author: DENNIS, Justice.

text:
    STATE of Louisiana ex rel. Fred O. ROBERTSON v. Ross MAGGIO, Warden.
    No. 58299.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Robert Glass, New Orleans, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for defendant-respondent.
   DENNIS, Justice.

On May 18,1970, Fred O. Robertson, having entered a plea of guilty to a charge of simple burglary, La.R.S. 14:62, was sentenced to serve five years at hard labor. The trial judge, however, suspended execution of sentence and placed Robertson on active probation for five years.

On August 20, 1974, Robertson’s probation officer advised the judge by letter that he had lost contact with Robertson, and requested that the judge issue a warrant for his arrest. The arrest warrant was issued on September 3, 1974, and Robertson was taken into custody on December 13, 1974. On January 10, 1975, the district attorney filed a rule to show cause why Robertson’s probation should not be revoked. The rule, in describing the violations with which Robertson was charged, stated:

“Condition No. 4 — that he make no changes in his residence of [sic] employment. On May 10, 1974 this subject’s wife was contacted and it was learned that he had moved from his residence of 4013 Jumonville Street and his whereabouts were unknown.
“Condition No. 7 — that he remain within the jurisdiction of the Court unless given written permission to leave. Inasmuch as this subject moved without notifying his Probation Officer of his new address, a warrant was issued for his arrest on September 3, 1974 for absconding from supervision.”

A hearing on the rule was held January 24, 1975.

At the hearing Robertson’s probation officer testified that Robertson had fully complied with his probation conditions for the first four years of his probation; he had successfully completed the federal drug rehabilitation program in which he had been required to participate as a condition of probation; he had maintained steady employment as a truck driver or mechanic for the City of New Orleans since 1971; and he had resided with and provided for his wife at their residence at 4013 Jumonville Street, New Orleans, until May 10, 1974, at which time, because of marital difficulties, he moved to his mother’s home at 5622 N. Robertson Street, New Orleans. After less than two months, Robertson and his wife resolved their difficulties and took up residence together at 4219 N. Claiborne Street, New Orleans. The probation officer testified that Robertson failed to obtain prior approval of these changes in residence, and that he had been unable to locate Robertson during the summer of 1974.

The probation officer’s unsuccessful efforts to locate Robertson during this brief period consisted of two or three telephone calls to his wife, who was temporarily estranged from Robertson at the time, arid who denied knowing his whereabouts, and of mailing a single “appointment letter” to Robertson at his mother’s address. The letter was returned by the Post Office inexplicably marked undeliverable. Robertson testified that he received all of his mail at his mother’s address, and offered no explanation why the appointment letter was returned to the probation department by the post office. The probation officer had Robertson’s mother’s address in his file, but, with the exception of the appointment letter, never attempted to contact Robertson there. Likewise, although the probation officer knew Robertson was employed by the City of New Orleans, he apparently made no effort to locate Robertson through his job.

No evidence was adduced at the hearing that Robertson failed to submit the required monthly written reports to the probation department. Robertson testified at the hearing that he had hand-delivered the reports to the probation office each month, leaving them with “the lady at the desk.” The probation officer admitted that the written reports for September and October of 1974 were received in his office, and that they contained notification of Robertson’s Claiborne Street address. The probation officer, however, did not see these reports until after Robertson’s arrest on December 13, 1974, because the case had been transferred to his supervisor when the arrest warrant issued on September 3, 1974.

At the conclusion of the hearing, Robertson’s counsel urged the trial judge to regard any violations that might have been proved as insubstantial and unintentional. The judge responded,

“No, I can’t do that, * * * . Probation would be absolutely no good to anybody if I went back on my word. I make it a point to tell everyone of these people that this is the last chance you’re getting. Don’t ever come back. I practically beg them not to come back. Because if they do, I got to stick to what I told them. If I don’t, they’ll all be doing it. Where would the probation system be then.
tt * * *
“I have no alternative but to stick to my word. If I don’t, every probationer from this court will be doing the same thing, and I’m not going to have that. * * * ” (Emphasis added.)

The judge then revoked Robertson’s probation and ordered that the original five year sentence be made executory; he declined to give Robertson credit for the time previously served on probation.

In March of 1976, Robertson filed a pro se petition for writ of habeas corpus in the Criminal District Court for the Parish of Orleans. The writ was denied by the court without a hearing on May 27, 1976. On July 8, 1976, Robertson filed a petition for writ of habeas corpus in this Court. Subsequently, this Court, having obtained a transcript of the probation revocation hearing, issued a writ of certiorari and set the matter for hearing on November 8, 1976. By separate order, this Court appointed counsel to represent Robertson in the presentation of his case.

After full consideration of this case, we are of the opinion that Robertson was not afforded due process in the revocation proceeding, and that the trial judge abdicated his responsibility to exercise the sound discretion mandated by the legislature in determining the severity of the probation violation, if any, and in imposing the appropriate sanction therefor. Accordingly, the district court’s order revoking Robertson’s probation must be overturned, and, because the probationary period expired in May, 1975, Fred 0. Robertson must be immediately released from custody and discharged from further supervision by the State.

In making its factual allegation that Robertson violated the terms of his probation the State asserted that Robertson “had moved from his residence of 4013 Jumon-ville Street and his whereabouts were unknown,” and that Robertson had “moved without notifying his Probation Officer of his new address.”

Under the terms of condition number eight of Robertson’s probation, he was to “notify the probation officer or [the Criminal District Court] of any change in [his] address or employment.” This condition did not prohibit Robertson from making changes in his residence nor require prior approval of them. By its terms Robertson’s sole obligation was to give notice of any change in residence to the proper authorities. The uncontradicted evidence adduced at the hearing on the rule to show cause indicated that notice was given by Robertson of his change in address — at the latest in his September, 1974 monthly report.

By the end of June, Robertson had settled his differences with his wife, and together they moved to the Claiborne Street address. Assuming that the first notice of his new address given to the probation office was that contained in Robertson’s monthly report for September, the district judge might have been justified in finding a temporary breach of the probation conditions on the basis of Robertson’s delay in giving the required notice of his change in address.

The State, however, did not charge Robertson with having violated condition number eight. To allow Robertson’s probation to be revoked on the basis of a violation not charged would be antithetical to due process, and contrary to recent decisions by the United States Supreme Court and by this Court. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); State v. Harris, 312 So.2d 643 (La.1975). According to these cases a probationer is entitled, among other rights, to prior notice of his alleged probation violations, and an opportunity to defend against the particular charges made.

The State, in its rule to show cause, specifically alleged violations of conditions numbers four and seven of his probation. Condition number four required Robertson to devote himself to an employment or occupation approved by the probation officer; condition number seven instructed him to remain within the jurisdiction of the Criminal District Court of Orleans Parish, unless he obtained prior approval to leave. Absolutely no evidence introduced at the hearing on the rule to show cause justifies the conclusion that Robertson absented himself from the jurisdiction of the Orleans Parish Criminal District Court. Likewise, the un-contradicted evidence in the record is that Robertson was employed by the City of New Orleans from 1971 to the time of his arrest, and there is no suggestion in the record that this occupation was not approved.

Had the State properly charged Robertson with a violation of condition number eight of his probation, and assuming Robertson’s delay in notifying the probation office of his change in address was at least a minor violation of that condition, we would nevertheless be forced to conclude, on the basis of the record, that the district judge erred in systematically revoking Robertson’s probation without exercising the discretion vested in him by the legislature.

Louisiana Code of Criminal Procedure Article 900, in pertinent part, provides:

“ * * * If the court decides that the defendant has violated, or was about to violate, a condition of his probation it may:
“(1) Reprimand and warn the defendant;
“(2) Order that supervision be intensified;
“(3) Add additional conditions to the probation; or
“(4) Order that the probation be revoked. In the event of revocation the defendant shall serve the sentence suspended, with or without credit for the time served on probation in the discretion of the court. * * * ”

This article gives the judge wide latitude in responding to probation violations, and calls for the sound exercise of judicial discretion.

It is not without reason that the legislature provided for the exercise of judicial discretion in dealing with probation violations — they can be minor and ephemeral, as here, or serious. A single, inflexible policy for dealing with all violations would not serve the legislatively desired goal of rehabilitation. Cf. Wilson, The Louisiana Criminal Code: Making the Punishment Fit the Criminal, 5 La.L.Rev. 53, 56 (1942). The fact that the legislature in enacting Louisiana Code of Criminal Procedure Article 900 granted to the judge a wide range of alternatives for dealing with individuals who violate the conditions of their probation indicates that the lawmakers intended the punishment for probation violations to be tailored to the facts of the case, the seriousness of the misdeed, and the needs of the probationer.

An examination of the record reveals a refusal by the district judge to exercise the discretion vested in him by the legislature, finding instead he had “no alternative” but to revoke Robertson’s probation in accordance with his policy “that I never give anybody a second chance.” At the hearing on the rule to show cause the judge made it clear that his uniform policy of automatic probation revocation for every violation, regardless of severity or of circumstance, was based on his own notion that the probation system would be served better by uniformly severe treatment of every violation.

The legislature, however, has expressed in Article 900 the policy of the State, and the district judge improperly disregarded its mandate by following his own harsh and arbitrary policy — revocation of probation without credit for time served — without regard for the facts of the case, the seriousness of the violation, or the appropriateness of less drastic sanctions.

Where the legislature has established a wide range of sanctions for improper conduct, a judge vested with discretion in choosing which of those sanctions he will impose in a given case cannot be permitted to impose uniformly the most severe penalty in all cases. Such a policy constitutes a failure to exercise judicial discretion. Cf. United States v. Hartford, 489 F.2d 652 (5th Cir. 1974); United States v. Daniels, 446 F.2d 967 (6th Cir. 1971).

For the foregoing reasons, the judgment of the district court revoking Fred O. Robertson’s probation and ordering that his five-year prison sentence be made executo-ry is set aside and annulled. Because Robertson’s probation, had it not been improperly revoked by the judge below, would have terminated in May of 1975, his immediate release from custody and further supervision by the State is hereby ordered.

REVERSED AND RENDERED.

SUMMERS, J., concurs.

      . The following conditions of probation were imposed on Robertson in accordance with Louisiana Code of Criminal Procedure Article 895 as it read before its amendment in 1972 and 1974:

        “(1) Meet all your family responsibilities under the laws of Louisiana;
      (2) Report to the probation officer as directed by said officer;
      (3) Permit the probation officer to visit you at your home or elsewhere;
      (4) Devote yourself to an employment or occupation approved by the probation officer;
      (5) Refrain from owning or possessing any firearm or dangerous weapon unless granted written permission by your probation officer;
      (6) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;
      (7) Remain within the jurisdiction of this Court unless written permission to do otherwise is given by this Court or the probation officer; and you are hereby given permission to leave the jurisdiction for the purpose of going into the hospital;
      (8) Notify the probation officer or this Court of any change in your address or employment;
      (9) Refrain from the violation of any law of Louisiana, or of any other State, or of the District of Columbia, or of the United States; and to refrain from the violation of any Ordinance of any political subdivision of the State of Louisiana;
      (10)And, as a special condition of probation, that you qualify for and be accepted by the U.S. Public Health Service Hospital for treatment of narcotic addiction under Title III of the Narcotic Addict Rehabilitation Act of 1966 of the U. S. Congress. You are remanded to the Parish Prison to be released only to your attorney for the purpose of appearing in the U. S. District Court for the Eastern District of Louisiana in connection with your petition for commitment for treatment of drug addiction, and for the purpose of being transported to a designated U. S. Public Health Hospital.”

      . This Court was informed during oral argument that Robertson, who had been incarcerated since his arrest in December of 1974, has been released on parole, having served one-third of his five-year prison sentence.

      . Where the legislature has made a pre-deter-mination of the seriousness of a probation violation, as where the probationer commits another felony, it has restricted the permissible range of judicial discretion in dealing with the violation. See, La.C.Cr.P. art. 901.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Edward C. WILLIAMS.
    No. 58319.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      C. Alan Lasseigne, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis F. Du-gas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On June 10, 1975, Georgette Marlow, the cashier at the Cabin Boy Restaurant in Thibodaux, Louisiana, was robbed by a man holding a gun. Some two hours later Edward Williams was arrested for the armed robbery. He was tried in February of 1976, found guilty as charged, and sentenced to sixty years at hard labor. He now appeals his conviction and sentence on the basis of fifteen assignments of error.

ASSIGNMENT OF ERROR NO. 1.

Defendant objected at trial to the introduction into evidence of a twenty-two caliber pistol, three bullets taken out of the pistol, and photographs of the gun and defendant’s fingerprint found on the gun. He argues that the state did not establish that the gun was the one used by the man who robbed the cashier at the restaurant.

The twenty-two caliber pistol along with some money was found rolled up in a brown shirt about thirty feet from where defendant Williams was arrested. He was in his car in a wooded area, and the items were found at the base of a nearby tree. The officer who discovered the items testified that leaves and debris were pushed around in a manner suggesting concealment. Moreover, although none of the three witnesses testified that they could positively identify the gun as the one brandished by the robber, each of the three eye witnesses who testified described the gun used as nickel or chrome plated, as was the gun introduced into evidence, and one witness testified it was similar to the one used in the robbery.

Defendant specifically directs the Court’s attention to the testimony of the victim, Georgette Marlow, who testified that the gun used was thirty-eight caliber. Although this witness first testified that the gun used was a thirty-eight, she later explained that she had first believed it was a thirty-eight because her fiancee, who was also a witness to the robbery, had told her that it looked like a thirty-eight. Moreover, the police officer who discovered the gun in the woods testified that he at first thought it was the larger gauge gun.

Louisiana Revised Statute 15:441 defines relevant evidence as evidence “tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.” A trial judge determines whether evidence is relevant by deciding whether it bears a rational connection to the fact which is at issue in the case. State v. Freeman, 306 So.2d 703 (La.1975). Stated another way, the test for relevancy of physical evidence is whether it is “more probable than not that the object is the one connected with the case.” State v. Collins, 328 So.2d 674 (La.1976). Since there was testimony that the twenty-two caliber gun looked like the one used in the robbery, since it matched the general description of the weapon, and since the gun containing defendant’s fingerprint was found near defendant soon after the robbery in a place hidden from view, we find that the trial judge did not err when he determined that the pistol was relevant and admitted it in evidence. Since the gun was admissible, the bullets taken from the gun and the photographs of the fingerprint found on the gun were likewise relevant and admissible.

We find, therefore, that the trial judge properly permitted the introduction into evidence of these items.

ASSIGNMENTS OF ERROR NOS. 2, 3 and 4.

These assignments deal with the in-court identification of defendant Williams by three eye-witnesses, Georgette Marlow, Mattie Lee Taylor, and Brenda Alexis.

Shortly after the robbery, these women were taken to police headquarters where they viewed photographs. Brenda Alexis also viewed defendant in a one-man show-up. Defendant contends that these procedures were impermissibly suggestive and tainted the in-court identifications made by these three women.

The photographs shown to the women were in two sets. In one set of photographs, all but one were five by four inch mug shots. The fifth was a picture of defendant which was not a mug shot and which was much larger, eight by five inches. In the second set, defendant’s picture was a polaroid print three and one-half inches by four and one-half inches taken of him wearing ordinary clothing after he was brought to the police station. The other pictures in this set were, again, four by five inch mug shots of men in prison clothing. Each of these witnesses was shown the two sets of pictures and each identified defendant’s picture as the perpetrator of the crime in one of the two sets, or both of them.

Defendant argues that the fact that his picture was not of the same size and type as the other photographs used in the show-up made the show-up suggestive, citing Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Further, the defendant argues that the procedure was suggestive because the police encouraged one of the witnesses to carefully examine defendant’s picture and because with respect to the two sets of photographs one witness knew all of the persons depicted except defendant, and another witness knew some of the persons depicted, although not the defendant.

In their testimony, the police officers explained why defendant’s picture was different from the others shown to the witnesses. The photo in the first set was obtained from the Terrebonne Parish Sheriff’s Office. After receiving the radio dispatch of the robbery at the Cabin Boy Restaurant, two of the officers saw a white Chrysler driven by a man who fit the general description relayed in the dispatch. The car was stopped for a light about two in the morning approximately a mile and a half from the scene of the robbery. The officers recorded the license number of the car and a routine check was made for the owner. Defendant’s name was transmitted as the owner and his picture was sent to the sheriff’s office. This was the picture used in the first set. Since the picture was evidently not a recent one, the police officers decided to photograph the suspect. Because they were out of the film used in the camera with which they took mug shots, the officers took defendant’s picture with a Polaroid camera they had.

Although defendant argues that one witness, Georgette Marlow, was coaxed by police to carefully examine defendant’s picture, our reading of the record reveals that she was steadfast in her assertions that the officers did not suggest that defendant was the man who committed the crime. Although she was told that a suspect was being held, no suggestion was made that defendant was the suspect. She was simply urged to look at the picture carefully so as to make sure of her identification.

Defendant further argues that the one man show-up was impermissibly suggestive. One of the witnesses, Brenda Alexis, told the officers, as she had told other witnesses during the course of the robbery, that she recognized the robber because she had attended Southdown High School with him some years before. Either before or after she had identified defendant from the sets of photographs (she did not remember which), she was told that defendant had been arrested. At her request, she was allowed to view him through a one-way mirror. She evidently told the officers that she wanted to be certain of her identification.

Certainly it is not appropriate for policemen to assemble photographs for viewing wherein all prints are similar in character and size except that of the chief suspect. And, of course, in this case two sets of photographs were used, in each of which defendant’s print was visibly distinguishable from the others. This doubtful situation was aggravated by the fact that one witness was asked to carefully examine defendant’s picture, and two of the witnesses, as earlier related, knew many of the men in the photographs. All of these facts are certainly to be avoided in show-up procedures, where possible. Additionally, one witness experienced a one-on-one lineup.

When appellate courts review an identification procedure, the court must decide whether the photographic lineup was so unnecessarily suggestive and conducive to irreparable mistaken identification that defendant was denied due process of law. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Hargrove, 330 So.2d 895 (La.1976). In making this determination, courts must consider the totality of the circumstances.

We have carefully considered the circumstances surrounding these photographic lineups displayed to the three witnesses and have concluded that their legality is a close issue. The one-on-one identification procedure, not at all favored in our law, Foster v. California, supra., and State v. Newman, 283 So.2d 756 (La.1973), was suggestive and therefore impermissible. Even if we were to conclude, however, that the photographic show-ups were also so im-permissibly suggestive as to give rise to a substantial likelihood of irreparable mis-identification, we would still have to determine whether the witnesses’ in-court identification was based on an independent source and thus not violative of defendant’s right to due process of law. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Bland, 310 So.2d 622 (La.1975) and the cases cited therein. This latter determination is indeed made necessary by our finding that the one-on-one lineup was impermissible.

A determination of whether the witnesses’ in-court identification was based on the independent source involves three factors: the prior acquaintance of the witness with the accused; the length of time the witness observed the perpetrator before, during and after the commission of the offense; and the circumstances under which the observation was made. State v. Newman, supra., and the cases cited therein.

These women saw the unmasked perpetrator clearly in the restaurant for a period of about fifteen or twenty minutes. According to the testimony of all the witnesses, the restaurant was well-lighted. One of the women, Mattie Lee Taylor, was facing defendant directly when he entered the restaurant, and when he gave her the “power sign” she returned it. The cashier, Georgette Marlow, stood directly across the counter facing the robber nearly the entire time he was in the restaurant. Brenda Alexis had known defendant from school and told her companion that she recognized him as soon as she saw him in the restaurant. She testified that she watched the man during the robbery, but that she was calm and not afraid.

After reviewing these factors, we agree with the trial judge that these witnesses identified the accused in court based on their viewing of him during the robbery, and that Ms. Alexis identified him additionally on the basis of her previous acquaintance with him. Therefore, we believe that even though the police officers, who should have placed defendant in a live lineup, allowed Ms. Alexis to view defendant in this impermissible way, and conducted a suspect photographic show-up with all three women, these procedures do not, in the particular circumstances now before us, require that we reverse defendant’s conviction, because we find that each of the three in-court identifications was based on an independent source.

For these reasons, assignments of error two and three lack merit.

In assignment number four defendant Williams, a black man charged with committing a crime known to have been committed by a black man, claims that he was denied a fair trial because when a witness identified him at trial he was the only black in the courtroom.

At three times during the trial, defendant raised the fact that defendant Williams was the only black man in the courtroom. However, defendant did not ask for a mistrial on that basis, or make any objection, or request any action on the part of the trial judge to rectify what he now argues was a prejudicial situation. He simply made it a part of the record that this situation existed. Since defendant is not alleging error in a ruling below, there is nothing now before us for review. C.Cr.P. art. 920.

ASSIGNMENTS OF ERROR NOS. 5, 6 and 15.

Defendant contends in these three assignments that he was denied effective cross-examination of state witnesses by the rulings of the trial judge. The first objection was made when the judge did not allow Ms. Alexis to answer defendant’s question whether she thought that her previous testimony that she knew defendant in high school might be incorrect if she learned defendant had had brothers at Southdown High School. She was asked this question immediately after she had answered, in response to defendant’s question, that she did not know any of defendant’s brothers. Next, defendant contends that he was not allowed to ask Ms. Alexis how many grades there were at the school. Previously, she had been questioned extensively concerning the number of students at the school, the number of classes, the size of the building, and numerous other matters concerning the school.

We find no error in either of these rulings. The trial judge is afforded wide discretion in the examination of witnesses at trial. La.R.S. 15:275; State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972); see 21 Loyola L.Rev. 320 (1975). When a state witness has been repeatedly cross-examined on a single subject, the trial judge who sustains the state’s objection to such prolonged questioning does not abuse his discretion.

Defendant’s next complaint arose in the following manner. His lawyer asked a police officer about his training in regard to lineups. The officer thereupon related that the witness (Ms. Alexis) told him she had gone to school with the man, so after she identified him in the photo “she requested to take a look at him through the mirror. So we did so.” Defense counsel objected to the witness’ answer contending it was clearly not responsive to the question and that it was offered by the officer both to evade the question and to justify his action in conducting the one-man show-up. This objection is without merit. The unresponsive answer did not in any way prejudice defendant, for the jury had already heard from Ms. Alexis that she recognized the robber as a man with whom she had gone to school, that she had identified his photo, and that she had asked to see him in order to corroborate her identification.

Another defense objection followed during the questioning of a police officer who was asked whether one of the pictures used in the show-up was grossly exaggerated in size and not in accord with the procedures he had been taught for the identification viewing of photographs. Again, no prejudice resulted from the court’s sustaining the state’s objection to the question. Full and complete questioning was allowed at trial concerning the size of the photograph and the size of photographs usually submitted. Also, the district attorney repeatedly agreed to stipulate that the difference existed. The jury was well apprised of the difference and its significance in possibly affecting the reliability of the witnesses’ identification.

Defendant complains that the court denied the defense an opportunity to recross-examine a state witness after the district attorney, on re-direct, introduced the “identification” pictures in evidence. The trial judge correctly stated that the defendant used these pictures in fully interrogating the witness (Brenda Alexis) about them, and nothing new was brought out with respect to them on re-direct. Since nothing new came before the jury when the state introduced the pictures on re-direct, denial of re-cross was not erroneous. La.R.S. 15:281.

Finally, defendant complains of the trial judge’s refusal to allow two look-alike pictures to be used by defense counsel in cross-examination of Ms. Alexis. The pictures themselves are not part of the record before this Court because the trial judge sustained defendant’s own objection to their admission into evidence. According to the comments of the trial judge, however, the pictures were of two white males approximately fifty-five years of age who were not related, but whose pictures seemed to be of the same person. Although these men were in no way connected with the robbery at the Cabin Boy Restaurant, the defense counsel wished to show them to the witness in the hopes of securing from her an admission that there are look-alike people in the world, and, generally, to test her ability to identify people. The defense position throughout the trial was that defendant was mistakenly identified by these witnesses because he apparently looked very much like the perpetrator.

We find no abuse of discretion in the trial court’s ruling. When a defendant attempts to cross-examine a state witness through the use of a physical object not relevant to the issue at hand, it is not error for the trial judge to refuse to allow such procedure. State v. Nix, 327 So.2d 301, 345 (La.1976). While it might have been preferable for the court to have allowed the use of these photographs for the stated purpose, we cannot say that his refusal to do so constitutes reversible error.

For these reasons, we find that the trial judge’s rulings did not deny defendant effective cross-examination of witnesses. Hence, assignments five, six and fifteen lack merit.

ASSIGNMENT OF ERROR NO. 7.

Defendant Williams objected to the alleged hearsay testimony of Deputy Carrol Delaune who testified that after defendant was taken from the rear seat of his Chrysler in Acadia Woods:

“The subject gave us his name, which was Edward Williams, and he said he was from Houma. At that time Lt. Adams advised me that he fit the description — ”

An objection was made and overruled.

Defendant submits that this testimony was inadmissible hearsay under La.R.S. 15:434 which, coupled with the alleged infirmities of the identification procedures, created prejudice in that it bolstered the identifications.

The assignments lacks merit. Apparently the officer made the remark so as to explain the reason for Williams’ arrest which followed. See State v. Sneed, 328 So.2d 126 (La.1976); State v. Brown, 326 So.2d 839 (La.1976). The remark did not bolster identification because when defendant was arrested no one had yet identified him. This is not an instance where an officer related a witness’ out-of-court identification of a defendant such as we found inadmissible in State v. Jacobs, (La.1976), No. 57, 629 and State v. Ford, 336 So.2d 817 (La.1976). Here the officer did not identify defendant as the perpetrator nor did he repeat anyone else’s identification of Williams as the robber. He merely related that another officer had told him that Williams fit the robber’s description. This remark was not hearsay because, although it was the statement of a third person, it was offered to prove that the utterance occurred, prompting the witness to arrest defendant, and not to prove the truth of the facts recited. State v. Monk, 315 So.2d 727 (La.1975). The officer here was attempting to explain why he arrested the accused; he was not testifying that defendant at that point was identified to him as the robber. State v. Richey, 258 La. 1094, 249 So.2d 143 (1971). Even if the remark were to be deemed inadmissible hearsay, we would not find reversibly prejudicial the out-of-court statement of a fellow officer simply that defendant fit a general description of a robbery perpetrator. C.Cr.P. art. 921. The assignment lacks merit.

ASSIGNMENTS OF ERRORS NOS. 8 and 9.

These errors relate to alleged prejudicial comments made by the district attorney in closing argument and by a state witness.

The first of these occurrences was when the prosecutor, in rebuttal, stated:

"There were two sets of photographs. Second about these photographs is that one set of these photographs — the big one, the one that he complains about, is like all the rest of the photographs in that' it’s a picture of a criminal with a mugshot, with a number beneath it.”

Defendant moved for a mistrial which was denied. Defendant then moved for an admonition to the jury “that they are to disregard that this man is a criminal and is nothing but a mugshot (sic), which is standard booking procedure, and no implications are to be made.” The trial judge agreed with defense counsel and admonished the jury as follows:

“You are to disregard any comment by the Assistant District Attorney that may have an inference or a connotation that the accused has been convicted of any crime.”
DISTRICT ATTORNEY: I apologize.
THE COURT: And as far as you are concerned this man has not been convicted of any crime whatsoever, and you are to disregard any statement or comment by the District Attorney, which would imply that he has. You are not to consider that comment or any inference of that comment in your deliberations whatsoever.”
DEFENSE COUNSEL: Thank you, Your Honor.”

Defense counsel did not tell the judge that he felt the admonition given was insufficient to cure the prejudice of the prosecutor’s remark, nor did he renew his motion for a mistrial.

An error cannot be availed of on appeal if the party has not made known to the court the action which he wishes the court to take. C.Cr.P. art. 841. Here, the court did admonish the jury to disregard the prosecutor’s remark and the attorney merely said “Thank you,” leaving the impression that he was satisfied that the judge’s admonition cured any possible prejudice.

Even had defendant objected to the admonition we would find no error here. The picture the prosecutor referred to was not in fact a mug shot, but was the polaroid picture of the defendant taken in the police office. Much of the trial testimony centered around this picture and it was viewed by the jury repeatedly, often at defendant’s request. There is no error presented here.

Defendant complains of two other remarks made by the prosecutor in closing argument. He argues that the assistant district attorney implied that it was the defendant’s burden to prove his innocence when he said: “It [the testimony of a defense witness] didn’t say that Edward Charles Williams didn’t rob the Cabin Boy.” Defendant also argues that the assistant district attorney, in rebuttal, implied that the number of witnesses was crucial, rather than the veracity or accuracy of their testimony, when he said: “If we can’t convict a man of armed robbery when three people come in and they put their finger in his face and say, ‘He’s the one that did it’ then we can’t convict him.”

Defendant did not object to either of these remarks by the prosecutor, ask for an admonition, or move for a mistrial. As a result, he cannot raise the issue on appeal. C.Cr.P. art. 841. Moreover, even had defense counsel made known to the trial judge his objection to the remarks, these remarks were essentially comments upon the evidence, a proper function of the prosecutor in closing argument. C.Cr.P. art. 774.

Finally, defendant complains about the testimony of a police officer to the effect that defendant Williams had been arrested at a previous time. Here too the defendant did not make known to the trial judge that he objected to the testimony, or why he objected. C.Cr.P. art. 841. The trial judge therefore was not alerted of the possibility of error at a time when the error could have been cured. Therefore, this argument, like the others in assignments of error eight and nine, lack merit.

ASSIGNMENTS OF ERROR NOS. 10 and 11.

In these assignments defendant complains of the sixty-year sentence which was imposed by the trial judge. Specifically he complains in assignment number ten that the trial judge refused to exercise his discretion to sentence defendant to a term of from five to ninety-nine years for the crime of armed robbery. In assignment number eleven he complains that the judge erred when he refused to accept the pre-trial plea bargain between defendant and the state wherein the defendant agreed to plead guilty to armed robbery and the state agreed to recommend a sentence of nine years.

Upon defendant’s objection to the sixty year sentence, the trial judge made certain comments the meaning of which we construe to be as follows: that the judge personally did not consider nine years adequate punishment for the commission of an armed robbery in any case; that the minimum sentence he had ever previously imposed was thirty to thirty-five years; that in the case at hand he would not consider imposing less than thirty-five years; that an armed robbery is the most dangerous crime possible, next to murder, and he treats it with gravity.

R.S. 14:64 does indeed provide that for its commission a person “shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years without benefit of parole, probation or suspension of sentence.” (emphasis added) The statute grants the trial judge a wide range of discretion and in effect directs that the trial judge shall consider that full range of sentencing in his deliberation.

We have this date examined the exercise of a trial judge’s discretion in imposing punishment upon a person who has violated a condition of his probation. State ex rel. Robertson v. Maggio, Warden, 341 So.2d 366 (La.1976), No. 58,299. There we found error in the judge’s refusal to exercise the discretion placed in him by the legislature. We said that:

“The fact that the legislature in enacting Louisiana Code of Criminal Procedure Article 900 granted to the judge a wide range of alternatives for dealing with individuals who violate the conditions of their probation indicates that the lawmakers intended the punishment for probation violations to be tailored to the facts of the case, the seriousness of the misdeed, and the needs of the probation-

Were the trial judge in this case to have made it abundantly clear that he invariably refuses to consider in sentencing for armed robbery the imposition of less than thirty years (or some lesser number in excess of five), we would be constrained for reasons similar to those expressed in Robertson to find such conduct an abdication of his responsibility to exercise the sound discretion mandated by the legislature. However, we do not find that to have been the case here. While the trial judge did express his personal view that nine years for any armed robbery conviction is inadequate, to that extent his opinion being somewhat at variance with that of the legislature, we cannot construe his comments to indicate a refusal on his part to give consideration to the full range of penalty prescribed by the legislature.

In assignment number eleven defendant complains that the trial judge erred when he refused to accept a plea-bargain.

A trial judge is under no statutory duty to accept a plea bargain, and his decision not to do so is not reviewable by this Court. See State v. Green, 221 La. 713, 60 So.2d 208 (1952); ABA Standards, Pleas of Guilty § 3.3 (1968).

For these reasons we find no merit in assignments of error numbers ten and eleven.

ASSIGNMENT OF ERROR NO. 12.

Defendant contends his constitutional rights have been violated because he was not indicted by a grand jury. The theory of this argument is that a possible ninety-nine year sentence without benefit of probation, parole or suspension of sentence can be greater than, or tantamount to, a life sentence.

The crime in this case was committed on June 10, 1975. Article 1, Section 15 of the Louisiana Constitution (1974) provides:

“Prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury.”

See also La.C.Cr.P. art. 382, as amended, Acts 1974, Ex.Sess. No. 19, sec. 1. Armed robbery is not a capital offense. State v. Monk, supra. Nor does the fact that La. R.S. 14:64 allows a possible ninety-nine year sentence without benefit of probation, parole or suspension of sentence mean that armed robbery is a crime punishable by life imprisonment. The institution of prosecution for armed robbery by bill of information is therefore proper. Assignment of error number twelve is without merit.

ASSIGNMENT OF ERROR NO. 13.

In this assignment, defendant complains that the sentence imposed on him constituted cruel and unusual punishment and a denial of equal protection because the statute under which he was sentenced lacked guidelines to aid the trial judge in his determination of the severity of sentence. Moreover, he urges that the long sentence was excessive in view of the simple, non-aggravated circumstances involved in the armed robbery. We note, however, that we have repeatedly held that sentences imposed within the statutory limits of the armed robbery statute do not constitute cruel and unusual punishment nor a denial of equal protection. State v. Martin, 304 So.2d 328 (La.1974); State v. Howard, 262 La. 270, 263 So.2d 32 (1972), and the cases cited therein.

Likewise we find no merit in defendant’s contention that the sixty year sentence imposed was excessive.

ASSIGNMENT OF ERROR NO. 14.

Defendant contends that the jury deliberated from 12:39 p. m. to 2:37 p. m. and were not informed of the fact that they were entitled to lunch. Defendant submits that “the discomfort of having to go without a meal until a verdict was reached, with no alternative presented to them, caused the jury to resolve its differences and convict him.”

Requiring deliberation without break during the normal lunch period, by itself, presents no indication that the jury’s ver-diet was improperly influenced. This argument lacks substance.

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

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


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Michael FINLEY et al.
    No. 58343.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      James K. McCay, Baton Rouge, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Michael Finley, Timothy Bindom and Leroy Scott were charged in the sanie bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury, they were found guilty as charged. Subsequently, Michael Finley and Timothy Bindom were each sentenced to serve three years at hard labor with credit given toward service of sentence for time spent in actual custody prior to imposition of sentence. The court suspended the imposition of sentence of Leroy Scott and placed him on probation for a period of three years. On appeal, defendants rely on seven assignments of error for reversal of their convictions and sentences.

FACTS

The record reflects that at about 10:35 p. m. on Sunday, January 19, 1975, Baton Rouge City Police Officer Emmet W. Smart observed an occupied Pontiac parked with lights out on a side street adjacent to the H. W. Parson Motors used car lot. Alfred Augustus, the owner of the vehicle, was behind the steering wheel; defendant Leroy Scott, seated in the rear of the vehicle, slid down in the back seat as Officer Smart’s police unit approached. The officer testified that as he pulled up to the Pontiac and exited his unit with his police canine, he observed defendants Michael Finley and Timothy Bindom in the well-lighted used car parking lot which, at that late hour, was closed for business. Officer Smart saw Finley on the ground pushing something under Chevrolet pickup truck. He radioed police headquarters concerning the situation and then approached the Pontiac, ordering Augustus and Scott out of the car and Finley and Bindom out of the parking lot. After the arrival of a second police unit, Officer Smart investigated the area where Finley and Bindom had been standing. He discovered a tire, tire rim and set of car keys on the ground under the Chevrolet truck. Mr. Parson, the owner of the used car lot, was called to the scene. He identified the keys as belonging to a used Oldsmobile parked nearby on the car lot. On opening the trunk of the vehicle, it was discovered that the car’s spare tire and rim were missing. Mr. Parson verified that the items found under the truck were taken from the Oldsmobile trunk; no one had been authorized to remove them. Moreover, Mr. Parson had personally parked the Chevrolet truck at 6:00 p. m. on the previous evening, at which time there was nothing on the ground underneath it. Each of the defendants took the stand and testified that they had been together since about 8:30 p. m. that evening and went by the used car lot only to look over the automobiles available for purchase or trade. Defendant Scott claimed that he remained in the car with the driver Alfred Augustus because of the cold weather.

ASSIGNMENT OF ERROR NO. 1

Defendants contend the trial judge erred in allowing the state to question defendant Michael Finley concerning his refusal to sign a “waiver of rights of arrestee” form.

After the state had concluded its cross-examination of Finley, the witness stated on his own that at the time of his arrest he had asked Officer Smart to take fingerprints at the scene. In response to this statement, the district attorney posed several questions concerning defendant’s refusal to make a statement after arrest and to sign a waiver of rights form. He then marked the form as State Exhibit No. 1 and proceeded to lay a foundation for its admission into evidence by questioning defendant as to whether he understood its nature and content. When the state formally offered the waiver form in evidence, defense counsel opposed its introduction, stating:

I have only one objection, Your Honor, that he explain to the jury what that waiver is.

The trial judge advised defense counsel that he could clarify the matter on redirect, whereupon counsel responded “Okay,” and, after questioning the witness further, he stated: “Okay, I’ll agree that it can be entered.”

The record clearly demonstrates that the initial objection to the introduction of the waiver form was cured by defense counsel’s later acquiescence to its admission into evidence.

Defendants argue for the first time on appeal that the state’s questioning of defendant Michael Finley regarding his refusal to sign the “waiver of rights of an arrestee” form violated his due process rights under the fourteenth amendment of the United States Constitution, citing as authority the recent Supreme Court decision Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

We do not reach the merits of this contention. Article 841 of the Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless the defendant has made known to the court his objection and the grounds therefor. A new basis for an objection cannot be raised for the first time on appeal. State v. Marks and Jones, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976); State v, Forbes, 310 So.2d 569 (La.1975). In the instant case, the ground asserted on appeal as the basis of the trial objection is completely different from that urged at the time of the objection at trial. Since the present ground was not raised and ruled upon by the lower court, it will not be considered on appeal. Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendants contend the trial judge erred in denying the motion to sever and/or motion to withdraw as counsel on behalf of defendants Timothy Bindom and Leroy Scott filed by their attorney.

On the day of trial and after the jury had been selected and sworn, argument was heard on defendants’ written motion captioned and argued to the court as a “Motion to Withdraw as Counsel.” Defense counsel urged that his representation of all three defendants in the instant case created a conflict of interest inasmuch as one of the defendants had prior convictions and might be cross-examined thereon should he decide to take the stand.

We have held that joint representation does not suggest conflict of interest between several jointly represented defendants unless it has the potential of depriving an individual of the effective assistance of counsel at his trial. State ex rel. Thompson v. Henderson, 306 So.2d 713 (La.1975). The decision as to whether to allow an attorney who is competent and familiar with the case to withdraw as counsel of record is ordinarily a matter within the sound discretion of the trial judge. State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971).

In the instant case, all four defendants related virtually the same exculpatory version of the facts. We are unable to say that the mere fact that one co-defendant (Timothy Bindom) took the stand in his own behalf and that of his co-defendants, thereby exposing himself to cross-examination concerning a prior conviction, constituted a conflict of interest warranting a finding of abuse of discretion by the trial judge in denying the motion to withdraw as counsel of record.

Moreover, we note that even construing the motion as one to sever as argued by defendants in brief, this court has rejected in State v. Medlock, 297 So.2d 190 (La.1974) and State v. Smith, 283 So.2d 470 (La.1973) defendants’ contention that a joint trial of defendants with and without criminal records would prejudice the defendants without records and therefore warrant a severance. Furthermore, it is well established that the granting of a severance is within the discretion of the trial judge whose ruling on a motion for severance will not be disturbed in the absence of a clear abuse of discretion. State v. Medlock, supra; State v. Smith, supra.

We do not find that the trial judge’s ruling constituted an abuse of discretion. Accordingly, Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendants contend that the trial judge erred in allowing the state to question defendant Timothy Bindom concerning a prior conviction. The record reveals, however, that no objection was made by defense counsel contemporaneously with the questioning now assigned as error. La. Code Crim.P. art. 841 provides, and this court has consistently held, that an irregularity or error in the proceeding cannot be availed of after verdict unless it is objected to at the time of its occurrence. State v. Phanor, 325 So.2d 579 (La.1976); State v. Burgy, 320 So.2d 175 (La.1975).

In any event, we note that the questions propounded by the district attorney fully complied with the well-settled law of this state that, when an accused takes the stand in his own defense, evidence of a prior conviction is admissible for the purpose of impeaching his credibility. La.R.S. 15:495; State v. Hatch, 305 So.2d 497 (La.1974); State v. Williams, 304 So.2d 311 (La.1974); State v. Fallon, 290 So.2d 273 (La.1974). This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 4, 5, 6 AND 7

In these assignments of error, defendants contend the trial judge erred in denying their motion for a new trial based on the insufficiency of the evidence against them. In Assignments of Error Nos. 4 and 6, defendants complain that the verdicts rendered against them were contrary to the law and evidence and that there was no evidence to sustain their convictions. In Assignments of Error Nos. 5 and 7, defendants allege that their convictions were improperly based solely on circumstantial evidence. We find no substance in these contentions.

In criminal cases, the scope of this court’s appellate jurisdiction extends only to questions of law. La.Const. art. 5, § 5(C) (1974). Sufficiency of the evidence is a question of fact. State v. Gordon, 336 So.2d 793 (La.1976). It is well settled that where error is assigned to the refusal of a trial judge to grant a motion for a new trial grounded on the allegation that the verdict is contrary to the law and evidence, nothing is presented for our review. La.Code Crim.P. art. 858; State v. Jack, 332 So.2d 464 (La.1976). Only where it is alleged that there is no evidence of the crime or an essential element thereof is a reviewable error of law presented. State v. Woods, 327 So.2d 405 (La.1976).

With regard to convictions based solely on circumstantial evidence, La.R.S. 15:438 provides as follows:

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

In the instant case, the record reveals that Leroy Scott accompanied Finley and Bindom to the closed used ear lot late at night and waited for them to return to the automobile they were using. Scott was observed to slide down in the back seat of the car when he noticed Officer Smart’s police unit approaching. The officer testified that he saw Bindom and Finley standing in the rear of the deserted used car lot. Finley was observed pushing under a Chevrolet pickup truck what was later identified by the owner of the used car lot as a tire, tire rim and key taken without authorization from a nearby used Oldsmobile.

Our review of the record convinces us that there was some evidence of the crime for which defendants were found guilty by the jury. We are also satisfied that circumstantial evidence of the commission of simple burglary was adduced which, if accepted by the jury, would justify a jury in concluding that every reasonable hypothesis of innocence had been excluded. Accordingly, the trial judge did not err in denying defendants’ motion for a new trial. Assignments of Error Nos. 4, 5, 6 and 7 are without merit.

DECREE

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

      . Alfred Augustus was charged in the same information and tried jointly with defendants herein. He was found guilty as charged. The court suspended imposition of sentence and placed him on probation for three years. Augustus did not join in this appeal.


author: MARCUS, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Jimmy MIZELL.
    No. 58365.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Arthur F. Dumaine, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. W. Erwin, Dist. Atty., John N. Gallaspy, Second Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Jimmy Mizell was indicted by the grand jury for the parish of Washington for theft of cattle in violation of La.R.S. 14:67.1. After trial by jury, defendant was found guilty of attempted cattle theft and sentenced to serve eighteen months at hard labor. On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence. Finding merit in Assignments of Error Nos. 1 and 5, we reverse the conviction and sentence and remand the case for a new trial. Accordingly, we need not consider the remaining assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 5

Defendant contends the trial judge erred in refusing to grant him a recess in order to locate and secure the presence at trial of a key witness in his defense (Assignment of Error No. 1). Defendant additionally assigns as error the denial of his motion for a new trial, which motion reurged as error the ruling of the trial judge refusing a recess (Assignment of Error No. 5).

The record reflects that on November 5, 1973, defendant Jimmy Mizell and his brother Johnny Ray Mizell were charged in the same indictment for the theft .of a calf. After numerous delays, the state elected to try defendants separately. Johnny Ray Mi-zell pleaded guilty to the charge against him and was sentenced on September 17, 1974 to serve eighteen months at hard labor. Trial of the defendant Jimmy Mizell was set for January 7, 1975. On December 20, 1974, eighteen days prior to trial, counsel for defendant applied for the issuance of a subpoena for the attendance at trial of Johnny Ray Mizell, giving the address of the witness as Angola State Prison, Angola, Louisiana. The per curiam of the trial judge discloses that the subpoena was not issued by the Washington Parish Sheriff’s Office to the sheriff of West Feliciana Par-' ish until December 31, 1974.

On the morning of the trial, immediately after the jury was selected and sworn, defendant discovered that the subpoenaed witness, Johnny Ray Mizell, was not present in court and brought this fact to the court’s attention. The trial judge advised defendant that a return had been made indicating that the witness was not at Angola; he further stated that the witness had been transferred to the state prison at DeQuin-cey. Defendant, unaware of any such transfer, announced his intention to move for a recess in order to locate the essential witness in the defense’s case. The trial judge informed defendant that he would not grant a recess but would allow him to introduce testimony regarding the accuracy of the return. Defendant called the wife of the subpoenaed witness who testified that she had visited her husband at Angola on December 25,1974 (Christmas Day) and had also received a letter from him from Angola on the day before the trial. The letter was dated January 2, 1975. In support of the return, the state adduced the testimony of Ventrees Adams, chief deputy of the Washington Parish Sheriff’s Office. Adams testified that on the morning of the trial, he had received by mail from the sheriff of West Feliciana Parish the following return on the defendant’s subpoena:

Dear Sir: I am returning the papers unserved. After checking with authorities at the penitentiary, we found they had no one either working or serving time by the name of Johnny R. Mizell. Thanks. W. C. Percy, Jr., Sheriff.

Adams admitted that, subsequent to the receipt of this return, no attempt was made by the Washington Parish Sheriff’s Office to contact the authorities at Angola in an effort to determine the present whereabouts of the subpoenaed witness.

Documents filed by the defendant in connection with his motion for a new trial contradict the facts recited in the return from the sheriff of West Feliciana Parish. The penitentiary record of Johnny Ray Mi-zell (subpoenaed witness) dated January 9, 1975 and his affidavit executed on January 11, 1975 both indicate that the witness was incarcerated at Angola on the date of defendant’s trial and that he had been continuously confined there, without transfer, since his initial imprisonment on September 24,1974. The affidavit of the witness additionally contains an attestation that he was the sole perpetrator of the cattle theft for which' he and his brother, the defendant in this case, were jointly indicted by the grand jury. Had Johnny Ray Mizell been properly served and been present in court on January 7, 1975, his testimony to this effect would have corroborated that of the defendant who took the stand in his own behalf and swore that he had not taken part in the cattle theft.

The only question presented by these assignments of error is whether the state’s failure to serve a subpoena on an essential defense witness (a former co-defendant who had pleaded guilty to the offense), together with the refusal of the trial judge to grant a recess for the purpose of locating and securing the presence of this witness, effectively denied defendant his constitutional right to compulsory process.

The right of a person charged with a criminal offense to have compulsory process for obtaining witnesses in his favor is embodied both in the federal and state constitutions as well as in the statutory law of this state. U.S.Const. Amend. 6; La.Const. art. 1, § 16 (1974); La.Code Crim.P. art. 731. The right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Dennis, 250 La. 125, 194 So.2d 720 (1967). A defendant who wishes to have a subpoena issued for the attendance of a witness who is not residing in the parish where the trial or hearing is held shall file a written application with a supporting affidavit stating the address and parish wherein the witness resides. La. Code Crim.P. art. 740. The law directs that the sheriff of any parish in which the witness may be found or of the parish in which the proceeding is pending, shall serve the subpoena and make a return thereof without delay. La.Code Crim.P. art. 734. When a witness cannot be found, the sheriff must set out in his return every fact that in his opinion justifies the return. La.Code Crim.P. art. 736. A witness who is duly served and fails to appear may be attached by court order and brought to court immediately by either the sheriff of the parish from which the attachment is issued or by the sheriff of the parish wherein the witness is found. La.Code Crim.P. art. 737.

We have consistently held that the constitutional right to compulsory process for the attendance of witnesses is not to be trifled with. It is not a dead letter and must be enforced. State v. Bickham, 208 La. 1026, 24 So.2d 65 (1945); State v. Owens, 167 La. 1016, 120 So. 631 (1929). A return on a subpoena must show what steps have been taken to find an accused’s witnesses, what inquiries have been made, from whom, and where those inquiries were made. It is not enough that an officer assert that a witness cannot be found; he must state every fact which justifies this conclusion on his part. This done, the essential question is whether there has been on the part of the officer that diligent search without which the accused might be deprived of the right of compulsory process. State v. Scott, 110 La. 369, 34 So. 479 (1903). We have held that a sheriff in serving a subpoena may not rely on the account of others that a witness is not home or out of the jurisdiction without making further inquiry as to where the witness might be found or when he might return. State v. Bickham, supra; State v. Owens, supra.

The defendant in this case had a constitutional right to have a subpoena served on his brother Johnny Ray Mizell unless it was affirmatively shown that, after diligent search and inquiry, the witness could not be found. No such showing has been made in the instant case. Defendant made timely application for the subpoena of a key witness in his defense — a witness whose testimony would have exonerated defendant of guilt of the crime charged. He provided the sheriff of Washington Parish with what, to the best of his knowledge, was the correct address of the witness. The documents in the record suggest that the witness was, in fact, incarcerated at Angola on the date of the attempted service of the subpoena, despite the return of the sheriff of West Feliciana Parish indicating otherwise. Even had the witness been transferred to another penal institution as suggested by the trial judge, it is obvious that the court was well aware that the witness was confined in the custody of the state and would have been available to testify had a diligent inquiry and investigation into his whereabouts been undertaken. Moreover, had the subpoena been issued without delay after application was made therefor on December 20, 1974, it is probable that defendant would have been apprised of the confusion over the witness’ whereabouts before the morning of trial and in time to rectify the situation.

Under the circumstances of this case, we are of the opinion that the sheriff’s return was either incorrect or inadequate thereby resulting in a denial of defendant’s right to compulsory process. Accordingly, we find error in the ruling of the trial judge refusing to grant a recess and denying defendant’s motion for a new trial based on this ruling.

DECREE

For the reasons assigned, the conviction and sentence are reversed and the case is remanded for a new trial in accordance with law.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents for the reasons assigned by the Chief Justice.

SANDERS, Chief Justice

(dissenting).

In my opinion, the trial judge properly denied the motion for a continuance. The case was called for trial and proceeded with no objection by the defendant or a request that the names of the witnesses be called. The defense made no complaint of the absence of a witness until after the jury had been selected. Hence, a continuance could not properly be granted. See LSA-C.Cr.P. Arts. 708, 761.

Article 708 of the Louisiana Code of Criminal Procedure provides in pertinent part:

“A continuance is the postponement of a scheduled trial or hearing and shall not be granted after the trial or hearing has commenced.”

The defense did not request a recess, that is, a temporary adjournment of the trial, and the judge did not rule on such a request. A defendant cannot validly urge such a motion for the first time on appeal. LSA-C.Cr.P. Art. 841; State v. Marks, La., 337 So.2d 1177 (1976); State v. Powell, La., 325 So.2d 791 (1976); State v. Forbes, La., 310 So.2d 569 (1975). Hence, the contention should be rejected on procedural grounds alone.

If, however, the oral motion for a continuance is treated as a motion for a recess, as the majority does, the trial judge could have properly overruled it.

The record makes clear that the defense did not use due diligence in securing the presence of the witness, known to be incarcerated in the state penal system. It is true that the defense wrote a letter to the Clerk of Court requesting the issuance of a regular subpoena. However, the issuance of such a subpoena to a prisoner in the custody of the Louisiana Department of Corrections in another parish is futile. The production of a prisoner for testimony requires a writ of habeas corpus ad testificandum directed to the warden of the penal institution. See LSA-C.Cr.P. Art. 351; State v. Cortez, 241 La. 610, 129 So.2d 792 (1961); 97 C.J.S. Witnesses § 30, p. 415.

Secondly, the defense made no certification of the facts to which the witness would testify until the filing of the motion for a new trial. At that time, the trial judge found that the facts attested contradicted prior statements of the same witness. In his Per Curiam, the trial judge states that the proffered testimony is unlikely to change the verdict.

Thirdly, if the motion for continuance is now treated as a motion for a recess, it must consistently be treated as a motion for a recess of an indefinite duration. The record reflects that the defense moved that “this matter be continued until such time as this witness who is essential to the defense can be brought before this court.” Tr. 28-29.

At the time the defense made the motion, the jury had been impanelled and the witnesses sequestered. A recess of indefinite duration should not be granted at this stage of the trial. Moreover, a specific recess of more than a few hours should be granted only for the most compelling reasons. The granting of a motion for a specific recess rests within the sound discretion of the trial judge. See State v. Hines, La., 311 So.2d 871 (1975).

Finally, in support of the trial judge’s discretion, it must also be noted that the defendant had illegally obstructed the trial on several prior occasions. When the case came on for trial on March 4, 1974, the defendant failed to appear, and the court ordered that a warrant issue for his attachment. When the case came on for trial on May 6, 1974, the defendant was still at large, and the case had to be continued. On November 6, 1974, the defendant again did not appear for trial, and the case was continued. On November 7, 1974, the defendant was brought before the court, sentenced to ten days imprisonment for contempt and his bond was increased to $25,000.00.

Under all circumstances, I conclude that the trial judge correctly overruled the motion.

For the reasons assigned, I respectfully dissent.

      . At trial and in brief to this court, defendant refers to his motion as one for a continuance. Inasmuch as the trial had already begun with the calling of the first juror, as provided in La.Code Crim.P. art. 761, a continuance could no longer be granted. La.Code Crim.P. art. 708; State v. Washington, 272 So.2d 355 (La.1973). The motion then is more properly a motion for a recess, a temporary adjournment of a trial after it has commenced, which need not be in writing or comply with the formal requisites of a motion for a continuance. La. Code Crim.P. art. 708; State v. Hines, 311 So.2d 871 (La.1975). Accordingly, we treat the motion discussed herein as though it had been properly denominated by defendant.

      . While La.Code Crim.P. art. 351 may be authority for obtaining the presence of an incarcerated person as a witness at trial through the procedural device of a writ of habeas corpus, there is no indication that this is the only device which may be used, nor does the Code specifically provide for a writ of habeas corpus ad testificandum. In any event, the state by its issuance, service, and return on the subpoena for the attendance of the imprisoned witness has in effect acquiesced in the use of the subpoena procedure in the instant case. Moreover, inasmuch as the defendant’s right to compulsory process is a constitutional one, the trial judge should have granted defendant’s motion for a recess in order to secure the presence of defendant’s witness for reasons more fully explained hereafter.


text:
    STATE of Louisiana v. Guy Michael WIENTJES, a/k/a Gary Wientjes.
    No. 58369.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Ollie Bernard Boddie, Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On December 16, 1975, Guy Michael Wientjes, a/k/a Gary Wientjes, was indicted for distribution of methamphetamine as a person at least eighteen years of age to a person under eighteen years of age who was at least three years his junior, in violation of La. R.S. 40:968 and La. R.S. 40:981(C). Wientjes was convicted by a twelve member jury and sentenced to serve ten years at hard labor.

On appeal defendant relies on three of four assigned errors for reversal of his conviction and sentence. Assignment of error number three, having been neither briefed nor argued before this Court, is considered abandoned. State v. Phillips, 337 So.2d 1157 (La.1976). Defendant in his brief attempts to raise additional grounds for relief not assigned as errors, contrary to the express requirements of Louisiana Code of Criminal Procedure Articles 844 and 920. These arguments, unaccompanied by proper assignments of error or errors discoverable by mere inspection of the pleadings and proceedings, will not be considered. State v. Williams, 325 So.2d 582 (La.1976).

The charges against the defendant, and his subsequent conviction, were based on his sale, on September 28, 1975, of three grams of methamphetamine to Ms. Annette Wan-er, a minor. As part of an investigation of illicit drug distribution in the Shreveport area, conducted jointly by the Shreveport Police Department and the Louisiana State Police, undercover agents had arranged to purchase from Ms. Waner a quantity of methamphetamine. Ms. Waner, unaware that she was dealing with undercover police agents, was to buy the drugs from her supplier and in turn sell them to the agents at a profit.

After a series of telephone conversations between the agents and Ms. Waner, and between Ms. Waner and her supplier, later determined to be the defendant, it was agreed that the transactions would be consummated at approximately six p. m. on September 28, 1975, at Ms. Waner’s place of employment, the Don Theater in downtown Shreveport.

Undercover agents stationed outside the theater observed the defendant’s arrival at the theater at the appointed time. One of them, with the aid of binoculars witnessed the defendant exchange objects with Ms. Waner — the latter receiving the drugs and giving the defendant seventy five dollars. The exchange was also witnessed by an informant who was working with the police in the investigation. In addition to the testimony of several agents, identifying the defendant and describing their observations of the transaction, Ms. Waner testified that the defendant sold to her three grams of methamphetamine on the evening of September 28, 1975.

ASSIGNMENT OF ERROR NO. 1

After recordation of the verdict of guilty, defendant filed a motion in arrest of judgment alleging that the offense charged in the indictment was not punishable under a valid statute, in that La. R.S. 40:981(C) does not define an offense, but rather provides for the enhancement of punishment where certain controlled dangerous substances are distributed by a person at least eighteen years of age to a person under eighteen years of age and at least three years his junior. Defendant assigns as error the trial judge’s denial of this motion.

Defendant was not prosecuted simply for having violated La. R.S. 40:981(C). The indictment also specifically cited La. R.S. 40:968 as having been violated by the defendant, and further alleged that the defendant, “a person at least eighteen years of age, * * * ¿id knowingly and intentionally distribute * * * Methamphetamine, to a person under eighteen years of age who [was] at least, three years his junior, * * *(Emphasis supplied.)

Louisiana Code of Criminal Procedure Article 464, according to Comment (a) thereto, governs the nature and content of indictments charging violations of the state narcotics laws. It provides that an indictment

“* * * [S]hall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state * * * the official or customary citation of the statute which the defendant is alleged to have violated. * * * ”

The indictment in the present case sufficiently complied with the requirements of this article, and it clearly charged the defendant with an offense punishable under a valid statute.

The trial judge’s denial of the motion in arrest of judgment was correct. There is no merit in defendant’s first assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in failing to grant his motion for a new trial insofar as it was based on the following claims:

1. The trial judge improperly admitted as evidence hearsay testimony by Annette Waner; and

2. The trial judge improperly admitted evidence alleged by the State to be methamphetamine for which a proper chain of custody was not established.

In his brief, defendant argues that Annette Waner, who purchased three grams of methamphetamine from the defendant on the evening of September 28, 1975, should not have been allowed to give hearsay testimony concerning alleged telephone conversations with the defendant under the res gestae exception to the hearsay ban, because the conversations occurred several hours prior to the transfer of the methamphetamine, and did not form, in connection with the crime, a single continuous transaction.

Ms. Waner, testifying in behalf of the State, explained that she had three telephone conversations with the accused during the afternoon of September 28, 1975. The first of these conversations occurred at approximately 12:30 p. m. Ms. Waner called the defendant and asked if he could supply her with three grams of methamphetamine. Wientjes asked Ms. Waner to call back later. She did, and was informed that he could deliver the drugs as requested at a price of twenty-five dollars per gram. Later that afternoon, after the undercover agents arrived at the theater to make the purchase from Ms. Waner, she again called the defendant, informing him that her “connection” had arrived, that she had the money, and asking him to deliver the drugs.

At no time during the course of Ms. Wan-er’s testimony did the defendant object to its admission on the basis of its hearsay character.

According to Louisiana Code of Criminal Procedure Article 841 “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. * * * ” Because there was no contemporaneous objection to the admission of Ms. Waner’s testimony, defendant’s assignment of error insofar as it is predicated on the supposed erroneous introduction of hearsay testimony, presents nothing for this Court to review. State v. Brown, 329 So.2d 701 (La.1976); State v. Charles, 326 So.2d 335 (La.1976); State v. Phanor, 325 So.2d 579 (La.1976).

Defendant also contends a new trial should have been ordered because the State failed to establish a proper chain of custody as a predicate to the introduction of the methamphetamine alleged to have been sold by him to Ms. Waner, and by her to the undercover agents.

Before offering the drugs into evidence the State adduced substantial testimony to the effect that they were the same drugs delivered by Wientjes to Ms. Waner; that Ms. Waner had, in turn, sold them to the undercover agents; that they had been placed by the police in a sealed envelope and delivered to the Northwestern Louisiana Criminalistics Laboratory for analysis; and that chemical analysis confirmed that they were in fact methamphetamine, a controlled dangerous substance, the distribution of which is proscribed by La. R.S. 40:968.

The State clearly established that it was more probable than not that the drugs introduced at trial were those sold by the defendant to Annette Waner. Such a showing justifies the trial judge’s decision to admit the drugs into evidence. State v. Keys, 328 So.2d 154 (La.1976); State v. Flood, 301 So.2d 637 (La.1974); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

For the foregoing reasons, defendant’s second assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error defendant makes the general allegation that the trial court erred in admitting into evidence documents which were irrelevant and for which no proper foundation had been laid.

The only documents introduced into evidence by the State over defense objection were certified copies of Ms. Waner’s application for a driver’s license, Ms. Waner’s and the defendant’s driver’s licenses, and their birth certificates. At trial the defendant insisted to no avail that the custodian of the original documents must testify as to their authenticity. Presumably, defendant’s vague assertion in his fourth assignment of error that documents were admitted without proper foundation refers to the failure of the trial judge to require that the custodians of the documents personally verify their authenticity at trial.

However, litigants have been relieved of this burden by statute in Louisiana.

La. R.S. 13:3711 provides:

“Copies of any books, records, papers or other documents of any of the executive and administrative departments, boards, and agencies of this state, and copies of any books, records, papers, or other documents of any of the political corporations, bodies politic, boards, departments and agencies of this state and the parishes and municipalities thereof, when certified as being true copies by the official, officer or employee in whose custody they may be, shall be admitted in evidence in all courts of this state, equally with the originals of such books, records, papers or other documents.”

La. R.S. 13:3712, in pertinent part, provides:

“A. Certified copies of books, records, papers or other documents provided in R.S. 13:3711 shall be prima facie proof of the existence and contents of the originals and of any act, transactions or occurrence or event as a memorandum of which said books, records, papers or documents were kept or made.

We have found no criminal cases in which these statutes alone have been relied upon for introduction of documentary evidence. Cf. State v. Moity, 245 La. 546, 159 So.2d 149 (1963). However, it is well established that certified copies of state hospital records may be introduced in criminal proceedings under a similar statute, La. R.S. 13:3714, without violation of the constitutional guarantee of an accused to be confronted by the witnesses against him. State v. Trahan, 332 So.2d 218 (La.1976); State v. O’Brien, 255 La. 704, 232 So.2d 484 (1970). We note that La. R.S. 13:3714 specifically provides “that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.” Undoubtedly, a defendant would have this right even in the absence of such a provision and does have this right in the event documents are introduced, as here, under La. R.S. 13:3711-12. Since defendant in the instant case asserts no objection to the admissibility of the documents other than the failure of their custodians to appear in court, and this requirement has been dispensed with legislatively for purposes of making prima facie proof of the existence and contents of documents in custody of state agencies, we find no merit in defendant’s fourth assignment of error.

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


text:
    STATE of Louisiana v. James BANKS.
    No. 58374.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On July 10, 1975, the Orleans Parish Grand Jury indicted defendant, James Banks, for possession of heroin with the intent to distribute. La.R.S. 40:966. A motion to suppress evidence filed on defendant’s behalf was denied on September 19, 1975, following a hearing. Defendant waived his right to a trial by jury and was convicted in a bench trial of possession of heroin. He was subsequently sentenced as a multiple offender to serve fifteen years in the custody of the Department of Corrections. On appeal, defendant urges that the trial court erred in denying his motion to suppress evidence.

At approximately 2:30 a. m. on the morning of June 9, 1975, two New Orleans police detectives, Emmet Dupas and Joseph Waguespack, were patrolling an area on North Galvez Street which had been the site of two recent robberies. Upon observing the suspicious manner in which two men entered a lounge at the corner of North Galvez and St. Ann Streets, they parked their unmarked police vehicle at the intersection and set up surveillance of the lounge.

As the police officers watched, defendant walked toward them with two companions, Diane Campbell and Clarence Triplett. Officer Dupas saw defendant remove a large revolver and a brown object from his waistband, and called this activity to the attention of Officer Waguespack. Both officers observed defendant turn to Ms. Campbell and place the revolver in her purse; Dupas testified at the hearing on the motion to suppress that he also saw defendant transfer the brown object to Ms. Campbell’s purse. Ms. Campbell was promptly arrested for possession of a concealed weapon, La.R.S. 14:95, and a search of her purse produced a .38 caliber revolver and a brown paper bag containing thirty-one packets of heroin. Defendant and his companions were arrested for possession of narcotics.

Under the facts and circumstances of this case, the officers clearly had probable cause to arrest Ms. Campbell for possession of a concealed weapon, and the warrantless search of her purse incidental to that arrest was lawful. La.C.Cr.P. art. 213; State v. Gordon, 332 So.2d 262 (La.1976).

On appeal, defendant does not contest the validity of the search, but complains of the court’s refusal to compel the arresting officers to produce their police report at the hearing. Arguably, the judge’s rulings denying defendant access to this material were independent of his ruling denying the motion to suppress and consequently, defendant should have filed a separate assignment of error relating to this issue if he intended to present it for this Court’s review. La.C.Cr.P. arts. 844 and 920. Nevertheless, we will address the problem because it was the central issue contested at the hearing on the motion to suppress.

The theory of Banks’ defense was that Triplett had placed the paper bag of heroin in Diane Campbell’s purse before defendant handed her the revolver; Ms. Campbell testified to this effect at trial. Therefore, Officer Dupas’ testimony that he had seen defendant put a brown object, together with the revolver, in Ms. Campbell’s purse was hotly contested at the motion to suppress hearing. Officers Dupas and Wag-uespack were both questioned as to whether their police report prepared after the arrest related that defendant had transferred the bag to Ms. Campbell. Waguespack stated that he did not remember; Dupas .conjectured that this information was contained in the report since he presumed that it was complete and contained all the pertinent facts of the arrest. Defense counsel suggested that the police report would reflect that the packets of heroin were not wrapped in a bag but were loose in the purse, and requested the court to compel its production either for his examination or for an in camera inspection by the court. The request was denied.

Police reports are considered confidential, and generally the State may not be compelled to produce them for inspection. State v. Square, 257 La. 743, 244 So.2d 200, 220 (1971). However, we have held that a defendant may obtain a copy of a police report if it is established that there is an inconsistency between the officer’s testimony at trial and his report, or when the officer’s testimony at trial is from his report rather than from his memory. State v. Bolton, 337 So.2d 446 (La.1976); State v. Monroe, 329 So.2d 193 (La.1976); State v. Foret, 315 So.2d 278 (La.1975). But whether these rules govern pre-trial discovery is an unsettled question. See, State v. Babin, 319 So.2d 367, 372 (La.1975) (Tate, J., concurring); G. Pugh, Louisiana Evidence Law, 686-88 (1974).

In any event, both exceptions are inapplicable here. Officer Dupas testified that he had read the report shortly before the hearing, but that it served only to refresh his memory, and both officers stated that they were recounting the events of June 9, 1975 from their present recollection of them. Neither officer consulted the report at any time during their testimony. A defendant is not entitled to a copy of the report where the witness’ testimony is the product of present memory refreshed rather than past recollection recorded. State v. Foret, supra.

Defendant argues, however, that conflicting testimony by the two officers indicates that one of the officers must have been testifying inconsistently with the facts stated in the police report, which both helped to prepare. He claims that the officers differed in their statements on three subjects: whether the paper bag was mentioned in the police report; whether the bag was open in Ms. Campbell’s purse; and whether the heroin was found loose in the purse or inside the paper bag. Our review of the testimony reveals that both officers agreed the bag was closed and the heroin was wrapped inside the bag rather than loosely contained in the purse. Furthermore, we find no genuine conflict in the officers’ testimony relative to the contents of the police report; Dupas stated, after displaying some uncertainty on this point, that he believed the report referred to the brown paper bag; Waguespack merely stated that he could not remember whether the bag was mentioned in the report. This does not demonstrate any inconsistency between their testimony and the facts related in the police report. Consequently, we hold that the trial judge correctly refused to order the witnesses to produce their report.

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

DIXON, J., concurs.