text:
    STATE of Louisiana v. Henry WRIGHT.
    No. 57301.
    Supreme Court of Louisiana.
    May 17, 1976.

      Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Henry Wright was indicted by the grand jury for the Parish of Orleans for second degree murder of Betty Butler, in violation of La.R.S. 14:30.1. After trial by jury, he was found guilty as charged and was thereafter sentenced to life imprisonment at hard labor. On appeal, he relies upon seven assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 3 AND 7

Defendant contends that the trial judge erred in sustaining the state’s objection to defendant’s attempt to show a state witness, Isiah Hill, a clipping of a newspaper account of the homicide (Assignment of Error No. 3). He further asserts as error the sustaining by the trial judge of the state’s objection to the introduction of this newspaper article into evidence (Assignment of Error No. 7).

Isiah Hill was an eyewitness to the shooting which occurred at about 6:25 p. m. on March 15, 1974. The victim was his sister-in-law and was in the company of his daughter at the time. They were in the 500 block of Josephine Street and were headed toward Rousseau Street in the City of New Orleans. They were on their way to a sweet shop. Hill heard two shots and observed the victim fall to the ground. He testified that he saw defendant, whom he knew, shoot the victim with a small caliber gun which he had in his hand. Hill denied hearing any gun battle. On cross-examination, defense counsel attempted to exhibit a clipping of a newspaper account of the homicide to this witness and later to introduce it in evidence. The state’s objections in both instances were sustained by the trial judge.

Defendant contends that the newspaper narrative of the killing gives rise to an inference that the victim’s shooting was accidental and therefore of an exculpatory nature. He asserts that the refusal to admit the article constitutes a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

There is no merit to this contention. In Brady, the United States Supreme Court held that the suppression by the prosecutor of evidence, in the face of a defense production request, that is favorable to the accused and is material to the issue of either guilt or punishment, constitutes a denial of due process. Defendant makes no showing that the state suppressed evidence of this newspaper article. Further, defendant made no attempt to lay a foundation for introduction of the article in evidence by calling the writer to testify at trial. Hence, the newspaper narrative of the shooting was clearly hearsay and was inadmissible under La.R.S. 15:434. The rulings of the trial judge were correct. Assignments of Error Nos. 3 and 7 lack merit.

ASSIGNMENTS OF ERROR NOS. 8 AND 9

In these assignments of error, defendant alleges that the trial judge erred in refusing to give two requested special charges to the jury.

The first special charge directed the jury that a verdict of second degree murder requires the concurrence of all twelve members of the jury; The requested special charge was incorrect. The crime of second degree murder with which defendant was charged is punishable by life imprisonment at hard labor. La.R.S. 14:30.1. Only cases in which the punishment may be capital require the unanimous verdict of all twelve jurors. La.Code Crim.P. art. 782. The trial judge therefore properly refused to give this special charge. La.Code Crim.P. art. 807 (1966).

The second special charge would have instructed the jury as follows:

Defendant’s defense is that the deceased met her death accidentally, and that the defendant did not intend injury or death to her. This defense necessarily denies that the killing was intentional. But this defense does not shift to a defendant the burden of proving that the homicide was caused by an accident. On the contrary, where the defense of accidental killing is set up, according to the general rule, the burden rests upon the State to show that the killing was wilful and intentional.

The trial judge also did not err in refusing to give this requested special charge. The general charge contained an extensive instruction to the jury concerning the state’s burden of proving every element of the crime of second degree murder beyond a reasonable doubt. The trial judge further instructed the jury that the specific intent to kill or inflict great bodily harm is an essential element of the crime of second degree murder, and that the state had the burden of proving that the accused had such specific intent beyond a reasonable doubt. In our view, the jury was well apprised of the fact that despite the defense of accidental killing the burden of proving that the homicide was intentional remained with the state. The special charge was therefore included within the general charge, and need not have been given. La.Code Crim.P. art. 807 (1966); State v. Blanton, 325 So.2d 586 (La.1976). These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 10 AND 11

Defendant alleges that the trial judge erred in overruling his motion to quash the indictment on the ground that La.R.S. 14:30.1, the statute defining the crime of second degree murder, is invalid. He also alleges error in the trial judge’s denial of his motion in arrest of judgment based on the same ground.

Relying on Sullins v. City of Shreveport, 252 La. 423, 211 So.2d 314 (1968), defendant contends that the enactment of Act III (codified as La.R.S. 14:30.1) of the 1973 regular session contravenes article 3, section 8 of the Louisiana Constitution of 1921, in effect at the time the act was passed. In Sullins, it was stated that article 3, section 8 requires the legislature to enact non-fiscal bills introduced at a fiscal session by a three-fourths vote of each house. Since the 1973 regular session was a fiscal session and Act III was passed by a vote of less than three-fourths of the House of Representatives, defendant contends that Act III was not properly enacted into law.

Defendant’s reliance upon Sullins is misplaced. In State v. Reado, 295 So.2d 440 (La.1974), we held that La.R.S. 14:30.1 was properly enacted into law in accordance with article 3, sections 8 and 24 of the 1921 Constitution. We stated in Reado that the 1921 Constitution, while it required a three-fourths vote of each house to extend a fiscal session to the consideration of non-fiscal matters, required only a majority vote for final passage of legislation. The 1973 legislative session extended the fiscal session to the consideration of non-fiscal matters by a three-fourths vote, and Act III received a majority vote in both houses. We therefore held in Reado that La.R.S. 14:30.1 was free of any constitutional infirmity. We also specifically overruled Sullins insofar as it was in conflict with our decision. These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 12

Defendant complains of the trial judge’s denial of his motion for a new trial. The motion for a new trial alleged merely that the verdict was contrary to the law and evidence and that the bills of exceptions reserved at trial show prejudicial error.

We have uniformly held that error 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 (article 851(1) of the Code of Criminal Procedure) presents nothing for our review. State v. Gilbert, 286 So.2d 345 (La.1973). Further, none of the assignments of error perfected in the trial court and briefed on appeal present reversible error. This assignment of error is without merit.

DECREE

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

      . Defendant perfected five other assignments of error (Nos. 1, 2, 4, 5 and 6) in the trial court. However, they were neither briefed nor argued on appeal and are therefore considered abandoned. State v. Carlisle, 315 So.2d 675 (La.1975).

      . The special charge is an almost verbatim excerpt from State v. Graffam, 202 La. 869, 13 So.2d 249 (1943).


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Philip SHEZBIE.
    No. 57313.
    Supreme Court of Louisiana.
    May 17, 1976.

      Ross T. Scaccia, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant prosecutes this appeal from his conviction of armed robbery, a violation of La.R.S. 14:64. He urges reversal of his conviction and sentence of eighteen years at hard labor on the basis of four assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant first assigns as error the refusal of the trial court to grant his motion to quash the indictment on the basis that the jury venire did not contain an adequate representation of women. We do not reach the merits of defendant’s argument because the trial court properly refused the motion on the ground that it was neither timely filed nor in the proper form. La.Code of Criminal Procedure article 535 provides in pertinent part:

(t * ‡ *
“A motion to quash shall be filed at least three judicial days before commencement of trial, and may be filed with permission of the court at any time before commencement of trial, when based on any of the following grounds:
(( * * *
“The general venire or the petit jury venire was improperly drawn, selected, or constituted;
" * * * D

La.Code of Criminal Procedure article 536 provides:

“A motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court. It shall specify distinctly the grounds on which it is based. The court shall hear no objection based on grounds not stated in the motion.”

In his per curiam to this assignment, the trial judge stated that the motion to quash was not filed three judicial days before trial, but after the selection of jurors and immediately before evidence was taken. Moreover, the motion was made orally and was not filed in written form until eleven days after the trial.

We have previously held that the trial court does not abuse its discretion by refusing a motion to quash because it is not in writing or has not been timely filed. See, e. g., State v. Robinson, 261 La. 1029, 261 So.2d 654 (1972); State v. Lewis, 255 La. 623, 232 So.2d 294 (1970).

Assignment of Error No. 1 has no merit.

ASSIGNMENTS OF ERROR NOS. 2, 3 and 4

These assignments of error were submitted without written or oral argument. In his brief the appellant merely states that the trial court denied his motion to suppress after hearing testimony thereon. No discussion or reasons for complaining of the judge’s ruling were presented. Therefore, we consider these assignments to have been abandoned because of appellant’s failure to brief or argue them. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

•For the reasons assigned, defendant’s conviction and sentence are affirmed.


author: DIXON, Justice. MARCUS, Justice SUMMERS, Justice

text:
    STATE of Louisiana v. Mike DUHON.
    No. 57141.
    Supreme Court of Louisiana.
    March 29, 1976.
    Dissenting Opinion of Summers, J., May 14, 1976.
    Scotty G. Rozas, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Mike Duhon, was charged jointly with one Joseph Clark by bill of information with the crime of armed robbery in violation of R.S. 14:64. On the day of the trial, with the prospective jurors already in the courtroom, the State orally moved to sever the case and try only Duhon at that time. The defendant was then convicted and subsequently sentenced h> twenty years imprisonment. On appeal he relies on four assignments of error. We find merit in Assignments Two, Three and Four.

Assignment of Errors Nos. 2, 3 and 4

During the course of the trial, the prosecutor called Joseph Clark, the severed co-defendant, to the stand. The defendant objected, primarily on the ground that Clark’s production was not fairly within the scope of the opening statement of the prosecutor, as required by C.Cr.P. 769. The trial judge overruled the objection.

When Joseph Clark took the stand, the following exchange took place:

“ Q Where are you presently residing or staying, Mr. Clark ?
A Route 2, Box 753, Westlake, Louisiana.
Q That is your home address ?
A Yes.
Q But, are you living there right now?
A No.
Q Have you ever been convicted of a crime?
A Yes.
Q What was that, sir ?
MR. ROZAS: We’re going to object, Your Honor. I don’t know the relevance of this matter
THE COURT: The objection will be maintained at this time.
A Armed robbery.
THE COURT: Strike the answer. Ladies and gentlemen of the jury, you are to disregard completely the last answer given by the witness because the Court maintained the objection by the defense counsel to the question, and you are to completely ignore it as if it had never been answered.”

The defendant moved for a mistrial, which was denied, the judge being of the opinion that his admonition was sufficient to cure any prejudicial effect of the answer.

Thereupon, this exchange followed between the prosecutor and Joseph Clark:

“Q Mr. Clark, do you know the defendant here, Mike Duhon ?
A I plead the Fifth Amendment.
MR. RICHARD: I’m sorry . . .
THE COURT: He said he pleads the Fifth Amendment.
Q Did you see Mike Duhon on November 15,1974?
A I plead the Fifth Amendment.
Q Do you know where Junior’s Grocery Store is on the Old .
A I plead the Fifth Amendment.”

Following his conviction, the defendant moved for a new trial, assigning as grounds therefor not only those related above, but also the fact that the prosecutor called Joseph Clark to the stand, even though he knew that Clark would assert his Fifth Amendment privilege not to testify.

While the trial judge denied the motion for a new trial, he did so only because he knew of no authority which would have allowed him to prevent the prosecutor from calling Clark to the stand, even though the prosecutor knew that Clark would plead the Fifth Amendment. That the judge in fact felt a new trial was warranted is reflected in his per curiam to his denial of the motion for a new trial:

“The major problem I had with the case was the fact that the State called co-defendant Clark as a witness and made him take the Fifth Amendment before the jury, in spite of the fact that the State knew he would refuse to testify.
The District Attorney stated that he wanted the jury to see the co-defendant to verify the testimony of the witnesses concerning his appearance. This, in my opinion, was not necessary or relevant to the case.
I did not know of any law which would have permitted me to maintain defense counsel’s objection to the State calling the co-defendant Clark as a witness. I felt that the action by the State in making co-defendant Clark take the Fifth Amendment in the presence of the jury, when the State knew in advance of calling him that he would, was highly prejudicial to the defendant. I further felt that the questions propounded to co-defendant Clark about committing crimes added to the prejudice of the rights of the defendant.
Since I did not know of any law which gave me the authority to tell any party in a criminal proceeding whom they may or may not call, I felt compelled to overrule the motion for a mistrial. However, I do feel that the actions of the State, as outlined above, was highly prejudicial to the rights of the defendant.
I am aware of • the case of State v. Haynes, 291 So.2d 771, with Justice Tate as the organ of the Court. The footnote indicates this type of action by the prosecutor can constitute unprofessional conduct.
In reflecting on this case, I now feel that I should have declared a mistrial.”

The State, in its brief, asserts that there is no evidence that the prosecutor knew Clark would refuse to testify. We believe that a fair reading of the record compels a contrary conclusion. It is apparent, as it was apparent to the trial judge, that the prosecutor either knew or had strong reasons to suspect that Clark would refuse to testify. Additionally, before Clark was questioned by the prosecutor, the judge advised him of his Fifth Amendment rights, and Clark responded that he was unwilling to answer any questions about the armed robbery. Nonetheless, the prosecutor forced him to assert his Fifth Amendment privilege before the jury. This constitutes reversible error.

In State v. Berry, 324 So.2d 822 (La.1975), the defendant wanted to call a witness to the stand in order to force that witness to assert his Fifth Amendment privilege in front of the jury. The trial judge refused to allow the defendant to call the witness to the stand because it was clear, after a hearing outside the jury’s presence, that the witness would in fact assert a valid Fifth Amendment privilege. This court affirmed, stating, at 324 So.2d 830:

“It is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege. American Bar Association Standards of Criminal Justice, Relating to the Prosecution Function, Standard 5.7(c), and Relating to the Defense Function, Standard 7.6(c) (1971).
As the commentaries to these standards indicate, claims of privilege are preferably determined outside the presence of the jury, since undue weight may be given by a jury to the claim of privilege and due to the impossibility of cross-examination as to its assertion. (The commentaries also note the impropriety of either counsel arguing any inference from the failure of another to call a witness, if the failure to do so is known to be based on the witness’s claim of privilege.) For similar reasons, the courts have uniformly rejected a defendant’s claim of error based upon the denial of his request that a witness assert his claim of privilege before the jury. See United States v. Lacouture, 495 F.2d 1237 CA 5, 1974), and decisions therein cited. See also Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963).”

Similarly, in State v. Haynes, 291 So.2d 771 (La.1974), this court indicated that it is improper for the prosecutor to call the defendant’s wife to the stand in order to force her to claim her spousal privilege before the jury. See American Bar Association Standards For Criminal Justice, Relating to the Prosecution Function, Standard 5.7(c):

“A prosecutor should not call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege. In some instances, as defined in the Code of Professional Responsibility, doing so will constitute unprofessional conduct.”

It was therefore an error of law, as the trial judge in fact recognized, to deny the defendant’s motion for a new trial. The action of the prosecutor in calling a co-defendant to the stand who he knew would assert a Fifth Amendment privilege substantially prejudiced the defendant. C.Cr. P. 851(5).

Accordingly, the conviction and sentence are reversed and set aside, and the case is remanded for a new trial.

MARCUS, J., dissents and assigns reasons.

SUMMERS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

The prosecutor’s action in calling the severed co-defendant to testify violated none of the accused’s constitutional or statutory rights.

Assuming that error was committed, defendant waived such error. When the prosecutor called the severed co-defendant as a witness, defendant objected that his production was not fairly within the scope of the prosecutor’s opening statement. The trial judge properly overruled the objection based on that ground. The prosecutor’s subsequent questioning of the witness, to which the witness invoked his privilege against self-incrimination, met with no objection from defendant.

Again assuming that the prosecutor erred in calling the severed co-defendant to the stand, his action did not constitute an error of law at the time defendant filed his motion for a new trial, since the error had been waived. Although the trial judge had the authority to grant a new trial to serve the ends of justice under article 851(5) of the Code of Criminal Procedure even where an error had been waived, his refusal to grant a new trial under these circumstances is not an error of law that would be subject to appellate review. La.Code Crim.P. art. 858 (1966).

I therefore respectfully dissent from the reversal of this conviction and sentence.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by Mr. Justice Marcus.


author: TATE, Justice. CALOGERO, Justice

text:
    STATE of Louisiana, Appellee, v. Gerald MONTANA and Feltus Anderson, Appellants.
    No. 57325.
    Supreme Court of Louisiana.
    May 17, 1976.

      J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendants were convicted of simple burglary. La.R.S. 14:62. Both defendants received enhanced sentences as multiple offenders, La.R.S. 15:529.1; Anderson to twenty-five years at hard labor, Montana to nine years at hard labor.

Upon appeal, the defendants contest their receiving enhanced sentences as multiple offenders. (They also complain of the trial court’s refusal to allow them pre-trial discovery of the details of the state’s case; to which under our state jurisprudence they are not entitled. State v. Ball, 328 So.2d 81 (La.1976); State v. Major, 318 So.2d 19 (La.1975); State v. Lewis, 315 So.2d 626 (La.1975); State v. Thomas, 290 So.2d 317 (La.1974).)

As to the defendant Anderson:

His contention that his sentencing as a multiple offender, and that he was entitled to a jury trial on the multiple-offender charges, are without merit. By our well-settled jurisprudence rejecting similar contentions, upon conviction of a crime, the subsequent multiple-offender proceedings do not charge a crime; they are merely part of the sentencing function of the trial judge, whereby an increased statutory penalty may be assessed against offenders who repeatedly commit felonies. State v. Alexander, 325 So.2d 777 (La.1976); State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974). See also State v. Maduell, 326 So.2d 820 (La.1976).

As to the defendant Montana:

In securing enhanced punishment, the state proved two prior burglary convictions (one in 1967 and one in 1970), in addition to the present 1974 conviction. The defendant Montana contends that the state did not adequately prove the first two convictions.

The state proved two prior felony convictions of a Gerald Montana. It then proved that the Montana convicted of the present offense had fingerprints identical to those of the Montana charged in each of the prior offenses. It is undisputed that no two individuals have the same fingerprints. The offerings show that a three-year sentence was assessed for the 1967 conviction, and a two-year sentence for the 1970 conviction.

This uncontradicted evidence adequately proves that the present defendant was the same person who had committed the two prior felonies and that he was convicted of them. The evidence further proves that the present offense had been committed in early 1974, and that the maximum sentence for neither of .the prior convictions had elapsed more than five years prior thereto. (A prerequisite for use of prior felony convictions to enhance punishment is that not more than five years shall elapse between (a) the expiration of the maximum sentence on the prior conviction and (b) the commission of the present offense, La.R.S. 15:529.1 C.)

The defendant complains that these facts were not proved by the certificate of the warden, as permitted by La.R.S. 15:529 F. However, this statute merely permits proof by this method; but the necessary facts which permit enhanced punishment may also or instead be proved by other competent evidence. State v. Maduell, 326 So.2d 820 (La.1976).

Decree

Finding no error, we affirm the convictions and sentences.

AFFIRMED.

CALOGERO, J., concurs in part, dissents in part and assigns reasons.

DENNIS, J., concurs and dissents for the reasons assigned by CALOGERO, J.

CALOGERO, Justice

(concurring and dissenting).

With respect to defendant Anderson, I concur in the majority opinion finding the assignments of error non-meritorious.

With respect to defendant Montana, I concur in affirming his conviction, but dissent from that portion of the majority opinion which affirms his multiple offender sentence.

The majority holds that the state offered sufficient proof that defendant Montana had been convicted of two prior felony convictions because they were able to show that defendant had fingerprints identical to a Gerald Montana who was charged in connection with those prior offenses.

If indeed there was proof in the instant case that the Gerald Montana convicted in the prior cases was the same Gerald Montana before the court at the multiple offender proceeding i. e., that the fingerprints of the Gerald Montana convicted of the two earlier felonies were identical to those of defendant Gerald Montana, I would concur in the multiple offender sentence imposed. But as I view the evidence before this Court there was no such proof in the instant case.

Looking at the evidence contained in this record all we know is that in case number 187-647 on the docket of the Criminal District Court for the Parish of Orleans one Gerald Montana pled guilty to simple burglary and on July 6, 1967 was sentenced to serve three years at hard labor. There is no indication of the date of the commission of the offense, or the actual booking incident to this specific charge. We do know that, perhaps coincidentally, one Gerald Montana was booked on January 27, 1967 and fingerprinted at that time. There is nothing in the record, however, to establish that the guilty plea and sentence are connected with this particular booking and set of fingerprints.

A similar analysis is appropriate in connection with the second prior felony conviction alleged by the state. It was established that in case number 212-888 on the docket of the Criminal District Court for the Parish of Orleans, one Gerald Montana was convicted of simple burglary and on March 12, 1970 was sentenced to serve two years at hard labor. Again, there was no indication of the date of the commission of the crime or the actual booking incident thereto. The state did offer evidence that one Gerald Montana was booked on January 25, 1970 and fingerprinted at that time. There is nothing in the record, however, to show that the conviction and sentence in case number 212-888 was connected with that booking and set of fingerprints.

While the foregoing analysis might at first reading appear to be overly technical, there is nothing overly technical about the requirement that the state carry its burden of proof with appropriate and credible evidence. If defendant was the Gerald Montana involved in these prior felony convictions in Orleans Parish it is certainly within the power of the state to prove that fact with adequate evidence.

It should be noted that the exhibits relied on by the state at the multiple offender hearing are not a part of the record before this Court. If I were able to view these exhibits, I might reach a different conclusion. However, on the basis of the record in its present posture, I feel compelled to dissent.


author: SUMMERS, Justice. TATE, Justice

text:
    STATE of Louisiana v. Richard JOHNSON.
    No. 57304.
    Supreme Court of Louisiana.
    May 17, 1976.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

This case presents two issues arising out of appellant Richard Johnson’s trial and conviction for the armed robbery of a Time Saver Food Store in the City of New Orleans.

According to the evidence at the trial, between 7:30 and 8:00 o’clock on the evening of February 11, 1974 three men entered the Time Saver Food Store at 4827 Downman Road in the City of New Orleans. One of the men was armed with a gun. After a brief verbal exchange, the employees of the store, Gloria Sanders and Barbara Davis, were robbed of some of the contents of their purses and money was taken from the cash register.

Police were called and they ascertained from Gloria Sanders that she knew one of the robbers, who she thought was named Richard Lift, a person with whom she attended elementary school when she was younger. That same night Gloria Sanders went to the police station where she was shown “a lot of pictures.” From these she picked the picture of appellant Richard Johnson, whom she declared to be one of the robbers. A “wanted” bulletin went out for him and the police apprehended him on February 19, after a struggle when he sought to flee from the police.

Thereafter Gloria Sanders attended a physical lineup and again positively identified Richard Johnson as one of the three robbers. She explained why she had been confused in thinking Richard Johnson was Richard Lift, by pointing out that they had both attended school with her at the same time. However, she stated her identification of Johnson was made from her recollection of his facial features, which were plainly visible at the time of the robbery.

Assignment 1

In support of his motion to suppress, appellant relies principally upon Glorida Sanders’ testimony that, soon after the robbery, she told police that she knew one of the robbers, who she thought was Richard Lift. It is the defense contention that when she later identified Richard Johnson as the robber, the identification was the result of undue influence on the part of the police. This defense theory, however, is based upon speculation and conjecture and is not supported by the record in any particular. To the contrary, by stipulation it was agreed that a police officer would testify that the lineup was conducted in a regular, orderly manner with no unusual occurrences in any way. There is no evidence to the contrary.

In addition, the record convinces the Court that the victim Gloria Sanders satisfactorily explained the confusion she first experienced about the robber’s name. She had attended elementary school with both Richard Lift and Richard Johnson many years before and she was uncertain whether the robber was named Lift or Johnson. However, her ready identification of Johnson from numerous photographs and at the physical lineup without any indication of suggestive procedure supports the trial judge’s denial of the motion to suppress identification.

“[Ejach case must be considered on its own facts, and . . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

Assignment 2

At the trial patrolman Marcel David testified that he assisted at the arrest of Johnson on February 19. He described the circumstances of that happening, testifying that Johnson sought to flee from the police officers. When they ran after and overtook him, Johnson struggled, fought and tried to get away. He was subdued and transported to central lockup where he was charged with armed robbery and resisting arrest. This testimony was elicited in response to the State Attorney’s question, “Officer, what action did you take? What did you do?” No objection was made by the defense at that time.

Thereafter, defense counsel questioned patrolman David, asking if he filled out a Field Arrest Report when Johnson was brought to central lock-up. David said he did and defense counsel questioned him concerning information contained on the report, particularly the reference to the entry, “Physical attack. Other physical attack,” and “Weapon Specified' — None.” In explanation of these entries patrolman David said, “In other words, when we arrested Mr. Johnson, he was booked with armed robbery.” At this time defense counsel objected, “That is what he is on trial for.” When the objection was overruled, patrolman David continued in explanation :

“He was booked with armed robbery. He was booked with resisting arrest, and he was booked with simple battery on police officers. Now, when we fill out ‘Weapon Used’, it’s the weapon used in the actual arrest; and the weapon in this case was a physical attack on us when he resisted arrest. And that’s what ‘Physical Attack’ means. In our booking form, in other words, when we charge him with simple battery, the weapon was a physical attack on us while we were trying to arrest him.”

Subsequently, on cross-examination, defense counsel asked, “Now, Officer, the other two charges that you now have mentioned, resisting arrest and simple battery, those charges were in connection with the apprehension of Richard Johnson, were they not?” Patrolman David answered, “That’s correct.” Thereafter, the State offered the Field Arrest Report into evidence over defense objection.

Aside from the fact that no reason for the objection was given at the time, La.Code Crim.Pro. art. 841 and State v. McCray, 327 So.2d 408 (La.1976), there is no merit to the defense contention that the Field Arrest Report was irrelevant and improperly permitted evidence of arrest of other crimes into the record contrary to Section 495 of Title 15 of the Revised Statutes. As the quotations from the testimony demonstrate, the fact that defendant resisted arrest and committed battery upon the arresting officers was brought out by defense counsel in explanation of entries on the Field Arrest Report. Under these circumstances it was proper for the State to introduce the Field Arrest Report.

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

TATE, J., concurs and assigns reasons.

TATE, Justice

(concurring).

As to assignment of error two, I concur that it presents no reversible error. However, the field arrest report is inadmissible hearsay; the grounds for objection were not, however, specified at the time; and, anyway, its admission was harmless, since the facts contained in the report were already in evidence.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Leon G. SOUBY.
    No. 57221.
    Supreme Court of Louisiana.
    May 17, 1976.

      Rykert O. Toledano, Jr., William V. Courtney, Law Firm of Anderson & Tole-dano, Covington, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Bár-bara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Robert L. Bailey, III, Asst. Dist. Atty., for plaintiff-respondent.
   SUMMERS, Justice.

By a bill of information dated July 29, 1975, Leon G. Souby was charged with operating a motor vehicle on a public highway while under the influence of alcoholic beverages in violation of Article 98 of the Criminal Code. He entered a plea of not guilty and was found guilty in a bench trial, sentence to pay a fine of $200 and costs, or, in default, to serve ninety days in the parish jail.

We granted certiorari on Souby’s application to review alleged errors in the conduct of the trial. The conviction is reversed, the sentence is set aside and the case is remanded for a new trial.

Prior to trial defendant filed a motion to suppress the photoelectric intoximeter test taken shortly after his arrest, alleging that the officials did not comply with the requirements for administration of the test or the standards for maintenance of the equipment used in administering the test. Evidence of the test is alleged to have been obtained in violation of defendant’s constitutional rights guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution, and Article I of the Louisiana Constitution of 1974. In its answer to the motion to suppress the State declared: “The State does not intend to use the Photo-Electric Intoximeter Test as evidence.”

Counsel for defendant also filed a motion for bills of particulars in which he requested that the District Attorney furnish, among other, the following:

“(13) When was the photo-electric in-toximeter last repaired, inspected, cleaned and certified as to accuracy? By whom? And please attach certified copy of such certification and/or maintenance date to your answer to this bill of particulars.
“(15) Give a full explanation of the actual application of this test by the operator who administered same to the accused. Was this test performed according to the methods approved by the State Department of Health? If so, please attach a copy of those rules and regulations from the Department of Health.
“(16) What was the result of the test? Please set forth specific alcohol content, if in fact there was any as determined by this test.”

In its answer to these requests for bills of particulars the State set forth:

“13. The answer to this question is unnecessary since the State does not intend to use the Photo-Electric Intoximeter Test as evidence.
“15. The answer to this question is unnecessary since the State does not intend to use the Photo-Electric Intoximeter test as evidence.
“16. .14%”

In assigning his reasons for judgment the trial judge noted that the State had not introduced the results of the photoelectric intoximeter test into evidence, but he would rely upon the questions in the motion for bill of particulars and the answers thereto as part of his finding of fact. On this basis he found defendant guilty of operating a motor vehicle while under the influence of alcoholic beverages.

After a study of the evidence introduced at the trial it is apparent that there was ground for reasonable doubt as to defendant’s guilt, and the trial judge relied upon the results of the intoximeter test to weigh the evidence against defendant. In doing so he committed reversible error.

A tribunal’s determination of guilt or innocence in a criminal prosecution must be based on legal evidence. In this sense, then, the fact submitted for judicial cognizance must be established or disproved in accordance with the law of evidence — that is, by witnesses produced or by documents or other physical evidence introduced. Cf. La.Code Crim.Proc. art. 442.

Although they operate to limit the scope of proof at the trial, answers to a motion for bills of particulars do not constitute proof of the facts set out in the answer. La.Code Crim.Proc. arts. 484-85; State v. Bessar, 213 La. 299, 34 So.2d 785 (1948); State v. Masino, 214 La. 744, 38 So.2d 622 (1949). Especially is this true when the answer to the request for particulars specifically states that the information furnished will not be used as evidence by the State.

Nor was it proper for the trial judge to take judicial cognizance of the result of the test. Section 422 of Title 15 of the Revised Statutes and related statutes limit the matters of which courts may take judicial cognizance. None of the permissible matters include the results of photoelectric intoximeter tests.

It is entirely improper and a violation of fundamental constitutional rights to consider as evidence of guilt physical facts or testimony unless the defendant is confronted with the evidence against him, given an opportunity to object to its introduction, and accorded an opportunity to produce other evidence in rebuttal, or to otherwise question its validity. La. Const, art. I, § 16 (1974); La.R.S. 15:273; State v. Senegal, 316 So.2d 124 (La.1975); State v. Keller, 255 La. 367, 231 So.2d 354 (1970).

In the instant case the trial judge disclosed for the first time in his pronouncement of judgment that he considered the evidence of the test. This was after the case was closed and defendant had no opportunity to contest that evidence in any manner. In addition, defendant had been led to believe by the State’s answers to the motion to suppress and to the motion for bills of particulars that this evidence would not be used by the State. In fact, at no time during the presentation of the State’s case at the trial was the result of the test introduced into evidence or otherwise referred to by anyone. Particularly, the test was not offered into evidence by the State whose burden it was to prove the result of the test beyond a reasonable doubt. La.R.S. 15:271.

To rely upon the results of the test under these circumstances was a breach of those principles of fair play which characterize the trial of criminal cases in the American justice system.

For the reasons assigned, the conviction is reversed and the sentence is set aside. The case is remanded for a new trial.


text:
    STATE of Louisiana v. Keith GILMORE.
    No. 57201.
    Supreme Court of Louisiana.
    May 17, 1976.

      Lyall G. Shiell, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, District Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Keith Gilmore was charged by bill of information with the armed robbery of Robin Dillon on October 6, 1972. He was tried, found guilty and sentenced on April 26, 1973 to serve eighteen years at hard labor. Seven bills of exceptions were reserved; five are relied upon for reversal of the conviction.

Bills 1 and 4

Defendant timely filed a motion to suppress a confession alleging that the police officers forced him into making the confession “by threats of bodily harm and actual duress.” Bill 1 was reserved to the denial of the motion, and Bill 4 was reserved to the introduction of the confession into evidence.

Officers Calaco and Weicks arrested Gilmore on October 11, 1972 about' two o’clock in the afternoon near a barroom at the corner of North Derbigny and Forstall Streets. They informed him of the charges against him and advised him of his rights from a printed form as soon as he entered the police vehicle. At that time both Gilmore and Officer Calaco signed the rights of arrestee form. The document is in the record and thoroughly explains the rights of the, person arrested. Gilmore was then interrogated by the officers for approximately ten or fifteen minutes, at which time Gilmore admitted the commission of the robbery, stating that he wanted to tell them why he did it.

The officers drove to central lockup where they resumed questioning Gilmore in the interrogation room. Gilmore then told them he wanted to make a statement. The statement, in question and answer form, is a two-page document. Gilmore acknowledges in the statement that he has been advised of his rights and that he signed the rights form. A narrative account of some length is then recited by Gilmore giving details of the armed robbery. He signed the statement on the second page and initialed the first page, as did the two officers interrogating him. The statement was completed at 3:10 that afternoon.

Gilmore’s testimony at the hearing was that he was struck by the officers while en route to central lockup. He said he was hit with a book in the interrogation room and after that the officers punched him in the side. While he acknowledged at the hearing that he signed the statement, he testified that he did so because he was struck four or five times by the interrogating officers. He also testified that he was not advised of his rights until he was being booked, after the statement was signed.

Officer Calaco categorically denied that Gilmore was mistreated in any way, stating that the confession was free and voluntary.

In his per curiam to Bill 1 the trial judge, reviewing what he considered to be the credible testimony, stated this opinion:

“From the entire evidence and testimony, I felt that the State had borne its burden of proof that the statement made by the defendant was made freely and voluntarily, and after he had been advised of all his constitutional rights both orally and by written form. And that this had been established to my satisfaction and beyond a reasonable doubt.”

Before a confession or inculpato-ry statement can be introduced into evidence in a criminal trial the State must affirmatively show that the confession or statement was voluntarily given and was not obtained through fear, duress, intimidation, menaces, threats, inducements or promises. La.Const. art. I, § 16 (1974); La.Rev.Stat. 15:451-52. In addition, since the decision in Miranda v, Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the State must establish that prior to being questioned the accused was told by the police officers that he had a right to remain silent, that anything he might say would be used against him in court, that he had a right to counsel and that if he could not afford an attorney one would be furnished free of charge.

Admissibility of a confession is to be determined by the trial judge, while the weight to be given to the confession is a question for the jury. The conclusions of the trial judge on the voluntariness of the confession to determine its admissibility, therefore, is a question of fact which this court will not overturn unless it is not supported by the evidence. State v. Sims, 310 So.2d 587 (La.1975); State v. Vessel, 260 La. 301, 256 So.2d 96 (1971); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971).

The testimony in support of the voluntariness of the confession, the confession itself and the signed waiver of rights form all support the conclusion of the trial judge. On these findings the objection to the admission of the confession is also without merit.

These bills are without merit.

Bill 2 (abandoned)

Bill 3

Officer Weicks testified that he assisted in the follow-up investigation of this armed robbery. He said he and Officer Cala-co proceeded to the site of the robbery and the surrounding neighborhood in an attempt to locate possible witnesses. In the course of this investigation, he talked to a reliable informer and after obtaining information at a location furnished by him they “proceeded to the record room in order to —"

Defense counsel objected and moved for a mistrial; his contention being that such a statement before a jury, coupled with testimony leading to the arrest of the defendant, suggested to the jury that the defendant had a past record of an arrest or conviction. And, since no reference to an arrest was permissible under any circumstance and, because the defendant had not taken the stand, reference to a conviction was also prohibited. La.Rev.Stat. 15:495. No further reference was made to the record room in Officer Weicks’ testimony.

The objection was overruled, the trial judge being of the opinion that

“the mere words alone about which he complains, ‘proceeded to the record room in order to — ’ of themselves, mean nothing. There are several things they could have done at the record room and counsel did not state what the jury was supposed to believe the reason for going to the record room was.
“I fail to see how this fragmented, unresponsive statement by the officer prejudiced the defendant or raised any legal basis for the mistrial . . . .”

Defendant’s objection is based upon Section 495 of the Revised Statutes:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

Reference to the record room in Officer Weicks’ testimony was not a reference to, or a remark or comment about another crime made within the hearing of the jury by the judge, district attorney, or a court official, during the trial, or in argument, which would authorize a mistrial under Article 770 of the Code of Criminal Procedure. The remark was by a witness, and not by any of the officials to which Article 770 applies. Nor is the defense contention for a new trial saved by relying upon Article 771 of the Code of Criminal Procedure. In order for the defense to insist upon an admonition to the jury to disregard the remark, it was necessary for the defendant to request that the court admonish the jury. This was not done.

Moreover, in truth, there was no reference to another crime. Only by speculation, conjecture or surmise could the testimony be considered a reference to another crime; nor does the evidence disclose what record room was referred to or what records were contained there. Thus, defense counsel’s argument that the jury necessarily concluded that the reference to the record room was a reference to the fact that officers would find evidence of defendant’s previous arrest or conviction there is not supported by the evidence. To the contrary, a plausible inference could just as well have been drawn that nothing against defendant would be, or was, found in the record room.

Bill 5

During the course of the trial the defense objected when the State offered to introduce and file into evidence a photograph of a pretrial lineup in which the defendant was required to participate. The basis of the defense objection was that he did not have the advice of counsel and was not represented by counsel at the lineup. October 6, 1972 was the date of the robbery, the lineup identification and photograph occurred on October 18, 1972 and Gilmore was accused by bill of information filed on October 26, 1972.

The rights of arrestee form makes clear that defendant was informed of his right to counsel. Notwithstanding this advice, he did not request counsel; and he does not point to anything in this record which would demonstrate that this lineup was not fairly conducted. State v. Bland, 310 So.2d 622 (La.1975); State v. Johnson, 306 So.2d 724 (La.1975); State v. Hatch, 305 So.2d 497 (La.1974); State v. Hall, 261 La. 777, 260 So.2d 913 (1972). Furthermore, the testimony describing how the lineup was conducted satisfied the trial judge, and this Court agrees, that it was fair and free of any undue suggestion.

On the afternoon of the lineup, defendant and five other inmates fitting his general description were placed on the lineup stage. All wore prison uniforms and each had a number around his neck. Gilmore was allowed to pick the number he wished to wear. He was positively identified by the victim and her mother, the other identification witness, both of whom witnessed the robbery. These witnesses were separated in the show-up room, were not permitted to talk until after the lineup was completed, and were separately interviewed by the officers conducting the lineup.

In the opinion of the trial judge the photograph gave the jury an opportunity to observe all those who were part of the lineup, decide upon the similarity of the participants and determine the weight to be given to the lineup identifications.

Although not expressed, defense counsel is undoubtedly basing this contention upon the right to have the assistance of counsel for his defense guaranteed by the Sixth Amendment to the United States Constitution and by Section 9 of Article I of the Louisiana Constitution of 1921, both of which form part of the Federal and State Bill of Rights.

The issue, therefore, is whether, under the Bill of Rights of the United States and the State of Louisiana, a person who has not been indicted may be compelled to appear in a lineup without the assistance of counsel, and whether a photograph of that lineup may be later admitted into evidence at the trial.

The Bill of Rights of both the Federal and State Constitutions, which guarantees that in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defense, has been understood to mean that a defendant is entitled to the assistance of counsel not only at the trial itself, but at all “critical stages” of his prosecution. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); State v. Kirkland, 260 La. 1011, 257 So.2d 693 (1972). The requirement that there be a “prosecution” means that the constitutional “right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against [an accused]. . . .” “It is this point . . . that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Governor, et al., 331 So.2d 443 (La.1976). Since the lineup identification in the present case occurred prior to the filing of the bill of information, before the adversary judicial proceedings had been initiated, that procedure was not such a “critical stage” at which either the Federal or State Constitutions require the presence of counsel.

Bill 6 (abandoned)

Bill 7

At the close of the State’s case the Assistant District Attorney offered to introduce the rights of arrestee form signed by defendant, which purports to be a waiver of his rights as required by the decision of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defense counsel objected that a sufficient showing was not made that defendant knowingly waived his rights. The objection was overruled and this bill was reserved.

This waiver of rights form was also sought to be suppressed by the motion considered in connection with Bill 1. As consideration of that bill demonstrates, the waiver was signed knowingly. There is no merit to this bill.

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


author: MARCUS, Justice.

text:
    STATE of Louisiana v. August GORDON et al.
    No. 57390.
    Supreme Court of Louisiana.
    May 17, 1976.

      George C. Ehmig, New Orleans, for Ronnie Nicholas.
    William H. Barth, III, New Orleans, for Edward Jones.
    Ronald J. Gillen, Jefferson, for August Gordon.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., for plaintiff-appellee.
   MARCUS, Justice.

August Gordon, Ronnie Nicholas and Edward Jones were charged in the same information with the armed robbery of Josephine Allison on January 3, 1974, in violation of La.R.S. 14:64. After trial by jury, they were found guilty as charged. Subsequently, August Gordon and Ronnie Nicholas were each sentenced to serve twenty-five years; Edward Jones was sentenced to serve fifteen years. All sentences were at hard labor and without benefit of parole, probation or suspension of sentence. On appeal, defendants rely on two assignments of error for reversal of their convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendants moved to suppress, for use as evidence at trial on the merits, certain tangible property on the ground that the objects were obtained as a result of unconstitutional searches and seizures of evidence from their persons and the vehicle in which they had been riding at the time of their arrest. Defendants also moved to suppress their pretrial identification. These motions were denied by the trial judge. Defendants claim that the trial judge erred in these rulings.

The context facts are as follows. At about 10:30 a. m. on January 3, 1974, Officer Dan Fortier was on a routine patrol on U. S. Hwy. 90 in Jefferson Parish. A pink Pontiac traveling in the same direction passed him. A similar vehicle had been reported stolen at roll call that morning. As the car passed, he was able to see that three numbers of the license plate matched those of the vehicle reported stolen. After catching up with this vehicle, he observed that all the license plate numbers matched those given at roll call. However, to be certain, he sought a stolen vehicle check over the police radio. In order to avoid suspicion, Fortier drove ahead of the Pontiac, keeping it within his view through his rear view mirror. Before receiving the confirmation call, he reached the intersection of U. S. 90 and a right turnoff to U. S. 90-B. Since the Pontiac was traveling in the right-hand lane of traffic, Fortier opted the right turnoff to U. S. 90-B; however, the Pontiac continued straight on U. S. 90, making it impossible for him to follow. Fortier immediately radioed ahead to officers at the Third District Station, a short distance away on U. S. 90, alerting them to the approach of the stolen vehicle with three black males as its occupants. He then proceeded to make a U-turn and, while doing so, received a radio communication that an armed robbery had just taken place at Allen’s Grocery Store in the 6600 block of River Road. He was ordered to proceed to that location, where he arrived about five minutes later. Another police unit was on the scene when he arrived.

Meanwhile, in response to Fortier’s call, Officers Samuel Capad and Roger Gorum-ba of the Third District set up a road block within seconds of the call. As they saw the approach of the pink Pontiac, they received another call that an armed robbery had just taken place at Allen’s Grocery Store on River Road with a description of the vehicle (pink Pontiac) and its occupants (three black males). The broadcast also indicated that one of the suspects was wearing an army fatigue jacket. The Pontiac was stopped and the three- black male occupants (defendants) were ordered out of the vehicle. They were made to lie face down on the ground, handcuffed and frisked for weapons. Money was observed on the back floor and stuffed in the torn lining of the seat of the car. Also observed was an army fatigue jacket on the rear seat. A sawed-off shotgun was on the front floorboard. The car was verified as being stolen. Defendants were placed under arrest for possession of a stolen vehicle and armed robbery, advised of their rights and searched. They were then removed to the Third District Station in a paddy wagon. Shortly thereafter, the vehicle was searched at the scene. Money seized from defendants and the money, army jacket (with a gun and bullets in the pocket), and a sawed-off shotgun seized from the Pontiac were the objects sought to be suppressed in the motion to suppress evidence.

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable under the fourth amendment — subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 71 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest. While a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that an offense has been committed. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). The limits of such a search are the arrestee’s person and the area within which he might gain possession of either a weapon or something that could be used as evidence against him. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Another exception to the warrant requirement of the fourth amendment is the so-called “automobile exception.” This exception is based upon the existence of probable cause to search the vehicle and exigent circumstances which render it impracticable to secure a warrant. Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Tant, 287 So. 458 (La.1974); State v. McQueen, 278 So.2d 114 (La.1973).

Clearly, the arrests herein were made with probable cause. The facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information were sufficient for them to believe that defendants had committed the offenses for which they were arrested (possession of a stolen vehicle and armed robbery). Hence, the arrests were lawful and support the warrant-less searches of defendants’ persons made incidental thereto and within the Chimel limits. Likewise, the officers had probable cause to believe that the car contained contraband or other articles which they were entitled to seize. Therefore, the officers had probable cause to perform a warrant-less search of the automobile while it was still located on the highway. The search was clearly reasonable under the fourth amendment.' The trial judge correctly denied the motion to suppress the evidence seized from defendants and the vehicle in which they had been riding at the time of their arrest.

We next consider defendants’ claim that the trial judge erred in denying their motion to suppress identification. The motion was predicated on an alleged “show-up” identification occurring at the scene of the arrest between the victim and defendants. No evidence was adduced at the hearing on the motion that such a confrontation occurred. Rather, the evidence was to the contrary. In denying the motion, the trial judge found as a fact that no such “showup” had taken place at the scene. Nevertheless, he reserved to defendants the right to pursue the matter further at trial. No evidence of a “showup” was produced at trial. The lonly evidence regarding a pretrial identification was that of a lineup held on January 8, 1974 (some five days after the robbery and arrest of defendants) at which the victim was able to identify only defendant Nicholas. She testified that she selected him from a group of nine men and that no photographs or descriptions of suspects were given to her pri- or thereto. She further stated that no suggestions were made to her at the time of the lineup. She was steadfast in her testimony that her in-court identification of defendant Nicholas was based solely on her recollection of him at the time of the robbery when he confronted her face-to-face at close range (two feet) and robbed her at gunpoint.

Since there was no evidence of a “showup” at the scene of the arrest or of any infirmity in the lineup procedure, defendants’ claim that the pretrial identification was impermissibly suggestive lacks merit. In any event, the victim’s in-court identification of defendant Nicholas was based on her independent recollection of him at the time of the robbery. Under these circumstances/ the trial judge correctly denied the motion to suppress identification.

In sum, Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendants contend that the trial judge erred in permitting the state to exhibit an army jacket, allegedly worn by one of the robbers, to the victim of the robbery. They claim that this was suggestive and would have constituted an insufficient predicate for its introduction into evidence.

There is no merit to this contention. The victim had described the gunman as wearing an army jacket. The state attempted to show the jacket to the witness for her visual identification. Defendants’ objection was overruled by the trial judge. First, the army jacket was never shown to the witness. However, even if it had, it would not have been error. Secondly, there was no objection when the jacket had been previously introduced in evidence after a proper predicate had been laid.

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1974), we stated:

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
■ The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient, [citations omitted]
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, con-nexity of physical evidence is a factual matter for determination by the jury, [citations omitted]

In the instant case, Officer William Vie-ira testified that he removed the army jacket from the seat of the Pontiac at the scene of the arrest, tagged it, placed his initials thereon, and turned it over to a technician at the crime lab (Mr. Wallace Friloux). Mr. Friloux testified that he placed it in the evidence vault until he delivered it to Mr. Arthur Fields, Jr. (evidence clerk) two hours later. Mr. Fields testified that, upon receiving the clothing items, he sealed them in a bag which was kept in the evidence room until delivered by him to court on the day of trial.

We find that the army jacket was properly admitted in evidence, without objection, after the state had established a sufficient chain of custody. Clearly, it was more probable than not that the object was related to the case. Additionally, it would have been proper for the state to have exhibited the army jacket to the victim for her visual identification. In such an event, any lack of positive identification by her would go to the weight of the evidence rather than to its admissibility. Under these circumstances, the ruling of the trial judge was correct. Assignment of Error No. 2 lacks substance.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Robert L. FRUCHTNICHT.
    No. 57317.
    Supreme Court of Louisiana.
    May 17, 1976.

      L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Robert L. Fruchtnicht, was charged by bill of information with the crime of simple burglary in violation of R.S. 14:62. After a jury trial, he was found guilty and sentenced to nine years imprisonment. Defendant has briefed three assignments of errors to this court.

In criminal matters appellate jurisdiction of this court extends only to questions of law. La.Const. art. V, § 5(C) (1974). C. Cr.P. 920 delineates the scope of our appellate review :

“The following matters and no others shall be considered on appeal :
“(1) An error designated in the assignment of errors; and
“(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

C.Cr.P. 844 describes the procedure for assigning errors:

“The party appealing shall designate, in writing, those errors which are to be urged on appeal.
“This assignment of errors shall be filed within the time specified by the trial judge.
“The trial judge may submit such per curiam comments as he desires.”

In the instant case trial counsel has failed to perfect any assignments of error as required by C.Cr.P. 844. We are therefore limited on this appeal to a review for errors that are discoverable by a mere inspection of the pleadings and proceedings. State v. Gerald, 325 So.2d 574 (La.1976). We find none.

Nevertheless, because appellate counsel (who did not represent the defendant at trial) has briefed assignments of error, we have reviewed them and find them to be without merit.

Accordingly, the conviction and sentence are affirmed.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee-Respondent, v. James C. JONES, Jr., Appellant-Relator,
    No. 57316.
    Supreme Court of Louisiana.
    May 17, 1976.

      Henry V. E. Mitchell, IV, New Orleans, for appellant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for appellee-respondent.
   TATE, Justice.

The defendant was convicted of unlawful distribution of heroin, La.R.S. 40:966 (B)(1) (1973), and sentenced to life imprisonment at hard labor. We find no reversible merit to any of the six assignments of error urged by his appeal:

Assignments of Error Nos. 1 and 2: The defendant complains that the trial court refused to order the state to furnish certain information requested by the defendant’s pre-trial motion for a bill of particulars. The requested information concerned the specific amount of heroin the accused was charged with distributing, and the names of the witnesses allegedly present at the time. No error is shown. The defendant cannot obtain by bill of particulars pre-trial discovery of the details of the state’s evidence. State v Ball, 328 So.2d 81 (La.1976); State v. Kado, 300 So.2d 461 (La.1974); State v. Thomas, 290 So.2d 317 (La.1974).

Assignment of Error No. 3: The defendant complains of the trial court’s refusal, on his motion for oyer, to order the state to furnish pre-trial inspection of any oral statement allegedly made by him. A conviction is not reversible for this reason, the trial court’s ruling being based upon prior jurisprudence that oral statements are not so discoverable. State v. Watson, 301 So.2d 653 (La.1974).

Assignment of Error No. 4: The defendant complains of the trial court’s failure to reduce his bond prior to the trial. On an appeal after conviction, the issue is moot. Timely invocation to this court’s supervisory jurisdiction at the time of denial of reduction is the appropriate avenue of review. La.C.Cr.P. art. 322; State v. Bradford, 298 So.2d 781 (La.1974); State v. Cosey, 261 La. 550, 260 So.2d 620 (1972).

Assignment of Error No. 5: The defendant complains of the trial court’s denial of his motion to quash the indictment. The motion is based solely upon a contention that the prosecution was in bad faith since no indictment had been filed at the time of the motion, some seven weeks after the accused’s arrest. However, an indictment was filed the day after the motion was filed; preliminary examination was afforded, at which time the state showed probable cause for the charge; and a trial date was assigned, which was within about two months of the motion. The present record contains no showing whatsoever to justify the relief sought.

Assignment of Error No. 6: The defendant complains of the trial court’s refusal, upon state objection, to require a state undercover officer to state the name of his confidential informant. (The latter had led the officer to the accused at the time arrangements were made for the accused’s sale of heroin to the officer.)

By stating to the court the action desired (requesting the witness to respond to the question), and the grounds for the request (that the witness was the only person besides the policeman to verify what actually took place, and was therefore necessary to the defense), the defendant adequately preserved this ground for review.

We reject the state’s contention that the defendant needed to make some further motion or objection. The 1974 amendment of La.C.Cr.P. art. 841 (quoted in footnote 1), which abolished the bill of exceptions, ended such additional requisite for preserving an issue for appellate review.

However, the subsequent cross-examination of the officer indicated that the defendant in fact knew the name of the confidential informant (Wilmer Dixon), the person who had brought the officer to the defendant. After the objection was overruled the accused’s counsel cross-examined the officer as to Wilmer Dixon’s presence at the scene, and as to Wilmer Dixon’s actions in acting as the go-between between the defendant and the officer.

The record does not reflect that any effort was made by the accused to obtain Wilmer Dixon’s presence at the trial. We are unable to ascribe prejudice to the ruling of the trial court in refusing to require the officer to reply to the question, under the circumstances shown.

Conclusion: The defendant finally contends that, by a combination of these denials, he was unable adequately to prepare his defense and to obtain a fair trial. On the basis of the record of this appeal, no such prejudice is shown.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

      . As amended in 1974 La.C.Cr.P. art. 841 provides:
      “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, mahes known to the court the action which he desires the court to take, or of bis objections to the action of the court and the grounds therefor.
      “The requirement of an objection shall not apply to the court’s ruling on any written motion.” (Italics ours.)


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. William Roy JOHANSON.
    No. 57389.
    Supreme Court of Louisiana.
    May 17, 1976.
    George C. Ehmig, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, & Richard J. Boutall, Research Atty., Research and Appeals Division, Me-tairie, for plaintiff-appellee.
   CALOGERO, Justice.

On May 18, 1973, while on her way to school, a ten year old Philippine girl, who_ at that time had been in this country for only two years, was pulled into a wooded area and raped. Subsequently defendant, William Roy Johanson, an eighteen year old deaf mute, was identified by the victim as the perpetrator of the crime from a photograph display and again from a corporeal lineup. Defendant was charged with aggravated rape in violation of La.R. S. 14:42, to which he pleaded not guilty and not guilty by reason of insanity. On March 28, 1974, defendant was found guilty as charged. From this conviction and his sentence to life imprisonment defendant appeals, relying upon three assignments of error.

ASSIGNMENT OF ERROR NO. 1.

During the course of trial, the state called the ten year old victim of the crime to testify as a witness. Out of the presence of the jury the trial judge questioned the child about her family, her home, her schooling and the like. Following this examination he ruled that she had sufficient understanding to be a witness and was, therefore, competent to testify. Defense counsel objected to the trial judge’s ruling and this objection is the basis of assignment of error number one.

La.R.S. 15:469 provides as follows:

“Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.”

Defense counsel contends that throughout the interrogation by the trial judge and the assistant district attorney the child cried, and that, because of her age, her immaturity, and her relative lack of understanding of the English language, her responses to questions had to be prompted by the interrogator. The record contains no indication that the child ^.ould not understand the English language and, indeed, the transcript reflects that she understood and answered the questions appropriately without resort to any other language. It is true that the witness cried while on the stand and that the judge had the spectators removed from the courtroom during her testimony in an effort to make her feel more comfortable. This emotional response by a ten year old rape victim, however, was natural and does not demonstrate a lack of understanding of truth or falsehood, or of the facts of the case. Additionally, the unfamiliarity of a young rape victim with anatomical terms does not make her incompetent to testify against the perpetrator of the offense, when the facts are explained in simple or childlike language which the judge and jury can understand. State v. Pace, 301 So.2d 323 (La.1974).

The trial judge has wide discretion in determining competency of witnesses. On appeal, his ruling is entitled to great weight, particularly in a case of this nature inasmuch as he has had the opportunity to see and hear the child. State v. Pace, supra; State v. Milford, 225 La. 611, 73 So.2d 778 (1954); State v. Warlick, 179 La. 997, 155 So. 460 (1934). Under the facts of this case, there has been no showing that the trial judge abused his discretion in ruling that the ten year old rape victim had sufficient understanding to testify as a witness.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2.

This assignment of error was raised when defense counsel sought to have a psychiatrist who examined defendant testify as to whether defendant, at the time of the crime, was able to control himself and refrain from conduct which he knew was wrong. The record indicates that defendant was a deaf mute, eighteen years old at the time of the alleged offense; that he had been suspended or expelled from several schools because of “incorrigibility”; that he had molested his young sister; and that he had had several psychiatric consultations prior to the incident involved in this case.

At trial defense counsel sought to have a psychiatrist who had examined defendant testify as to whether it was possible that a person with defendant’s history and background could have “reached a mental state of impulse which he was completely unable to resist at that time?” The state objected to the question; the trial court sustained the objection; and defense counsel reserved a bill of exception to the ruling. After two recesses, apparently called to allow the judge and the two attorneys to clarify the scope of permissible inquiry, the psychiatrist was allowed to answer the following question:

“Q. . . . Doctor, in your opinion could the young man have suffered such a deranged condition of mental faculty as would render him incapable of distinguishing between right and wrong, or which could have rendered him incapable of reason or exercising will ?
“A. It’s possible that it could have.
“Q. Thank you. Now, Doctor, you said that this result could possibly occur?
“A. Yes, sir.”

The prosecutor then cross-examined the psychiatrist, in part, as follows :

“Q. And possibly, too, it might not occur ; is that correct ?
“A. Yes, sir. That is correct.
“Q. Alright. Let me ask it this way since you know that. Let me flat put the question to you. Did this boy know right from wrong on that day?
“A. Based on my examination I feel that he did — that’s my opinion.”

In brief to this Court, defendant argues that by asking the question objected to by the state, he was not attempting to present a defense of “irresistible impulse,” which has been held not to be a defense under Louisiana law, State v. Bickham, 239 La. 1094, 121 So.2d 207 (1960), but was attempting to set forth a defense based on the M’Naghten’s rule as he contends it was originally understood. However, regardless of the possible intention of the authors of the M’Naghten rule, see M’Naghten’s Case, 1 Car. & K. 130, 10 Clark & F 200, 8 Eng.Rep. 718, 722 (1843), the rule was originally stated as follows:

“[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was la-bouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”

This clearly does not include a defense based on an irresistible impulse. Furthermore, although intended as a codification of the M’Naghten rule, La.R.S. 14:14 sets forth for the courts of this state an independent and specific statutory definition of the defense of insanity:

“If the circumstances indicate that because of a mental disease or mental de-feet the offender wás incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.”

As previously stated by this Court, any modification or liberalization of this test of insanity must come from the legislature. State v. Berry, 324 So.2d 822 (La.1975); State v. Plaisance, 252 La. 212, 210 So.2d 323 (1968); State v. Bickham, 239 La. 1094, 121 So.2d 207 (1960). Thus, because the defense of insanity under current Louisiana law does not include the concept of irresistible impulse, it was not error for the trial court to exclude testimony as to whether or not defendant, at the time of the crime, was confronted with an impulse he could not resist.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3.

By this assignment of error, defendant argues that it was error for the trial court to refuse defendant’s motion for a new trial based on an allegation that the jury foreman had taken notes during trial and had referred to them during jury deliberations. At the hearing on this motion for a new trial, defense counsel attempted to call jurors to testify as to the notetak-ing. The state objected on the grounds that La.R.S. 15:470 makes jurors incompetent to testify concerning the misconduct of any other juror, and the objection was sustained.

While article 793 of the Louisiana Code of Criminal Procedure clearly prohibits the use of notes by any juror, the impeachment of a verdict by a juror is prohibited by the terms of La.R.S. 15:470, which provides as follows:

“No juror, grand or petit, is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.”

This Court has previously held that the policy of La.R.S. 15:470 prevails over that of La.Code of Criminal Procedure article 793 in this type of situation. State v. Fortenberry, 307 So.2d 296 (La.1975); State v. Ledet, 298 So,2d 761 (La.1974). As no additional independent evidence or testimony was offered to prove the alleged use of notes by the foreman, it was not error for the trial court to deny the motion for a new trial.

This assignment of error lacks merit.

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

      . At trial, an interpreter-translator was present to aid and assist defendant and the court.

      . Before the trial court defense counsel perfected seven bills of exception. However, as four of these bills were not briefed or argued before this Court they will not be considered on appeal. State v. Coleman, 322 So.2d 195 (La.1975); State, v. Singleton, 321 So.2d 509 (La.1975); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

      . As a matter of information, we note that defendant sought remedial or supervisory writs on this issue prior to sentencing. That application was denied by this Court. State v. Johanson, 294 So.2d 831 (La.1974).


author: DENNIS, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Herbert WOMACK, Jr.
    No. 57302.
    Supreme Court of Louisiana.
    May 17, 1976.

      L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was convicted of attempted simple burglary, a violation of La. R.S. 14:27 and 14:62, and sentenced to serve 4}4 years at hard labor. Four days later defendant was found to be a multiple offender. His original sentence was vacated and he was resentenced to serve 50 years at hard labor.

Prior to the hearing on the multiple offender bill, defendant filed a motion to quash on the grounds that the Habitual Offender Law, La.R.S. 15:529.1, is unconstitutional “because it fails to make a distinction between those crimes which require specific intent, general intent or negligence.” The trial court denied the motion to quash, and this denial is the subject of the sole assignment of error relied on in this appeal.

Defendant contends, in effect, that specific criminal intent, general criminal intent, and criminal negligence each represent a different level of consciousness associated with a different degree of culpability. He argues that the legislature should have drawn distinctions in the multiple offender statute by reserving its harshest treatment for those offenders who repeatedly commit crimes requiring specific intent, and that the enhanced penalty for other recidivists should be less severe.

The fallacy in defendant’s argument is his implicit assertion that the offender’s state of mind in committing a criminal act is the only criterion which the legislature may reasonably use in establishing the penalty for a particular crime. It is true that purposeful criminal behavior may in certain instances warrant more severe punishment than conduct resulting from general intent or negligence. For example, the death, penalty imposed for first degree murder, a crime requiring specific intent to kill or inflict great bodily harm, is much more severe than the penalty for manslaughter, which lacks the cool premeditation of murder, or negligent homicide, which does not involve intent. However, in these instances the severity of the crime is governed by the offender’s intent because the criminal consequence in each case is the same, viz., the killing of a human being.

In other cases, the legislature may reasonably choose to attach more significance to the relative extent of the harm characteristically done or threatened by the proscribed conduct. For example, the crime of negligent homicide, which does not require intentional conduct, is considered more heinous than defamation, which does, because of its more harmful consequences.

We find the legislature’s system of grading an offense on the basis of both the purposefulness of the crime and its total effect upon society to be sensible and desirable. Consequently, we do not think it unreasonable for the legislature to include within the ambit of the Habitual Offender Law crimes involving specific intent, general intent and negligence. The primary purpose of statutes authorizing additional punishment of a person convicted of a second or subsequent offense is to deter the repetition of crime by first offenders and to rid communities of unreformed criminals. The important consideration is the defendant’s repetition of criminal acts and not his “level of consciousness” in performing a single criminal act.

The reasons advanced by the defendant for declaring the Habitual Offender Law unconstitutional are without merit.

Accordingly, the sentence imposed in this case is affirmed.

CALOGERO, J., concurs with reasons.

CALOGERO, Justice

(concurring).

Defendant here moved to quash the multiple offender bill on the grounds that the Habitual Offender Law La.R.S. IS :529.1 is unconstitutional because it fails to distinguish, with respect to earlier convictions, those crimes which require specific intent, general intent or negligence. I concur in the majority’s finding no merit in the assignment of error. I do, however, consider it unnecessary in this case to rule on the merit of the argument for the reason that in my view this defendant has no standing to challenge the multiple offender statute on the basis asserted, for the former crimes with which he is charged in the Multiple Offender bill, were for armed robbery, two distinct attempted simple burglaries and a felony theft, all of which require specific intent and none of which require simply general intent or negligence.


text:
    John J. RICHARDS, Trustee, et al. v. Deborah Shapiro, wife of/and Donald J. VINK.
    No. 57872.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: Deborah Shapiro, wife of/and Donald J. Vink applying for Writs of Cer-tiorari, Prohibition and Mandamus.

Granted. (See Order.)

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 S. Sanford Levy, Judge of the Civil District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 25th day of May, 1976, 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 6th day of October, 1976, 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 v. Andrew POINTER and Donald Williams.
    No. 57886.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: State of Louisiana, applying for writs of Certiorari, Mandamus and Prohibition.

Granted. (See Order).

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 Jerome M. Winsberg, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 25th day of May, 1976, 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 3rd day of September, 1976, 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. Eugene WIGGINS v. C. Paul PHELPS, Warden (Acting) Louisiana State Penitentiary.
    No. 57607.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: Eugene Wiggins, applying for writ of mandamus ánd habeas corpus.

Writ denied. Application is now moot. Appeal has now been lodged in this Court.


text:
    STATE of Louisiana ex rel. Joseph V. FOSTER, Jr. and Donald Humble v. DEPARTMENT OF CORRECTIONS et al.
    No. 57863.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: Joseph V. Foster, Jr. and Donald Humble, applying for writ of habeas corpus and writ of certiorari.

Application denied. The showing made does not warrant the exercise of our jurisdiction.


text:
    STATE of Louisiana v. Michael J. RYAN.
    No. 57869.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: State of Louisiana, applying for review.

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


text:
    CHRISTY-ANN-LEA, INC. v. CHARTER HOMES OF LOUISIANA, INC.
    No. 57871.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: Christy-Ann-Lea, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Bernard. 327 So.2d 569.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    Charles Darwin SLATER v. Idabelle Cloutman, wife of Charles Darwin SLATER.
    No. 57874.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: Charles Darwin Slater, applying for Certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Plaquemines. 327 So.2d 616.

Application denied. No error of law in the Court of Appeal judgment.


text:
    Terry N. BURLEY v. LOUISIANA POWER AND LIGHT CO. et al. COAL OPERATORS CASUALTY CO. v. LOUISIANA POWER AND LIGHT CO. et al.
    No. 57875.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: Terry N. Burley applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Pla-quemines. 327 So.2d 585.

Writ denied. No error of law.


text:
    Launey W. BECKHAM v. CITY OF NEW ORLEANS.
    No. 57878.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: City of New Orleans, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth'Circuit, Parish of Orleans. 327 So.2d 460.

Writ denied. There is no error in the judgment below.


text:
    Myrtle Cobb, wife of and James WILSON v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 57880.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: Myrtle Cobb, wife of and James Wilson applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 328 So.2d 681.

Writ denied. Under the facts found by the court of appeal, there is no error of law.


text:
    James E. SEIFERT v. NEW ORLEANS PUBLIC SERVICE.
    No. 57889.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: James Seifert applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied. This court will not disturb proceedings in the trial court in absence of great error or prejudice, and none is here shown.


text:
    Mageline Dargin DUHON, Individually and as Natural Tutrix of the minor, Vanessa Marie Duhon v. Mrs. Pauline Bernard, widow of Ovide LEDOUX, et al.
    No. 57897.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: R. Crisman, G. W. D. Gray, W. A. Gautreaux, C. H. Haynes, M. J. Dugas and Travelers Ins. Co., applying for writ of certiorari.

Writ denied. This Court will not ordinarily disturb interlocutory rulings of the trial court in the absence of exceptional circumstances. Relator has an adequate remedy by appeal in the event of adverse judgment on the merits.


text:
    Claire S. MACKBEE v. FORD MOTOR COMPANY et al.
    No. 57890.
    Supreme Court of Louisiana.
    May 4, 1976.
   In re: Claire S. Mackbee, applying for Certiorari or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 327 So.2d 654.

Application denied. No error in the ruling of the Court of Appeal.


text:
    Denis A. DRENNING v. KUEBEL, INC., In Liquidation, et al.
    No. 57891.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Kuebel, Inc., in Liquidation, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 327 So.2d 571.

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:
    Mark D. DUFFY v. George E. THROWBRIDGE and Allstate Insurance Company.
    No. 57900.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Mark D. Duffy, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 327 So.2d 649.

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:
    Aldrich ADAMS v. Ed HARTZMAN et al. Curtis POCHE, Jr. and Velma Poche v. AVONDALE SHIPYARDS, INC.
    No. 57906.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Aldrich Adams, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 329 So.2d 218.

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:
    Curtis POCHE, Jr. and Velma Poche v. AVONDALE SHIPYARDS, INC. Oscar UMBEHAGEN v. EQUITABLE EQUIPMENT COMPANY.
    No. 57966.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Curtis Poche, Jr., Velma Poche, widow of Curtis Poche, Sr., Whitney Poche and Patricia Poche, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 329 So.2d 211.

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:
    NORTH AMERICAN CONTRACTING CORP. et al. v. John GIBSON et al.
    No. 57870.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: John Gibson, Jerry Germann and Turnkey Construction, Inc. 327 So.2d 444.

Writ refused. On the facts found by the court of appeal, there is no error of law in its judgment.


text:
    Edith Demoulin SUTTON v. Aaron A. SUTTON, Jr.
    No. 57885.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Edith Demoulin Sutton applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 327 So.2d 424.

Writ denied. The result is correct.


text:
    Williet J. FALCON, d/b/a Aqua Best Softner Service v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 57892.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: South Central Bell Telephone applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 327 So.2d 631.

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


text:
    Henry JOHNSON v. Hubert P. LABORDE, and New Orleans Public Service, Inc. NEEB-KEARNEY AND COMPANY, INC., et al. v. Hubert LABORDE et al. Wallace SHELTON v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 57893.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: New Orleans Public Service, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 327 So.2d 502.

Writ denied. The judgment is correct on the fact found below.


text:
    STATE of Louisiana v. Labon J. PORCHE, Jr.
    No. 57912.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Labon J. Porche, Jr., applying for Writ of Review.

Application denied. There is no error in the ruling of the trial court.