, when a juror was told of the contents of Mrs. Morrison’s statement, he said, “That’s what we figured was on it.” When defense counsel asked if the verdict had been based on the statement, the juror said, “That wasn’t the only thing it was based on.”

The new trial was properly denied. Jurors are incompetent to impeach their own verdicts. R.S. 15:470. Nor is there any allegation of fact, even if proved by competent evidence, to show jury misconduct in reaching its verdict.

We find no error in the assignments complained of by defense, nor do we find that their cumulative effect was to deprive the accused of a fair trial.

With respect to defendant’s sentence: he was given life imprisonment without benefit of probation, parole or suspension of sentence for a period of forty years. However, at the time the offense was committed the legal sentence was life imprisonment without benefit of probation, parole or suspension of sentence for a period of twenty years. (The offense was committed on April 28,1974, while the effective date of the increased penalties for violation of R.S. 14:30.1 was September 12, 1975). The case, therefore, must be remanded to the trial court for resentencing.

The conviction is affirmed; the sentence is set aside; the case is remanded for resen-tencing.

      . Although not argued in brief, among the specifications of error listed by defendant is a number 13, to the effect that the court erred in denying the defendant’s motion for a directed verdict because the State failed to produce any evidence to show that the defendant did not act in self-defense. There is no merit to the argument, The State produced several witnesses who testified in detail to the conduct of the defendant and the deceased immediately prior to the shooting. The factual evidence adduced by the State uniformly negated self-defense.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. William T. LAVENE, Appellant.
    No. 58602.
    Supreme Court of Louisiana.
    Feb. 28, 1977.

      Byron J. Casey, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of aggravated battery. La.R.S. 14:34. He was sentenced to one year’s imprisonment in the parish prison, to be served on weekends. His appeal relies upon a single assignment of error, the allegedly incorrect denial by the trial court of the defendant’s motion for a new trial.

1. Timeliness of the appeal

Initially, however, the state suggests that the appeal should be dismissed because of tardy filing in this court. It points out that the record was not filed in this court until September 14, 1976, although the last extended return date fixed by the court was June 14.

However, La.C.Cr.P. art. 917 expressly provides: “It shall be the duty of the clerk of court to file the transcript of the record on or before the return day. Failure of the clerk to file the transcript of the record on or before the return day shall not operate as an abandonment of the appeal.” (Italics ours.)

There is thus no merit to the state’s contention. Because of contentions here made, however, we deem it appropriate to discuss more fully the applicable legislation as to (a) the return date for filing the transcript of the appellate record in this court and (b) the time within which assignments of error may be filed.

(a) Return day for transcript of record

The trial court is required to fix a return day for the appeal, La.C.Cr.P. art. 915, may extend it, art. 919, and retains jurisdiction after the appeal is granted to extend the return day, art. 916(1). The return day, initial or extended, fixes the time within which the clerk shall prepare and deliver the transcript of the record to the appellate court. Art. 917.

The' clerk may obtain extensions of the return day needed for him to complete the record. La.R.S. 13:4438 (1960). By rule of this court, the extension of the return day by the trial judge is subject to close supervision designed to assure against unnecessary delay. La.Supreme Court Rule 919.1 (1976). Nevertheless, while the clerk’s failure to obtain timely an extended return day may be cause to deny his request for further extension, La.C.Cr.P. art. 919, Official Revision Comment (b), his failure to do so may not prejudice the appellant nor cause the dismissal of his appeal, art. 917 (quoted in full above).

In the present instance, the delay of the clerk in filing the record is not shown to be due to any delay by the appellant in filing his assignments of error. Even had the assignments of error not been filed timely, however, the clerk is not required to delay filing the transcript until they are filed (although of course he may obtain an extended return day to permit their filing). No statutory requirement prevents him from filing the record by the return day, without the assignments of error.

(b) Time for filing of assignments of error

Assignments of error are designations in writing of the errors to be urged on appeal and are to be filed with the trial court, which may submit per curiam comments. La.C.Cr.P. art. 844 (1974). Except for “patent error”, the reviewing court may consider only errors so designated. Art. 920(1).

By Act 207 of 1974, which replaced the bills of exceptions with the assignments of error procedure, the t*;al court is authorized to fix the time within which assignments of error are to be filed (Art. 844), to extend the time for filing assignments of error after being divested of jurisdiction by the appeal (Art. 916(1)), and to receive assignments of error after the appeal so divests him of jurisdiction (Art. 916(5)).

The purpose of these 1974 amendments to these articles was to grant the trial court full authority to extend the time for filing assignments of erroj at any time after the appeal is granted, including after the record of the appeal is lodged in the appellate court. The tenor of these amendments was that this authority should be liberally exercised in favor of affording appellants their day in the appellate court. The remedy against any delay of appointed or retained counsel in preparing and filing assignments of error may be discipline of dilatory counsel; it is not denial of appellate review to his client because of his delay.

In the present instance, counsel for the appellant filed his assignment of error on June 9, 1976. At this time, he secured an extension of the return day to June 14. The record indicates that counsel had secured several prior extensions to file the assignments, due to the failure of the court reporter to complete the full transcript ordered, the last of which ended on June 9, with the return day on that date being extended to June 14.

We find no hiatus in the extensions. Nevertheless, even if there had been one (as suggested), the trial court was authorized on June 9 to grant the extension and to receive the assignments of error filed on that date by the 1974 amendments to Article 916(1), (5) of the Louisiana Code of Criminal Procedure.

Accordingly, we find that both the appeal and the assignment of error were timely filed.

2. On the merits

The single assignment of error relates to the denial of a motion for a new trial. The motion for a new trial was based on the ground that newly discovered evidence clearly indicates that the state witnesses were mistaken in their identification of the defendant as the man who committed the battery.

The newly discovered evidence was photographic corroboration that the accused was wearing a black shirt at the time of his arrest, shortly after the battery.

The accused’s principal defense was that he was mistakenly picked out of the crowd as the man who had hit the policeman-victim at a Mardi Gras parade. His evidence, if believed, showed that instead the policeman was hit by a man who closely resembled him, who was wearing a white shirt.

The significance of the newly discovered evidence, he contends, is that it shows that the only eyewitness (Brother Michael) to the battery other than the victim was mistaken, in that allegedly he described the man who hit the policeman from the group as wearing a white shirt.

Nevertheless, on examination of the trial record, Brother Michael did not positively identify the then-unknown assailant as wearing a white shirt. When first asked to describe this person’s attire, he replied: “He was wearing a T-shirt, I believe. He was wearing a black or white T-shirt— white T-shirt, I believe.” Tr. 37. Later, in answer to another question, he replied: “I believe, he was dressed in a white T-shirt.” Tr. 39.

Despite this lack of certainty as to the color of the assailant’s shirt, Brother Michael was positive in his identification of the present accused as the man who committed the battery on the officer. The officer was likewise positive in his identification.

The trial testimony of the other officers and of the accused himself indicates he was wearing a black T-shirt, at the time the victim pointed out the accused as his assailant and at the time of his arrest. Tr. 21, 50, 117.

A principal issue in the jury-waived trial before the judge was whether the officer-victim and the witness (Brother Michael) were mistaken in their identification of the accused (wearing a black shirt) as the man who committed the battery, instead of Joe G. (who was wearing a white shirt), the true offender according. to the accused’s defense.

The great weight of the trial testimony is to the effect that the accused was wearing a black shirt. The photographic evidence offered as a basis for a new trial was merely corroborative of this fact.

Under the circumstances, we find no abuse of the trial court’s exercise of its large discretion in granting or denying a new trial on the ground of newly discovered evidence.

The newly discovered evidence should be of a nature that, “if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.” La.C.Cr.P. art. 851(3). Cumulative evidence as to an issue fairly disclosed and decided at the trial is ordinarily not of this nature. State v. Gibson, 323 So.2d 446 (La.1975); State v. Santos, 309 So.2d 129 (La.1975). More important, the new evidence, whether cumulative or not, is not of such import that, if introduced at the trial, it would have been of material significance with regard to changing the finding of guilt. State v. Phanor, 325 So.2d 579 (La.1976); State v. Drake, 319 So.2d 427 (La.1975); State v. Jackson, 253 La. 205, 217 So.2d 372 (1968).

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

SANDERS, C. J., concurred in the decree.

CALOGERO, J., recused.

      . See also art. 915 A: “ * * * When a motion for appeal has been timely filed, an appeal may not be affected by any fault or omission on the part of the trial court.”


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Roland RANKER.
    No. 58682.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Maurice Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lawrence J. Centola, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The defendant, Roland Ranker, was convicted of armed robbery, La.R.S. 14:64, and sentenced, as a multiple offender, to ninety-nine years at hard labor. On appeal he assigned numerous errors, and we find merit in defendant’s first assignment.

Prior to trial defendant unsuccessfully moved to suppress as evidence a brown tank-top shirt seized by police officers at the time of his arrest. At trial the shirt was introduced, over defendant’s objection, as evidence linking him to the robbery.

The facts giving rise to the seizure of the tank-top shirt, as established at the hearing on the motion to suppress, are as follows:

At approximately 10:00 a. m. on August 19, 1975, twelve days after the armed robbery for which defendant was convicted, two New Orleans police officers were fired upon by an unknown black male. Relying on a general description of the assailant as a man of “stocky build” with an Afro hairdo and a Fu Manchu mustache, two other officers, Harry Smith and his partner, were patrolling the vicinity of the shooting looking for the assailant. At approximately 12:00 noon they received information by radio that a subject fitting the description had been sighted in the same neighborhood by another policeman. The suspect, who had eluded the officer on Duplessis Street, was then wearing a brown tank-top shirt and brown slacks.

About an hour later Officer Smith and his colleague received an anonymous phone call forwarded by police radio informing them that “the subject who had a shoot out with the police was at 4016 Duplessis Street.” Officer Smith testified that neither he nor his partner recognized the caller, who had not identified himself. Nevertheless, based on this information, the officers, without obtaining an arrest or search warrant, went to an apartment at the stated address and upon hearing what sounded like “movement inside the house,” entered the residence yelling “police.”

Once inside, after walking through the kitchen and living room, the officers heard “some movement upstairs,” and called for “whoever was up there” to come down. The defendant, Roland Ranker, came downstairs, and the officers, finding that his physical description matched that of the suspect sought, immediately placed him under arrest. However, the defendant was not wearing the brown tank-top shirt.

Officer Smith then conducted a search of the entire house for other occupants. None were found, but from the top of a clothes hamper in the bathroom upstairs Officer Smith retrieved the brown tank-top shirt which was the subject of the motion to suppress. The shirt was seized not only because it matched the description of the clothing worn by an individual thought to be the gunman who had fired on the other officers earlier that day, but also because it fit the description of clothing worn by the perpetrator of certain armed robberies then under investigation by the police.

The record does not reflect whether the dwelling in which the defendant was arrested belonged to him or someone else.

I.

A troublesome question presented by this case is whether the police, in non-exigent circumstances, are required to obtain a warrant before acting, not only in case of entry of a dwelling to search for property, but also in case of entry to arrest a suspect.

Louisiana Code of Criminal Procedure Article 213(3) purports to authorize war-rantless arrests whenever the officer has reasonable cause to believe the person to be arrested has committed an offense. We have grave doubts whether the provision may be constitutionally applied where an officer, although having probable cause to arrest, makes an unauthorized entry of a dwelling to effect the arrest under non-exigent circumstances. Our doubts are premised on the proscriptions against unreasonable searches and seizures contained in Article I, § 5 of the Louisiana Constitution (1974), and the Fourth Amendment to the United States Constitution.

Article I, § 5 of the 1974 Louisiana Constitution provides:

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”

An application of this language to the facts of the instant case would appear to have required the issuance of a warrant before the search, seizure and invasion of privacy.

The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The United States Supreme Court has not yet resolved the issue of whether the Fourth Amendment requires a warrant for non-exigent arrests within the home. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (footnote 6, and separate concurring opinions of Justices Powell and Stewart); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (footnote 13). Nevertheless, the Supreme Court has not been entirely silent with respect to the issue. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a majority of the Court agreed with the following proposition:

“It is clear, then, that the notion that the warrantless entry of a man’s house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man’s house without a warrant are per se unreasonable in the absence of some one of a number of well defined ‘exigent circumstances.’ ” 403 U.S. at 477-78, 91 S.Ct. at 2044, 29 L.Ed.2d at 589-90. •

The Court further noted in Coolidge, that:

“The case of Warden v. Hayden [387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)], where the Court elaborated a ‘hot pursuit’ justification for the police entry into the defendant’s house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances.” 403 U.S. at 480-81, 91 S.Ct. at 2045, 29 L.Ed.2d at 591.

However, the Court found it unnecessary to decide the question in Coolidge. The Supreme Court again failed to resolve this issue in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), concluding that the “validity of Johnson’s arrest” was “beside the point” because “no evidence which might properly be characterized as the fruit of an illegal entry and arrest was used against him at his trial.” 406 U.S. at 365, 92 S.Ct. at 1626, 32 L.Ed.2d at 161. Consider, however, the colloquy at oral argument following the assertion by the attorney for the state that it would be unreasonable to require the police to obtain a warrant:

“Mr. Justice Stewart: Are you familiar with this Court’s case in Warden v. Hayden ?
“[Attorney for the 'State]: Yes, Your Honor, I am.
“Mr. Justice Stewart: Well, why do you think this Court spent so long in carving out an exception if there is no general rule that you cannot enter a house without a warrant?” Y. Kamisar, W. LaFave, J. Israel, Modern Criminal Procedure, p. 311 (4th ed. 1974).

Compare, Note, The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan.L.Rev. 995, 996 (1971), which argues that a search warrant should be required in order to “obtain a magistrate’s determination that there is probable cause that the person sought is within the place to be entered and searched.”

While the United States Supreme Court has not finally resolved the question, we are aware that a significant number of federal and state appellate courts have found the protection of the Fourth Amendment of the federal constitution against violation of the right of the people to be free of unreasonable searches and seizures extends to arrests within the home, and that warrantless arrests within the home are per se unreasonable absent exigent circumstances. Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc); Vance v. North Carolina, 432 F.2d 984 (4th Cir.1970); United States v. Shye, 492 F.2d 886 (6th Cir. 1974); United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974); United States v. Weinberg, 345 F.Supp. 824 (E.D.Pa.1972), aff’d in part, 478 F.2d 1351 (3d Cir. 1973), cert. den., 414 U.S. 1005, 94 S.Ct. 363, 38 L.Ed.2d 242 (1973); United States v. Rodriguez, 375 F.Supp. 589 (S.D.Tex.1974), aff’d, 497 F.2d 172 (5th Cir. 1974); People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333 (1976); Commonwealth v. Forde, Mass., 329 N.E.2d 717 (1975). But see, United States ex rel. Falconer v. Pate, 319 F.Supp. 206 (N.D.Ill.1970), aff’d without opinion, 478 F.2d 1405 (7th Cir. 1973), cert. den., 414 U.S. 1094, 94 S.Ct. 726, 38 L.Ed.2d 551 (1973); State v. Perez, 277 So.2d 778 (Fla.1973), cert. den., 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 468 (1973).

There is authority in other states for the proposition that police may enter a person’s house and look for him when they have grounds to arrest him, although there exists some uncertainty as to how likely it must appear that the defendant is there. People v. Eddington, 23 Mich.App. 210, 178 N.W.2d 686 (1970), aff’d, 387 Mich. 551, 198 N.W.2d 297 (1972); People v. Sprovieri, 95 Ill. App.2d 10, 238 N.E.2d 115 (1968). But there is also authority to the effect that a search warrant is ordinarily required when the defendant is sought elsewhere. England v. State, 488 P.2d 1347 (Okl.Cr.1971). But cf. Lankford v. Gelston, 364 F.2d 197 (4th Cir.1966); United States v. Brown, 151 U.S.App.D.C. 365, 467 F.2d 419 (1972).

However, we find it unnecessary to reach the ultimate question of whether the war-rantless arrest of an accused in his home is per se unreasonable absent exigent circumstances, for the issue presented by the present case may be resolved by resort to well established jurisprudence.

We have repeatedly held that a warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on the arresting officer’s reasonable belief that the person to be arrested has committed or is committing an offense. State v. Jackson, 337 So.2d 508 (La.1976); State v. Scott, 320 So.2d 538 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); State v. Odom, 292 So.2d 189 (La.1974). Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Marks, 337 So.2d 1177 (La.1976); State v. Randolph, 337 So.2d 498 (La.1976); State v. Gilmore, 323 So.2d 459 (La.1975); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest. State v. Randolph, supra.

In the case at bar, the police of course knew the suspected gunman had been seen on Duplessis Street. But their only specific information had come from an anonymous tipster, not a reliable informant who previously had given information leading to arrests and convictions. The source of the information was not revealed to the officers. The informant’s tip was starkly devoid of any details, such as a description of the defendant or his clothing, which might tend to indicate that the information was reliable. The officers did not place the apartment under surveillance, make any attempt to determine who resided there, or use any means to verify the reliability of the tip before making entry. Thus in contrast with the factual situation in State v. Marks, supra, for example, the police officers here were not armed with information from a reliable informant which they personally verified before taking measures to arrest the occupant of the apartment. See, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Indeed, they had not even been informed of any of the underlying circumstances from which the anonymous informant concluded that the person who had the shoot out with the other policemen was at 4016 Duplessis Street. Compare, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Under the facts and circumstances here, the police officers did not have probable cause and reasonable grounds to believe that a person who had shot at other police officers earlier in the day was in the apartment at 4016 Duplessis Street. At most they had information sufficient to arouse a suspicion and warrant further investigation. The arrest was therefore unlawful, and the subsequent search and seizure, as direct concomitants of that unlawful arrest, were likewise invalid. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Lawrence v. Henderson, 344 F.Supp. 1287 (E.D.La.1972); State v. Kinnemann, 337 So.2d 441 (La.1976); State v. Saia, 302 So.2d 869 (La.1974).

II.

An additional reason exists for suppressing the evidence obtained through the search seizure conducted in the present case. Even if the arrest had been valid, the scope of the search exceeded that which could have been conducted incident to a lawful arrest.

The State, relying on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), wherein the United States Supreme Court recognized as legitimate the interest of police officers in insuring their own safety at the time of an arrest, argues that Officer Smith was justified in searching the entire house to insure that no other persons were present who might endanger the safety of the officers making the arrest. Furthermore, the State contends that the shirt, being in “plain view” as defined by Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1974), was lawfully seized when the officer inadvertently discovered it in the upstairs bathroom. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

In Chimel v. California, supra, the United States Supreme Court considered whether the warrantless search of a defendant’s entire house can be constitutionally justified as incident to his lawful arrest there. The high Court stated:

“ * * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of a person arrested. There is ample justification, therefore, for a search of the ar-restee's person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
“There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less. * * *
“It is argued in the present case that it is ‘reasonable’ to search a man’s house when he is arrested in it. But that argument is founded on little more than a subjective view regarding the acceptibility of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively ‘reasonable’ to search a man’s house when he is arrested on his front lawn — or just down the street — than it is when he happens to be in the house at the time of arrest. * * * No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other.” 395 U.S. at 762-66, 89 S.Ct. at 2040-42, 23 L.Ed.2d at 694-96. (Emphasis supplied.)

In the present case, the search encompassed the entire residence, not simply the area within the immediate control of the defendant. The scope of the search greatly exceeded the limited exception to the warrant requirement sanctioned by the Supreme Court in Chimel. See also, United States v. Anderson, 175 U.S.App.D.C. 75, 533 F.2d 1210 (1976).

In Coolidge v. New Hampshire, supra, the Supreme Court recognized that

“ * * * under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal. * * * Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in ‘hot pursuit’ of a fleeing suspect. And an object which comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant. Finally, the ‘plain view’ doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.
“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. * * * ” 403 U.S. at 465-66, 91 S.Ct. at 2037-38, 29 L.Ed.2d at 582-83. (Emphasis supplied.)

The State has urged, as a prior justification for the instant search and seizure, the right of the police to insure their safety at the time of the arrest. The State argues that the officers had heard “sounds” upstairs, and therefore acted reasonably in searching the entire house for other persons. It does not appear, from Officer Smith’s testimony, that any sounds suggesting the presence of other persons in the house were heard after the defendant came downstairs. Furthermore, the arrest was completed before the search was begun. The officers could have amply insured their safety by removing the defendant from the premises immediately. Therefore, the intrusion into the upstairs rooms which brought the police into view of the tank-top shirt was not supported by any of the recognized exceptions to the warrant requirement, and its seizure was unlawful.

For the foregoing reasons the 'defendant’s motion to suppress was improperly denied and the seized tank-top shirt was unlawfully received into evidence at the trial. A substantial violation of defendant’s rights resulted, requiring reversal of his conviction and sentence. La.C.Cr.P. art. 921.

The defendant’s conviction and sentence are set aside, and the case is remanded to the district court for a new trial,

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

       Defense counsel, interrogating Officer Smith at the hearing, elicited the following testimony:
      “Q. What happened when you arrived at this address?
      A. We had heard some scuffling inside.
      Q. What do you mean by ‘scuffling?’
      A. Movement. I can’t explain it any more than that. It sounded like movement inside the house.
      Q. Did you think a felony was being committed at this particular time?
      A. We had reason to believe, after chasing the subject all day long.
      Q. How did you know that was the subject you were chasing?
      A. We didn’t know.

      “Q. How did you know this was the individual you were chasing?
      A. At the time we were at the door, we didn’t, until we went inside.
      Q. You really didn’t know if a felony was being committed inside that apartment?
      A. No, we didn’t.
      Q. Did it dawn upon you to get a search warrant?
      A. No.
      Q. Did you open the door and go in?
      A. Yes.
      Q. Did you find anybody in the apartment?
      A. We heard some movement upstairs and we yelled for whoever was up there to come down and the defendant came downstairs.”


author: TATE, J.,

text:
    David MUSTIFUL v. F. Norman GALLASPY.
    No. 59297.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: David Mustiful, applying for Cer-tiorari, or writ of review, to the Court of Appeal, 340 So.2d 659, Second Circuit, Parish of DeSoto.

Not considered. Not timely filed. See Rules of the Supreme Court, Rule X, Sec. 4(b).

TATE, J.,

concurs. Rehearing was denied in the court of appeal on January 10, 1977. The application for writs was not mailed until February 10, one day past the 30 day delay.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Charles McMICKENS and Lynn McMickens.
    No. 59352.
    Supreme Court of Louisiana.
    March 23, 1977.
   In re: Charles McMickens and Lynn McMickens applying for writs of certiorari, prohibition and mandamus.

Granted. The trial court’s denial of the motion for oyer is overruled, insofar as it denied production for inspection or copying of books, records, exhibits seized from the defendants or their business, and the motion is granted to that extent.

SUMMERS, J.,

dissents from this ex parte extension of the rule of pretrial discovery in criminal cases without articulating the basis for the ruling.


author: DIXON, J., CALOGERO and DENNIS, JJ.,

text:
    STATE of Louisiana v. Jerry N. CHANCE.
    No. 59328.
    Supreme Court of Louisiana.
    March 23, 1977.
   In re: Jerry N. Chance applying for writs of certiorari, prohibition, mandamus and stay order

Writ denied. No merit in application.

DIXON, J.,

dissents from the refusal to grant. From the application, it appears there has been no pretense of compliance with Art. I, Sec. 19, La.Const. of 1974.

CALOGERO and DENNIS, JJ.,

are of the opinion the writ should be granted, and an evidentiary hearing held to determine whether defendant intelligently waived his rights to “a complete record of all evidence upon which the judgment is based,” which minimally means a recordation of the evidence at trial.


author: DIXON, J.,

text:
    STATE of Louisiana v. Thomas L. SIMS.
    No. 59338.
    Supreme Court of Louisiana.
    March 23, 1977.
   In re: Thomas L. Sims, applying for writ of review.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.'

DIXON, J.,

dissents from denial.


author: TATE and CALOGERO, JJ., DENNIS, J.,

text:
    Patricia A. ROTHWELL, wife of/and Louis A. Rothwell v. The DEPARTMENT OF HWYS. of the State of Louisiana.
    No. 59398.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Patricia A. Rothwell, wife of and Louis A. Rothwell, applying for writs of certiorari, prohibition and mandamus.

Application denied; the result is correct.

TATE and CALOGERO, JJ.,

are of the opinion that a writ should be granted.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Jack M. DELANEY.
    No. 59544.
    Supreme Court of Louisiana.
    March 22, 1977.
   In re: Jack M. Delaney applying for writs of certiorari, mandamus and prohibition.

Writ denied. The ruling of trial judge is correct.


text:
    CITY OF LAFAYETTE v. Cleveland J. MAGNON, Sr.
    No. 59406.
    Supreme Court of Louisiana.
    March 23, 1977.
   In re: Cleveland J. Magnon, Sr. applying for writs of certiorari, prohibition, mandamus and stay order.

Application not considered, because it is not timely. The extension of the time for filing was not granted until the original time for filing (return date) had expired.


text:
    STATE of Louisiana ex rel. Larry Charles HIGH v. Jessel OURSO, Sheriff.
    No. 59391.
    Supreme Court of Louisiana.
    March 23, 1977.
   In re: Larry Charles High applying for writs of certiorari, mandamus, prohibition, habeas corpus and stay order.

Writ refused. No merit in application.


text:
    Jimmy (P. G.) STANSBURY v. CITY OF OPELOUSAS.
    No. 59357.
    Supreme Court of Louisiana.
    March 23, 1977.
   In re: Jimmy (P. G.) Stansbury, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 341 So.2d 33.

Writ refused. The result is correct.


text:
    STATE of Louisiana ex rel. Warren L. HENRY v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 59326.
    Supreme Court of Louisiana.
    March 23, 1977.
   In re: Warren L. Henry, applying for remedial writs.

Writ denied. In view of the trial judge’s response that relator has not filed nor was he granted a post conviction hearing other than his appeal, relator must first make application to the district court before seeking relief in this court.


text:
    STATE of Louisiana v. Lionel FIELDS.
    No. 59317.
    Supreme Court of Louisiana.
    March 23, 1977.
   In re: Lionel Fields applying for writ of certiorari.

Writ denied. In view of the trial judge’s response and the granting of an out-of-time appeal, this matter is moot. It is further ordered that the O.I.D.P. be furnished with a copy of relator’s application herein.


text:
    STATE of Louisiana v. Ronald J. KATELY.
    No. 59330.
    Supreme Court of Louisiana.
    March 23, 1977.
   In re: Ronald J. Kately, applying for remedial writs.

Writ denied. Treating this record and the accompanying brief as a writ application, there is no merit to the application. Rule 1, § 11, Rules of the Supreme Court.


text:
    SOUTH CENTRAL BELL TELEPHONE CO. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 59541.
    Supreme Court of Louisiana.
    March 24, 1977.
   In re: Louisiana Public Service Comm, applying for supervisory writ of Review and Stay Order.

Writ denied: Adequate remedy by devol-utive appeal or by answer to the utility’s appeal, since the respondent utility may be ordered to refund any portion of the rate-increase held to be excessive on appeal.


text:
    STATE of Louisiana ex rel. Harwood E. LOWE v. Mr. J. D. MIDDLEBROOKS, Warden, Louisiana Correctional and Industrial School, et al.
    No. 59384.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Harwood E. Lowe, applying for writs of habeas corpus, mandamus, certiora-ri, prohibition and/or remedial writs.

Application denied; this is a repetitive application. The same contentions have been previously made and rejected by the trial court (Nov. 16, 1973) and this court (1975, 320 So.2d 562).


text:
    STATE of Louisiana v. Robert B. THOMAS and Charles R. Upshaw.
    No. 59547.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Robert B. Thomas, Charles R. Up-shaw applying for writs of certiorari, prohibition, mandamus and stay order.

Writ refused, and stay order recalled. No merit in application.


text:
    A. J. PRINE v. Leonard KINCHEN.
    No. 59462.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Wildred James Whitehead and W. E. Wild, Jr.- applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston. 341 So.2d 1149.

Writ denied. The judgment is not final.


text:
    STATE of Louisiana v. Amy GASPARD.
    No. 59455.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Amy Gaspard applying for writs of certiorari, prohibition, mandamus and stay order.

Application premature for review. Sentence has not yet been imposed. Therefore it is not considered. Applicant will have leave to renew application with attendant request for stay of execution of sentence pending consideration; incorporation by reference, in reviewed application, of this application and attachments, will be in order.


text:
    STATE of Louisiana v. Andrew Dale ARMAND.
    No. 59449.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Andrew Dale Armand applying for writs of certiorari, prohibition, mandamus and a stay order.

Writ denied: Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. David S. BOUILLION.
    No. 59436.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: David S. Bouillion applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. There was no error in the ruling below.


text:
    A. J. PRINE v. Leonard KINCHEN.
    No. 59430.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: First National Bank of Denham Springs applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston. 341 So.2d 1149.

Writ denied. The judgment is not final.


text:
    Anthony G. ALATERAS v. Floyd J. HEPTING and American Radio Association AFL-CIO.
    No. 59429.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Anthony G. Alateras applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 342 So.2d 247.

Writ refused. There is no error of law in the judgment of the court of appeal.


text:
    Succession of George H. SPINKS v. Tommie SMOTHERS.
    No. 59424.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Tommie Smothers applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Iberville. 341 So.2d 1201.

Writ denied: Judgment not final.


text:
    GENERAL CREDIT PLAN, INC. v. Thomas E. PEARSON et al.
    No. 59419.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: General Credit Plan applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1238.

Writ denied. The result is correct.


text:
    STATE of Louisiana ex rel. Robert HOWARD v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 59416.
    Supreme Court of Louisiana.
    March 25, 1977.

   In re: Robert Howard applying for writ of habeas corpus and certiorari.

Application denied; the record on appeal (# 56,861) shows defendant is not entitled to relief sought.


text:
    Succession of Dock Albert CUTRER and Otto P. Cutrer v. John T. CURTIS, Sr.
    No. 59409.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: John T. Curtis, Sr. and Homer Curtis applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 341 So.2d 1209.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. Willie FRANKLIN.
    No. 59405.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: State of Louisiana, applying for supervisory writs.

Writ denied. On the showing made, the result is correct.


text:
    Lillie JACKSON v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 59397.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: New Orleans Public Service, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 342 So.2d 258.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. Robert Lee RICE, Jr.
    No. 59387.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: State of Louisiana applying for writs of review and certiorari.

Writ denied. The ruling of the trial judge is correct.


text:
    STATE of Louisiana ex rel. Oliver WASHINGTON v. Ross MAGGIO, Jr., 12013 Criminal Docket.
    No. 59385.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Oliver Washington, applying for writ of habeas corpus.

Writ denied. On the showing made relief is not warranted.


text:
    Percy J. FONTENOT v. Roger Lee LAFLEUR.
    No. 59377.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Percy J. Fontenot applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 341 So.2d 62.

Writ denied. On the facts found, the result is correct.


text:
    Joseph Glenn VIDRINE v. SENTRY INDEMNITY CO. et al.
    No. 59376.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Joseph Glenn Vidrine, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Evangeline. 341 So.2d 558.

Application denied; the result is correct.


text:
    John L. VAN NORMAN v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    No. 59372.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: John L. Van Norman, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu.

Denied. There is no error of law in the judgment complained of.


text:
    Nelse B. ALLEN v. LaSALLE PARISH SCHOOL BOARD et al.
    No. 59371.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Nelse B. Allen applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of LaSalle. 341 So.2d 73.

Writ refused. No error of law.


text:
    STATE of Louisiana v. Ray S. HARRIS.
    No. 59368.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Ray S. Harris applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ denied. The ruling of the trial judge is correct.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Ray JOHNSON.
    No. 59367.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: State of Louisiana, through the department of highways applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 341 So.2d 12.

Writ denied. No error of law.


text:
    STATE of Louisiana v. Vernado MIXON.
    No. 59454.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Vernado Mixon, applying for writ of review.

Treating the application as one for mandamus, it is granted and the respondent is ordered to file relator’s appeal without further delay. The trial judge’s per curiam may be filed after the appeal is lodged in this court.


text:
    STATE of Louisiana v. Warren WALKER.
    No. 59448.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Warren Walker, applying for writs of review, mandamus and certiorari.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Frank Foil, Judge of the 19th Judicial "District, Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 8th day of April, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 24th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Hazel Carr HARTLEY v. John A. HARTLEY.
    No. 59428.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Hazel Carr Hartley, applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany. 336 So.2d 291; 341 So.2d 1257.

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


text:
    STATE of Louisiana v. Terrance L. BOYD.
    No. 59390.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable William J. Fleniken, Judge of the First Judicial District, Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 8th day of April, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 24th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Donald Daniel ARNOLD v. Hon. Charles R. WARD, Judge.
    No. 59213.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Donald Daniel Arnold applying for writ of mandamus.

Writ granted. It is ordered that relator be returned to the Orleans Parish Prison for incarceration until such time as his conviction becomes final or it is established that he is a security risk in an evidentiary hearing.


author: BEER, Judge.

text:
    Frances Armstrong WILLIAMS v. Carl John WILLIAMS.
    No. 7524.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for plaintiff-appellant.
    Carl John Williams, in pro per.
    Before STOULIG, SCHOTT and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Frances Williams, appeals, seeking an increase in the trial court’s award of $300 for alimony and $275 for child support.

She is not employed. The only funds available for her support and that of the three minor children of the marriage, Laurie (17), Michael (11) and Keith (8), are those noted above. Laurie attends Mt. Carmel High School, and the two boys are students at St. James Major Elementary School. Mrs. Williams itemizes the cost of her monthly requirements at approximately $1,400, although her present monthly expenses are -less than this amount. The $1,400 amount is based on the attainment of a life style which she feels is adequate and proper under the circumstances. She acknowledges that she has, since the separation, done without some of the particular items that make up the total amount of her estimated monthly requirements.

Mrs. Williams’ father pays for Laurie’s schooling at Mt. Carmel High School. Mrs. Williams does not pay rent to her father for the living space he provides for her family. Nevertheless, she feels that these payments and favors are, in fact, debts which should be repaid and not counted upon indefinitely.

She suffers from endometriosis which produces low back pain but contends that she is unable to afford the operation needed to remedy her condition. The condition makes it necessary that she employ a part-time maid to do heavy work.

Defendant-appellee, Carl Williams, has two sources of income: Spremich Enterprises and the United States Air Force Reserve. His 1974 gross income from Spremich was $8,400 and his USAFR pay (as a Captain) was $7,710. Since January 1, 1975, he has received a $100 per month raise in pay from Spremich and been promoted to Major in the Air Force Reserve.

We believe that the record supports a conclusion that Carl Williams’ gross income at the time of the hearing of this matter in May of 1975 was in the range between $17,000 and $18,000 per annum.

Taking this into account and giving considerations to Williams’ own requirements, we are inclined to the, view that a somewhat higher figure is called for insofar as the child support award is concerned.

Although we realize that the setting of alimony at $300 and child support at $275 was, to some extent, motivated by federal income tax considerations, we are, nevertheless, of the view that the total of $575 per month is still quite low. The three children of this marriage are at ages when their minimum requirements are going to be exceedingly difficult to meet on the basis of a monthly payment (for all three) of $275 per month. In the circumstances of this case, this conclusion would be Just as compelling if alimony had been set at $200 per month and child support at $375 per month.

All circumstances considered, we have concluded that the fair and reasonable overall total figure should be $700 per month. For a number of reasons, we are disinclined to disturb the amount of the alimony award. We deem it appropriate to increase the trial court’s award for child support of all three children from a total of $275 per month for all three to $400 per month for all three, effective July 1, 1976.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is amended to read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant be and he is hereby condemned to pay alimony and child support in the sum of $700 per month, commencing July 1, 1976, said award to be apportioned on the following basis: $300 per month as alimony to Frances Armstrong Williams and $400 per month as the total child support for the three children, Laurie, Michael and Keith. The combined award of a total of $700 shall be payable on the basis of $350 on the first of each month and $350 on the fifteenth of each month, commencing July 1, 1976.

As amended in the manner stated above, the judgment is affirmed, at appellee’s cost.

AMENDED AND AFFIRMED.