text:
    STATE of Louisiana v. Darrell ALEXANDER.
    Nos. 57684, 57685.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearings Denied Oct. 13,1976.

      Lucius A. Hornsby, Jr., Lafayette, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jefferson J. Moss, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

In 1971 defendant was convicted of the armed robberies of two convenience stores in Lafayette, Louisiana. He was sentenced to serve twenty-five years in the custody of the Department of Corrections. He appeals to this court raising two assignments of error, both relating to the green money bag labeled “Phil-A-Sak No. 12.”

Defendant contends the bag was seized during a search of his residence allegedly conducted without a valid search warrant. The bag was found in the garage next to defendant’s residence at 245 Pearl Street in Lafayette, although the search warrant and the application therefor refer to a residence at 243 Pearl Street. Defendant’s attack on the warrant is based on this discrepancy.

When police arrested defendant’s alleged coparticipant in the robberies, Tommy Alexander, he told them they would find money and weapons from the robbery in the garage of defendant’s residence at 243 Pearl Street. This information was submitted to the trial court, and a warrant issued for the “premises known as 243 Pearl Street — Lafayette, Louisiana, owned by the Reverend Edwin Alexander and occupied by Darrell Alexander." The police found the money bag in an old coat hanging in the garage of defendant’s residence.

The following testimony was given by witnesses at the motion to suppress.

Officer Lester Viator: Besides knowing the municipal number of defendant’s residence as given by Tommy Alexander, the officers had a description of the house they were to search and knew it was near a church. When they arrived, they saw the house did not have a municipal number on display, so they asked defendant's father if they were at 243 Pearl Street and he responded affirmatively. They searched the garage and found the bag.

The Reverend Edwin Alexander: The Reverend’s house is at 245 Pearl Street where he lives with his daughter, her two children arid his son, the defendant in this case. When the officers arrived, they did not speak to the Reverend, they did not show him a warrant, they in no way indicated what they were looking for, and they did not give him a receipt for anything they may have found. He did not give them permission to search his son’s bedroom inside the house.

Verna Alexander: Ms. Alexander lives at the home with her father, Reverend Alexander. When she arrived home, the police were already searching the garage. They would not speak to her or to her father other than to ask him whether they could search defendant’s bedroom inside the house. Reverend Alexander give them permission to search the bedroom, saying “there was nothing in there.” The police found nothing during their search of the bedroom. She did not see whether police found anything during their search of the garage, but they did not give her a receipt for anything they may have found.

At trial, Verna Alexander testified that the Reverend's house is “to the side and behind” the church at which he preaches. The church bears the number 245, and it faces Pearl Street. There was no number on the house itself.

In his first assignment of error, defendant relies on this court’s opinion in State v. Lee, 247 La. 553, 172 So.2d 678 (1965), to argue that the warrant under which the house was search was invalid.

In Lee, the sworn affidavit upon which the search warrant was issued referred to a residence at 2127 Bienville Street in New Orleans. But when officers arrived at the house which they later searched, they found it had a different municipal number than that cited in the warrant and the underlying affidavit. They telephoned the trial court who had issued the warrant and informed him the number should read 2123 rather than 2127 Bienville Street. The judge approved a change in the warrant.

For the following cited reasons we held the warrant invalid:

“ . . . ‘Search warrants are of such grave importance which they may be amended, if at all, only by the officer issuing them, and then only in conformity with the affidavits or depositions on which they are based. Thus, a warrant is invalid if it is amended by the executing officers, even on the consent of the issuing officer, or on a telephone communication from him. Moreover, the issuing officer cannot amend the warrant unless the affidavit itself is so amended as to conform to the proposed change or unless the original affiant performs some corporal act which would constitute an oath. * # * t
. ‘There is a valid reason for such rule as it has been established that when a judicial officer issues a warrant, he does so after a determination of probable cause, and is presumed to have examined the affidavits, supporting evidence and complied with all the prerequisites of the mandates of the enacted laws and constitutional authority. To permit the modification of a writ, after it has left the possessive jurisdiction of the judicial officer, and allow a third person to make amendments or corrections thereto, would destroy the spirit and intent of the constitutional and legal import of the instrument. Suffice it to say, that the majority rule of law concerning amendments to search warrants is thus succinctly expressed: Only a judicial officer may issue a search warrant, and the issuance thereof is a judicial function. No one else may have the right to alter, modify, or correct such writ, as in so doing, the judicial authority is usurped.’ ” 172 So.2d 678, 680.

And we held:

“ . . . The warrant directed the search of a specific, incorrect municipal number. Under no circumstances could it be held that an officer with such a warrant could take it upon himself to enter and search premises located at another number.” 172 So.2d 678, 682.

To the contrary, the officers in the case before us executed the search in accordance with the description on the face of the warrant. They had no reason to believe the municipal number of the house they searched was other than 243 Pearl Street. Furthermore, when they arrived they confirmed through Reverend Alexander himself that the address was 243 Pearl Street, that the house was the Reverend’s and that defendant resided there.

This is not a case where a police officer has taken it upon himself to enter and search a premises located at a municipal number not included in the warrant, and defendant’s reliance on State v. Lee, supra, is misplaced.

Nor does defendant have a complaint that the municipal number was later discovered to be other than 243 Pearl Street. The house itself did not display a number from which the exact municipal number could have been discerned; thus it could logically be concluded that the house would have a municipal number close to but different than that assigned to the church. The additional information that the house was owned by Reverend Alexander and that defendant resided there supplied ample specificity in a town the size of Lafayette.

This assignment lacks merit.

In defendant’s brief to this court his second assignment of error contends “there was no connection between the materials recovered and defendant . it can be ascertained that there is no way wherein the ownership of any old coats hanging in the garage belonged to defendant.”

We note initially that once the bag was properly admitted into evidence, it was for the jury to determine whether there was adequate proof to connect it with defendant. We may not review this jury question (Art. 5, § 5(C), La.Const.1974); but we may review the trial court’s determination that an adequate foundation had been laid for admitting the bag into evidence. We consider defendant’s objection in brief as an objection to the evidentiary foundation for the admission of the money bag.

The record before us shows that one of the robberies occurred at Phil-A-Sak Store No. 12. It further shows that after taking money, the robbers told the victims to give them two bottles of whisky and to “put it in a bag.” There was no showing that this bag was the same bag later discovered in defendant’s garage.

However, when the State offered the bag into evidence at trial, defendant made only the following objection:

“MR. BEARD: ... I will object on the basis that the search warrant did not apply to the garage and that the bag is— THE COURT: I’ll overrule your objection.
MR. BEARD: To which said ruling, Your Honor, I respectfully object, reserve a bill of exception, making part and parcel thereof the testimony, the State Exhibit No. 2 and all testimony in connection therewith by Det. Broussard and Your Honor’s ruling.”

This is not an objection to the evidentiary foundation for the admission of the bag, or even to a purported lack of connection between the bag and defendant. Thus, defendant may not raise this ground on appeal. State v. McCormick, 272 So.2d 692 (La.1973); State v. Evans, 249 La. 861, 192 So.2d 103 (1966).

The case before us demonstrates well the reason for this rule. Had he made known at trial the ground he seeks to raise on appeal, any missing link in the evidentiary foundation might have been supplied.

This assignment lacks merit.

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

      . Though the State explained that the discrepancy in the municipal number was merely typographical and that the house searched was indeed the house referred to in the warrant and in the application, that evidence was not properly before the court. Thus it was not considered.


source: Caselaw Access Project

author: DENNIS, Justice. SANDERS, Chief Justice TATE, DIXON and DENNIS, Justices SANDERS, C. J.,

license: Public Domain

text:
    STATE of Louisiana v. James L. WELCH.
    No. 57687.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 15, 1976.

      James D. Sparks, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The crucial question in this case is whether the State failed to demonstrate satisfactorily the use of procedural safeguards in the interrogation of a mentally retarded, semi-literate defendant, as required by Article I, § 13 of the Louisiana Constitution of 1974 and the Fifth Amendment to the United States Constitution as applicable to the states under the Fourteenth Amendment and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and thereby required the trial court to suppress any incriminating statement elicited by the police during the interrogation.

On August 28, 1975, two black youths committed an armed robbery at a convenience store in Monroe. Despite diligent investigation for almost a week police officers were unable to obtain evidence pointing to a suspect in the case. But on the afternoon of September 3, 1975, one of the officers received a telephone message from an informant that a certain juvenile had been involved in the crime. During an interview this juvenile implicated the defendant, James Welch.

At 8:00 a. m. the next morning the officers went to the house where defendant lived with his parents. They advised the defendant and his mother that he was a suspect in an armed robbery investigation. Upon the policemen’s request, Mrs. Welch consented to a search of the house, during which they found no evidence related to the offense. The defendant then voluntarily accompanied the officers to the station for questioning. O’Neal Welch, the defendant’s father, who had been called from his job by his wife, arrived at police headquarters about the same time as the officers and his son.

As a result of statements made by the defendant during interrogation at the police station he was charged with the crime of armed robbery. La.R.S. 14:64. Defense counsel moved to suppress these statements as having been unconstitutionally obtained, but the trial court overruled his motion. After trial, the jury found the defendant “[g]uilty as Charged with the Request of Liniecy [sic] due to Instability of the Defendant.” The trial judge conducted a pre-sentence investigation and sentenced defendant to fifteen years at hard labor.

Defendant filed an appeal based on ten assignments of error. We find merit in his first two assignments, in which he contends that the motion to suppress should have been granted and that his confession should not have been introduced at trial. Consequently, we must reverse his sentence and conviction, and remand the case to the district court for a new trial.

On the day of the interrogation the defendant, James Welch, was nineteen years old, but his intellectual capacity was well below that of a normal person his age. The record includes an “Intellectual Evaluation” prepared by a psychologist who administered four intelligence and achievement tests to defendant. The evaluation states:

“On the WAIS [Wechsler Adult Intelligence Scale], Mr. Welch obtained a Verbal IQ of 73, a Performance IQ of 82 and a Pull Scale IQ of 76. This would place his level of current intellectual functioning within the borderline retardation range. A PPVT [Peabody Picture Vocabulary Test] IQ of 65 tends to substantiate the indications of the WAIS. The WRAT [Wide Range Achievement Test] indicates Mr. Welch’s academic achievement in the area of reading, spelling and arithmetic to be similar to that of a second grader.
“The Bender Visual-Motor Gestalt Test suggests that Mr. Welch may have a neurological dysfunction within that area of the brain which controls visual-motor coordination. This may have contributed to his present level of intellectual functioning.
“Mr. Welch seems to be able to handle simple routine tasks adequately. As the task become more abstract and intellectual he probably encounters difficulty in coping with the task and understanding it. Various portions of the examination, particularly portions of the WAIS, indicated that he experiences difficulty changing from one thought to another quickly. He also tends to be easily distracted when performing intellectual tasks. * * * ”

The police officers, of course, did not have knowledge of the test data contained in the evaluation, but they admitted to having been informed before the interrogation by the defendant and his father that James Welch “wasn’t too smart” and was not “in complete control of his faculties.” His deficiency of intellect and education were borne out during the motion to suppress hearing by his inability to read most of the pertinent language in the police waiver form, including the words “understand,” “undersigned,” and “remain silent.”

The interrogation was conducted by the police officers in two sessions. During the first session, in which the defendant’s father, O’Neal Welch, was present, the defendant initially refused to admit involvement in the crime. However, after being informed repeatedly by the officers that a confederate had confessed implicating him, after being shown that the alleged accomplice was present at police headquarters, and after the officers denied his father’s request that he be allowed to confer with an attorney, the defendant finally blurted out “I done it,” and proceeded to make other incriminating statements. The first interview session was then interrupted and the officers left to arrest another youth suspected of having participated in the armed robbery. Approximately one hour later the officers returned and during a second interrogation session, at which defendant’s father was not present, they obtained from defendant a signed written waiver of his constitutional rights and a taped confession implicating him in the robbery. It is undisputed that no record was made of the first interrogation session or any conversation with the defendant other than that made during the second interrogation session.

According to the testimony of one of the police officers at the motion to suppress hearing, the defendant was “advised of his rights” at his home that morning, and at the police station before the first interrogation: “[h]e was again advised of his rights — he was advised that he was not under arrest at the present time, but that any incriminating statements which he might make could lead to his arrest. And he was advised of his rights.” This officer stated that when they were almost through with the interview, and before the defendant had incriminated himself, the father advised them that he thought he should get his son an attorney. According to this officer the other policeman replied to the father that the defendant was of full age and should be allowed to decide what he wanted to do; and after this exchange the defendant said, “I done it.”

The second officer involved in the case testified to substantially the same facts, except that he stated defendant’s father, O’Neal Welch, “had objections about — at that time [the beginning of the first interrogation] about him even talking — -something about he wanted his son to have a lawyer.” Furthermore, he testified that on two or perhaps three occasions during the interrogation the defendant’s father interrupted and persistently asked that the interview be stopped to allow him to get an attorney for his son.

The defendant’s father, O’Neal Welch, testified that he asked one of the interrogating officers for permission to get his son an attorney almost immediately upon arriving at the station. The officer, however, simply walked away without answering, according to the father. Later he was invited to come into the interrogation room with his son. When asked what happened after he entered the interrogation room, Mr. Welch testified:

“Q. What happened then?
“A. Detective Brown advised him [the defendant] he had a right not to talk if he didn’t want to. The other rights, I can’t recall them, but he didn’t offer him the right to have a lawyer.
“Q. He did what?
“A. Didn’t offer him the right to a lawyer.
“Q. Didn’t say anything about an attorney?
“A. No sir, no.” (Emphasis added).

Mr. Welch further testified that pressure tactics were used on his son by the officers such as hollering at him, promising to reduce the charge below armed robbery, telling him a “boy” who cooperated in another case got two years, whereas one who didn’t got fifteen years, and threatening the defendant that if he didn’t cooperate “I will go all out to get you” and “to put all this rap on you, let you carry it by yourself.” The father testified that he asked about six times or more to be allowed to get a lawyer for his son but was refused each time. He further testified that the manner and demeanor of the officers frightened both him and the defendant who started shaking. After this Mr. Welch testified his son started confessing to the crime in compliance with the officers’ demands.

James Welch, the defendant, testified he indicated to the police officers that he wanted an attorney by shaking his head when his father asked them to stop and let him employ one. He stated that he and his father started to get up and go, apparently to see an attorney, but the officers ignored their wishes and began to ask the defendant more questions. When asked if the defendant nodded his head, one officer replied “[n]o Sir, not to my knowledge, he did not.” The other officer testified definitely that the defendant did not nod his head at this time. O’Neal Welch was not asked by either counsel whether his son nodded assent while the father requested assistance of counsel.

The defendant was never asked by either defense counsel or the prosecuting attorney whether the officers had explained to him before the first interrogation session his rights to an attorney or to stop the interview at any stage of the process. He did admit that he signed the waiver of rights form during the second interrogation session. But he stated he did not understand all of the form and that he gave his statements to the police because he was scared.

We find it very significant that in rebuttal the State called just one of the interrogating officers back to the stand, and that he was only asked to identify the tape recording of the defendant’s statement made during the second interrogation session. The beginning portion of the tape was played containing the defendant’s affirmative one word responses to somewhat elaborate questions asking whether he understood and waived his constitutional rights during the second interrogation session. The officer was not asked, however, whether it was true, as O’Neal Welch testified, that the defendant was not informed of his right to an attorney before the first interrogation session. Nor, was the officer asked whether his terse statement that the defendant had been “advised of his rights” at the Welch house meant that defendant was specifically told that he had the right to the assistance of an attorney.

Article I, § 13, Louisiana Constitution (1974) provides:

“When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

Louisiana thereby incorporated in its constitution the right of an accused to be given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts, September 1 — 7, 1973, Vol. XIII pp. 68-112, Vol. XIV pp. 1-51; Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1 (1974).

In Miranda, the United States Supreme Court briefly summarized its holding:

“[T]he prosecution may not use statements, whether exculpatory or inculpato-ry, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." Miranda v. Arizona, 384 U.S. at 444-45, 86 S.Ct. at 1612, 16 L.Ed.2d at 906-07.

Furthermore, the high court held that the Fifth and Fourteenth Amendments place a “heavy burden” on the state to demonstrate compliance with these warnings:

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. * * * This Court has always set high standards of proof for the waiver of constitutional rights * * and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” Miranda v. Arizona, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724 (citations omitted).

In his per curiam to the assignment of error dealing with the motion to suppress the trial judge, in part, stated:

“At the hearing on the motion, testimony revealed that the defendant was advised of his rights on at least three occasions prior to the taking of the statement in question. Although the defense was apparently attempting to contend that the accused did not have the mental ability to understand, his conduct in the courtroom clearly indicated the contrary. Taking special note of his conduct, the Court observed that he was able to understand questions of both attorneys and to respond intelligently.
“The defendant’s father was invited by the officers into the interrogation room, where the defendant was questioned. Apparently on one or more occasions the father mentioned getting an attorney; however, his son never concurred in this or, at least, never indicated to the officers his concurrence. (The defendant did testify to, on one occasion in the hallway, shaking his head in concurrence toward his father. This gesture, however, was obscure and, if it occurred, was apparently not intended to be seen by the officers.) Later, after an oral statement was taken, there was a delay of nearly an hour before the recorded statement in question was taken. No effort was made by the father to get an attorney during this time and none was requested by the defendant.”

In reaching these conclusions the trial court clearly did not place a “heavy burden” on the State to prove that the defendant knowingly and intelligently waived his right to retained or appointed counsel before the first interrogation session as required by both Miranda and our State constitution. The routine testimony by an officer that the accused was “advised of his rights” does not fulfill this requirement, particularly in the instant case where a third person who was present at a time the defendant was “advised of his rights” testified definitely, repeatedly and without contradiction that the defendant was not advised of his right to the assistance of counsel. Accordingly, the prosecution in this case should not have been allowed to use statements stemming from the first interrogation of the defendant.

Although it is unnecessary to reach the issue, the writer of this opinion also has doubt whether, under the circumstances, the refusal by the police to honor the request of the parent of a mentally retarded, semi-literate defendant to allow the defendant to confer with a lawyer during the course of the interrogation was in keeping with the requirements of Article I, § 13, Louisiana Constitution (1974) and Miranda. The mere fact that he was nineteen years of age did not entitle the policemen to treat this particular defendant as if he were an adult possessing intelligence and education comparable to their own. Interrogating officers are entitled to rely upon reasonable appearances of understanding and consent, but they should be mindful that the system of warnings and cautions required by Article I, § 13 and Miranda are designed to assure that the waiver of any constitutional right protected thereby is a voluntary, knowing and intelligent waiver. Therefore, since the officers in the instant case were aware of the diminished intellect of the defendant, and since his father was present, this writer considers that it would have been more reasonable for them to assume that the child-like defendant, who probably was accustomed to reliance upon his father’s guidance, concurred in his father’s request. Since the evidence indicates the defendant may not have been advised of his right to a lawyer and because his father’s request was summarily denied, I do not. think it reasonable for the officers to expect this particular defendant suddenly to become an articulate and forceful advocate for his own constitutional rights. Under the circumstances here, it is my view the officers should have honored the father’s request for the assistance of counsel, or, at least, they should have taken the time to ask the defendant directly and carefully if he wanted to continue the interrogation without the assistance of a lawyer.

At the motion to suppress hearing, the State chose to ignore its failure to demonstrate clearly the lack of a voluntary, knowing and intelligent waiver of the right to counsel prior to the first interrogation session. Instead, it relied solely upon the signed waiver form and the tape recorded waiver obtained from defendant during the second interrogation session. However these waivers followed the first interrogation session during which the officers obtained an incriminating statement that we have found the prosecution should not have been allowed to use. The two interrogation sessions were separated only by one hour during which the defendant was placed in a jail cell isolated from his parents, friends and counsel.

When a defendant urges suppression of an inculpatory statement given subsequent to a prior inculpatory statement that is in inadmissible because it is not free and voluntary or because the Miranda directives were not followed in conducting interrogation leading to the initial confession, the proper inquiry is whether the conditions that rendered the earlier confession inadmissible carried over to invalidate the subsequent one. Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968); Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); Randall v. Estelle, 492 F.2d 118 (5th Cir. 1974). The intervening warning informing defendant of his right to the assistance of counsel, coming as it did after the first interrogation process, rather than at its beginning, and after a request for counsel and cessation of the first interrogation process by his father had been denied, could scarcely serve sufficiently efficacious purposes when only one hour had passed before defendant, alone and officially under arrest, was asked to repeat the incriminating statement to the same officers who had conducted the first interrogation. The second confession was simply not sufficiently removed from the preceding statement in time or circumstances to eliminate the taint created by the first unlawful oral confession.

Accordingly, we conclude the trial court fell into error in refusing to grant the motion to suppress defendant’s taped inculpa-tory statement and in admitting it into evidence at trial.

For the reasons assigned, the ruling of the trial judge on the motion to suppress is reversed. Consequently, the conviction and sentence of the defendant are also set aside, and the case is remanded to the trial court for further proceedings, including a new trial, according to law and consistent with the views herein expressed.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, C. J., dissents and assigns written reasons.

SANDERS, Chief Justice

(dissenting).

The basic holding of the majority is set forth in the following language:

“[T]he trial court clearly did not place a ‘heavy burden’ on the State to prove that the defendant knowingly and intelligently waived his right to retained or appointed counsel before the first interrogation session as required by both Miranda and our State constitution. The routine testimony by an officer that the accused was ‘advised of his rights’ does not fulfill this requirement, particularly in the instant case where a third person who was present at a time the defendant was ‘advised of his rights’ testified definitely, repeatedly and without contradiction that the defendant was not advised of his right to the assistance of counsel. Accordingly, the prosecution in this case should not have been allowed to use statements stemming from the first interrogation of the defendant.”

I disagree with this holding, because, in my opinion, the record adequately establishes that the defendant was advised of his right to the assistance of counsel.

In the transcribed testimony designated for our consideration, Detective Warren Brown, one of the investigating officers, testified:

“Q. Okay. And, what did you do when you were in the Interrogation Room?
“A. I advised him of his rights when we . immediately after we got in the room, advised him.
“Q. Specific ... I mean, what what manner did you advise him of his rights? Did you . . . from memory, or . how did you do it?
“A. Yes sir, from memory.
“Q. And, specifically, what did you advise him at that point?
“A. I advised him that he didn’t have to talk with us, he didn’t have to make a statement. I advised him that any statement that he made could be used against him in Court. I advised him that he had a right to counsel, and that if he couldn’t afford counsel that the Court may appoint him one .
“Q. Did you
“A. I further advised him that he was not under arrest at the present time, but that any incriminating statements that he might make could lead to his arrest.
“Q. Did he acknowledge those rights to you?
“A. Yes.
“Q. In what manner did he acknowledge the rights?
“A. After each one, I’d ask him did he understand, and he would indicate ‘yes’.” [Tr. 165-166]

The other officer, Detective Don McCla-nahan, testified as follows:

“Q. What was done after you went back into the room and began your interrogation, what .
“A. Detective Brown advised the defendant of his rights prior to any questioning .
“Q. Specifically, what did he advise him, as well as you can recall?
“A. He advised that he did not have to make any statements with regards to this robbery, that any statement that he used could be used against him in a Court of law. He also advised him that he had the right to have an attorney present during questioning if he so desired and if he couldn’t provide one for himself the Court would provide one for him, and the defendant acknowledged that he did understand his rights.” [Tr. 176-177]

It is true, as the majority notes, that both officers used the expression “advised of his rights” but their testimony must be interpreted in the light of the actual enumeration of the rights explained.

The issue of “request of the parent,” referred to but not reached by the majority, raises a substantial constitutional question under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The defendant, a 19-year-old adult, at no time requested an attorney. Admittedly, he is of borderline intelligence, but the trial judge found:

“The defendant’s performance in the courtroom convinced the Court that he was clearly able to understand his rights, as explained by the officers, and also the questions asked of him. Having, thus, repeatedly been advised of his rights and then voluntarily making a statement as to the commission of the offense, the defendant could not later suppress that statement.” [Tr. 61]

See State v. Edwards, 257 La. 707, 243 So.2d 806 (1971); State v. Callihan, 251 La. 298, 242 So.2d 521 (1970); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968).

As I understand the testimony, the officers invited defendant’s father to be present during the interview. After being advised of his rights, the defendant waived legal assistance. Near the end of the interview, the father remarked that “he thought he should get his son a lawyer.” Before the officers could ascertain whether or not the son concurred in this remark, the son announced, “I done it.” Upon learning of his son’s involvement in the armed robbery, the father became angry at him, stated that he didn’t want to have anything else to do with him, and started to leave the room. The officers persuaded him to remain. The son then explained his commission of the crime in more detail. However, in a few minutes, the officers discontinued the interrogation without getting a recorded statement. The investigation was then recessed for about an hour. During this time, neither the father nor son secured a lawyer or expressed interest in securing one.

I am inclined to resolve the question in favor of the conviction. Prior to interrogation, the defendant waived his right to legal assistance. The father’s remarks do not seem to be a request for a lawyer. They were not concurred in by the defendant. In any event, the defendant confessed before the officers had time to pursue the matter further. See, e. g., Mayzak v. U. S., 402 F.2d 152 (5th Cir. 1968); Lloyd v. State, 223 Tenn. 1, 440 S.W.2d 797 (1969); Combs v. Commonwealth, Ky., 438 S.W.2d 82 (1969); People v. Smith, 42 Ill.2d 479, 248 N.E.2d 68 (1969); State v. Woods, 182 Neb. 668, 156 N.W.2d 786 (1968).

For the reasons assigned, I respectfully dissent.

TATE, DIXON and DENNIS, Justices

(concurring in the denial of a rehearing).

The majority opinion accurately describes the testimony and evidence introduced at the motion to suppress hearing. The dissenting opinion of Sanders, C. J., quotes testimony of police officers which was not given at the motion to suppress hearing but later at the trial on the merits. Therefore, the later trial testimony is not relevant to our determination upon appeal whether the trial judge ruled properly in denying the motion to suppress. Accordingly, the original opinion should be reaffirmed and the motion for a rehearing denied.

SANDERS, C. J.,

dissents from the denial of rehearing, pointing out that the testimony referred to was designated for our consideration. Moreover, on the admissibility of a confession all testimony relating to it is properly considered.

SUMMERS and MARCUS, JJ., are of the opinion a rehearing should be granted.


author: DENNIS, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Harry CAGE.
    No. 57688.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 13, 1976.
    Arthur L. Harris, Sr., Harris, Stampley, McKee, Bernard & Broussard, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-relator.
   DENNIS, Justice.

The defendant, Harry Cage, was indicted for aggravated rape by a grand jury in Orleans Parish. He moved to quash the indictment on the grounds that citizens residing in the Desire housing project were intentionally excluded from the venire from which the grand jury was chosen. The trial judge sustained the motion to quash, and the State appealed. Two days earlier we held that, unless a law or ordinance has been declared unconstitutional, the State has no right of appeal from an adverse ruling in a criminal case. State v. James, 329 So.2d 713 (La.1976). However, because of the brief time between our ruling and the State’s appeal, we will consider its motion as an application for writs, and review the trial court proceedings under our supervisory jurisdiction.

The Desire project houses approximately 9,500 black citizens, of whom some 2,695 are at least eighteen years of age. The record is devoid of evidence that any of these adults could not qualify as a juror under La.C.Cr.P. art. 401. Nevertheless, the jury commission discontinued the service of subpoenas upon persons residing in the project during the preparation of the venire from which the grand jury was selected in this case. The chairman of the jury commission testified this action was taken because some process servers had been threatened with guns and had had their automobile tires slashed in the project. However, the chairman testified that in August, 1975, the commission resumed the service of subpoenas in the Desire project with police protection.

The United States Supreme Court in Thiel v. Southern Pacific Company, 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181, 1184 (1946), in the course of exercising its supervisory powers over federal trials, laid down the principles for the selection of fair and impartial jurors from a representative cross-section of the community:

“The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 [86]; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680 [707]. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discrimi-nations which are abhorrent to the democratic ideals of trial by jury.” (Emphasis added).

As a result of later decisions by the high court, e. g., Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), these requirements are now applicable to the selection of state petit and grand juries under the Sixth and Fourteenth Amendments to the United States Constitution.

Louisiana has adopted these principles in its constitution, La.Const. Art. I, § 16, Art. V, §§ 33, 34 (1974), its statutory law, La.C. Cr.P. arts. 401, et seq., and in the rules of its highest court, La. Supreme Court rule XXV.

We recognized our commitment to these principles in State v. Enloe, 276 So.2d 283 (La.1973) wherein we held that “[i]n the context of jury selection, due process requires only that the defendant be afforded with a jury from which there has been no arbitrary exclusion of any particular group of individuals * * *” (emphasis added), and recently in State v. Procell, 332 So.2d 814 (La.1976), wherein we reversed a conviction by a jury from which the jury commission had intentionally excluded those whom it anticipated would claim exemptions from jury service.

In finding that the grand jury in the instant case had not been properly selected, the trial judge stated:

“The court is of the opinion that the jury selection process was not a complete cross-section of the community based upon the fact that the action of the Jury Commissioner and his process servers, operating outside the scope of their authority, systematically and intentionally deprived a certain section of the population, namely persons who are black, who live in subsidized housing, and belong to a certain socio-economic segment of the community, from the possibility of appearing on the grand jury which indicted Harry Cage. The cases cited in this opinion, along with the Louisiana Code of Criminal Procedure and the testimony adduced upon hearing on the motion, is the basis for the Court’s ruling.”

The State does not deny that the jury commission failed to follow the law or that it excluded Desire project residents from possible service upon the grand jury. However, the State argues that the trial judge was in error in quashing the indictment because, under the circumstances, the failure to serve subpoenas within the project was excusable and, in any event, did not prevent the impanelling of a grand jury venire representing a fair cross-section of the community.

We are not persuaded by these arguments. In the instant case the defendant did not seek to establish a prima facie case of purposeful discrimination by statistical data, which the State then might have overcome by evidence presenting a constitutionally acceptable explanation for racial or class disparities shown to exist. Cf. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Salary v. Wilson, 415 F.2d 467 (5th Cir. 1969); Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966). Instead, he demonstrated directly with the testimony of the chairman of the jury commission an intentional exclusion from jury service of a sizeable geographical group within the parish. The State asserted, without proof, that despite the exclusion of the Desire project dwellers, the grand jury venire constituted a cross-section of the community because poor black people residing in subsidized housing were adequately represented. Even if we accept this assertion as true, we conclude that the grand jury venire was assembled in violation of both federal and state constitutional principles because the exclusion was deliberate and involved a sizeable and distinctive group in the community. Thiel v. Southern Pacific Co., supra; Taylor v. Louisiana, supra; La.C.Cr.P. arts. 409, 412; La. Supreme Court rule XXV.

The words of Justice Murphy, although stated in a different context, are equally applicable here:

“ * * * Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may one by one lead to the irretrievable impairment of substantial liberties." Glasser v. United States, 315 U.S. 60, 86, 62 S.Ct. 457, 472, 86 L.Ed. 680, 707 (1942).

We attribute no evil motive to the jury commission in its failure to cause subpoenas to be served on prospective jurors in the Desire housing project. On the contrary, it appears that service was discontinued for a period of time in this area out of a sincere concern for the safety of the process servers. Furthermore, we do not doubt that the jury commission itself lacked the wherewithal to provide the needed protection and that time was required to obtain assistance from other governmental agencies. But the fact remains that a particular geographical group was intentionally excluded from the potentiality of service upon the grand jury in this case. If we were to approve the deliberate omission of one neighborhood for one grand jury term because of the hazards described here, in the future we would quite logically be asked to sanction the expansion of this tendency to numerous other areas and jury terms, resulting in irretrievable impairment of constitutional liberties. The State itself is ultimately responsible under the federal constitution and its own charter for selecting, serving and obtaining fair and impartial grand juries, and we have no doubt that it possesses adequate physical police power to perform this duty anywhere within its boundaries. Therefore, we cannot excuse the intentional failure to serve subpoenas upon a particular group of prospective jurors in this case merely because they resided in a neighborhood having a high incidence of crimes.

Accordingly, the ruling of the trial court is affirmed.

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

SUMMERS and MARCUS, JJ., dissent.

SANDERS, Chief Justice

(dissenting).

For a short time in 1975, the process servers discontinued the service of jury summons in the New Orleans Desire Housing Project because of violence against them. Service was soon resumed with police protection. The Desire project is occupied largely by black residents, of which an estimated 2,695 are at least eighteen years of age.

During this period, the Jury Commission, selected a 75-member jury venire, of which “from 45 to 55 percent” were black. From the venire, a 12-member Grand Jury was drawn. This Grand Jury indicted Harry Cage for aggravated rape.

The majority affirms the quashing of the indictment because of the arbitrary exclusion of a “geographical group.” I disagree.

Article 419 of the Louisiana Code of Criminal Procedure provides:

“A general venire, a grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant.”

In the present case, the New Orleans Jury Commission excluded no one. The failure of service was due to the violence against the process servers. There is no showing of how many prospective jurors failed to get service. Neither does the record reflect that the jury venire failed to contain a fair cross-section of the community.

I cannot agree that the Desire residents are a “distinctive group” which must be represented in the jury pool if constitutional mandates are to be obeyed. The housing project is more accurately described as an identifiable geographic location. If the theory espoused by the majority is uniformly applied, it will impose great burdens upon the administration of criminal justice. The inability to make service on a resident or residents of other large apartment complexes in New Orleans would likewise frustrate court proceedings. Under the same theory, court proceedings would also be brought to a halt when identifiable locations cannot be reached by process servers because of flood or other natural disasters. Clearly, no constitutional doctrine requires this result.

In any event, there is no showing of fraud or great wrong as required by Article 419 of the Louisiana Code of Criminal Procedure. See State v. Cripps, 259 La. 403, 250 So.2d 382 (1971); State v. Lynch, La., 323 So.2d 781 (1975); State v. Larue, La., 324 So.2d 384 (1975). Hence, I would uphold the indictment.

For the reasons assigned, I respectfully dissent.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Keith W. LEDET.
    No. 57710.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 13, 1976.

      William M. Bass, Houma, Voorhies & Labbé, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant and Donald Duhe were charged jointly by bill of information with armed robbery, in violation of La.R.S. 14:64. The crime occurred shortly after 6:00 p. m. on June 12,1974 in the parking lot of the D. H. Holmes Department Store in Houma. The victim, an employee of the store, was confronted by a person she later identified as Duhe, who held a gun in her face. When she acceded to his demand for her purse, he took some of its contents and fled in a blue station wagon. The victim got the license number of the vehicle and reported the robbery to the police. Another witness in the parking lot at the time saw a blue station wagon speeding out of the parking lot with two males, in the front seat. A short time after the robbery the police stopped a vehicle fitting this description containing Duhe, the stolen goods, and the defendant, who was driving the automobile.

Duhe pleaded guilty and testified at defendant’s trial in his behalf. In essence, he testified that defendant had no knowledge of and had not participated in the robbery. Nevertheless, the defendant was found guilty by a jury and sentenced to serve twenty years at hard labor without benefit of probation, parole, and/or commutation and diminution of sentence. On this appeal he urges six assignments of error.

ASSIGNMENT OF ERROR NO. 1

After arresting defendant and Duhe, police officers searched the car in which they were riding and found two guns. One was a .38 caliber revolver found between the seat and the front door on the passenger side of the automobile, and the other was a .25 caliber automatic pistol found under the seat on the driver’s side of the vehicle. During the testimony of the victim, she was asked to identify the weapon used by her assailant to threaten her. She could not positively identify the revolver as the weapon because she said that all she was able to concentrate on at the time of the robbery was the barrel of the gun. The prosecutor then showed her the automatic, asked which one looked more like the gun used in the crime, and she stated that she thought it was the revolver.

Later, the two officers who conducted the search of the car testified that they had recovered the automatic, describing where they had found it and what they had done with it between the time of the crime and the trial. At the close of the State’s case, the prosecutor sought to introduce the .25 caliber automatic pistol into evidence. At this time, counsel objected to its introduction on the ground that it was irrelevant and prejudicial, but the trial court overruled the objection and allowed the gun to be introduced. Defendant assigned as error this ruling of the trial judge and urges it as a basis for reversal of his conviction.

However, we conclude that the .25 caliber automatic pistol was evidence relevant to the case and that it was therefore properly received in evidence. La.R.S. 15:441 provides:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
“Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

As pointed out by the State, the victim was unable to give an absolutely positive identification of the weapon used in the armed robbery. Both guns found in the automobile a short time after the commission of the crime were relevant to prove that Duhe used a dangerous weapon to rob the victim.

Moreover, the fact that a pistol was found under the seat on the driver’s side of the car tended to show that defendant was a conscious participant whose role in the crime was to drive the get-away car. Certainly the presence of the weapon had probative value in establishing that the defendant realized he might need a gun to fend off authorities seeking to prevent his and Duhe’s escape. Of course, to be admissible, the probative value of evidence must outweigh its prejudicial effect. McCormick on Evidence, 438 § 185 (2d ed. 1972). We find that the gun introduced in this particular instance had greater probative value than prejudicial effect. Thus, the trial court properly admitted it into evidence.

For the foregoing reasons, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

This assignment is based upon the trial court’s refusal of defendant’s motion for a directed verdict. Defendant claims that there is no evidence upon which the jury could have found him guilty of the crime of armed robbery, and that the trial court therefore erred in failing to grant the motion. Although defendant was not alleged to have himself performed the acts constituting armed robbery, the State’s case was based upon the theory that defendant was a principal to the crime. LSA-R.S. 14:24 provides:

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

The victim of the crime testified that after Duhe robbed her, he ran away from her car through the D.H. Holmes parking lot. Shortly thereafter, she saw a blue station wagon with two young white males in it speeding out of the parking lot and committed to memory the license plate of the automobile. Another witness stated that she saw the blue station wagon as it rapidly left the parking lot and that two young white men were riding in it.

The officers who arrested Duhe and defendant testified that defendant was driving the car at the time it was stopped, that it matched the description given by the victim and the witness and that the license plate number was the same as that given by the victim. The officers also indicated that they had to run down the vehicle in order to force the driver to stop. The fruits of the armed robbery were found in the middle of the front seat of the car.

All of the above evidence constitutes facts from which the jury in this case could have found that the defendant was a principal in the armed robbery with Duhe, and thus there is some evidence that he committed the crime. State v. Douglas, 278 So.2d 485 (La.1973). The trial court properly refused the motion for a directed verdict.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant’s third assignment of error complains of the following extract from the charge given by the trial court to the jury:

“Gentlemen, a legal presumption relieves him in whose favor exists the necessity of any proof, but can nonetheless be destroyed by rebutting evidence. Such is the presumption that the defendant intended the natural and probable consequences of his act. That the defendant is innocent. That the person in the unexplained possession of property recently stolen is the thief. That the evidence under the control of a party and not produced by him was not produced by him because it would not have aided him. From the recent possession of stolen things, guilt may be inferred, unless there is a reasonable account given of the property as having been lawfully handled and not feloniously obtained. This inference or presumption is strengthened or weakened in accordance with the length of time between the theft and the time of finding of the property. If it has been shown to your entire satisfaction, and beyond a reasonable doubt, that the defendant possessed the things of value described in the bill, either physically or constructively, it must also be show [sic] by the same degree of proof that the intention of the defendant was to deprive another permanently of his property in violation of the law.”

This charge tracks almost perfectly the provisions of La.R.S. 15:432, which states:

“A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it pre-ex-isted; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; that the person in the unexplained possession of property recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would have not have aided him; that the witnesses have told the truth.”

Defendant argues that the trial court erred in instructing the jury as it did, contending the presumption did not apply to him because no stolen property was found on his person. However, the testimony of the arresting officers placed the stolen property in the middle of the front seat between defendant and Duhe a short time after the commission of the crime. La.R.S. 15:432 refers not only to actual physical possession of stolen property on one’s person, but also constructive possession of items within the immediate control of a person. It was for the jury to decide whether the defendant in fact was in possession of the goods.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment, defendant urges that the trial court erred in refusing his motion for a new trial. Defendant’s motion was grounded on the assertion that the verdict is contrary to the law and the evidence and on a reurging of the alleged defects at trial which defendant assigned as error.

The trial court’s ruling on this motion presents nothing new for this Court to review. For appellate purposes, a motion for a new trial based on the lack of evidence to support a conviction does not raise a reviewable question of law unless there is a total lack of evidence to prove the crime or an essential element thereof. State v. Collins, 306 So.2d 662 (La.1975). We have reviewed the evidence to determine the validity of defendant’s motion for a directed verdict and, as indicated above, concluded that there was some evidence that defendant committed the crime charged. Furthermore, none of the assignments of error urged by defendant are meritorious. Therefore, the trial court properly denied the defendant’s motion for a new trial.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

Defendant argues that his sentence of twenty years at hard labor constituted cruel and unusual punishment, especially in light of the fact that defendant’s alleged co-conspirator, Duhe, who pleaded guilty, was sentenced to only five years at hard labor.

The record, however, does not reflect that defendant objected to the sentence at the time it was imposed. Article 841 of the La.Code of Criminal Procedure states that an error or irregularity in the proceeding cannot be availed of after verdict unless it was objected to at the time of the occurrence. Thus, the defendant cannot now object to the sentence as being cruel and unusual. See, State v. Dillard, 320 So.2d 116 (La.1975). Even if we chose to consider defendant’s argument despite his failure to properly raise the issue on appeal, it does not appear to have merit. The fact that a sentence may be greater than one received by another defendant from the same court for the same crime does not, in and of itself, render the sentence cruel and unusual. See, State v. Blue, 315 So.2d 281 (La.1975).

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 6

The final error assigned by defendant relates to the constitutionality of a non-unanimous jury verdict. He argues that because his jury returned a less than unanimous verdict of guilty, he was denied the right to be presumed innocent until found guilty beyond a reasonable doubt.

This argument has been consistently rejected by both the United States Supreme Court and this Court. See, Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Ross, 320 So.2d 177 (La.1975). A less than unanimous guilty verdict in an armed robbery case does not violate the United States Constitution or the Louisiana Constitution.

This assignment of error lacks merit.

Nevertheless, the sentence must be vacated and the case remanded for re-sen-.fencing. On October 4,1974, the defendant was sentenced to serve twenty years at hard labor without benefit of probation, parole or commutation or diminution of sentence. Insofar as the sentence conflicts with the Louisiana Constitution by depriving the governor of his power to commute the sentence it is invalid. Art. 5, § 10, La.Constitution 1921; State v. Ramsey, 292 So.2d 708 (La.1974).

For the reasons assigned, the conviction of the defendant is affirmed but the case is remanded for re-sentencing.


author: CALOGERO, Justice. PER CURIAM.

text:
    STATE of Louisiana v. Clarence SANDERS.
    No. 57711.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Per Curiam In Denial of Rehearing Oct. 15, 1976.

      Frank DeSalvo, Orleans Indigent Defender Program, Gretna, for defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Timothy W. Cerniglia, Asst. Dist. Atty., for plaintiff-appellant.
   CALOGERO, Justice.

The question in this case is whether the state may multiple-bill a person, who was convicted under R.S. 14:95.1 of being a convicted felon who carries a concealed weapon, by using in the multiple-bill the same felony convictions alleged as elements of-the offense. This issue is res nova in Louisiana.

The issue arose in this way. Clarence Sanders was twice convicted of committing armed robberies, once in 1955 and again in 1961. Again, in 1970, he was convicted of committing a felony, attempted simple burglary. Presumably having served his previous sentences, he was charged and convicted of violating R.S. 14:95.1, which makes it a crime for a convicted felon to carry a concealed weapon. In order to establish that he was a convicted felon, the state relied upon his 1961 conviction for armed robbery and his 1970 conviction for attempted simple burglary. He was tried in November of 1975, convicted, and sentenced to five years imprisonment. Although the record reflects that defendant Sanders noticed an appeal from that conviction, that appeal has not yet reached this Court. Instead, the matter before us concerns a bill of information, filed by the state after conviction and sentencing, charging Sanders ,as a multiple offender under R.S. 15:529.1. 'In this charge the state relied upon all three of the prior offenses noted above, namely the two armed robberies and the attempted simple burglary. Sanders filed a motion to quash the multiple offender bill, alleging that the prosecution constituted double jeopardy and that the habitual offender statute was not intended by the legislature to be used, and may not be used, to enhance a penalty which has been imposed under R.S. 14:95.1, itself a status crime. The trial judge granted defendant’s motion because he found that the state’s “double use of the same conviction to cause first, a status crime, 14:95.1, and secondly, an enhancement under 15:529.1” constituted a violation of the prohibition against double jeopardy and/or collateral estoppel, and a violation of the guarantee of due process of law. The state has taken an appeal from the trial judge’s action in quashing the multiple offender bill.

Before looking to the merits of the case, we must decide whether the matter is properly before the Court. We have held that under C.Cr.P. art. 912(B)(1), the state has no appeal from the quashing of a multiple offender information because it does not charge a substantive crime, but merely enhances the penalty. State v. Jackson, 298 So.2d 777 (La.1974). However, we notice that the state might have been afforded an appeal under an independent provision, C.Cr.P. art. 912(B)(3) which allows the state to appeal from an adverse ruling on “a plea of double jeopardy.” Although the state would have had an appeal under that provision as it had existed under the 1921 Constitution, we have recently held that under the provisions of the 1974 Constitution, when the state seeks review of a final pre-conviction judgment or ruling in a criminal case, that review is possible only under the Court’s supervisory jurisdiction, available by application for writs of review, not under the Court’s appellate jurisdiction. State v. James, 329 So.2d 713 (La.1976). However, at the time of the state’s appeal in the instant case, we had not yet rendered our decision in State v. James, supra, which held that because of a conflict with the 1974 Constitution, the provisions of Article 912 allowing the state to appeal adverse rulings on such matters as motions to quash and pleas of double jeopardy were ineffective. Therefore, we shall treat this appeal as an application for supervisory writs.

La.R.S. 14:95.1 is part of a 1975 amendment to the previously existing R.S. 14:95. The latter statute makes criminal the intentional concealment of a firearm, and various other offenses concerning weapons. It does not impose punishment for possession of a weapon. Anyone found in violation of R.S. 14:95 can be imprisoned no longer than six months and/or fined no more than five hundred dollars. R.S. 14:95(B).

In 1975 the legislature enacted special legislation to punish a person who has been convicted of certain enumerated felonies and who possesses a firearm or conceals a weapon. R.S. 14:95.1. The statute contemplates proof of prior conviction of an enumerated offense as well as possession or concealment of a weapon. The legislature announced that it had directed its statute toward preventing convicted felons from possessing or concealing weapons. II State of Louisiana Acts of the Legislature 1975 at 1063. The statute greatly increases the penalties: possessing a firearm exposes a felon to a minimum of three years imprisonment and a maximum of ten years; carrying a concealed weapon additionally imposes the restriction that the sentence be without benefit of probation, parole, or suspension of sentence, and adds a fine of not less than one thousand dollars nor more than five thousand dollars. By its passage of R.S. 14:95.1, therefore, the legislature raised the maximum penalty for carrying a concealed weapon from only six months and five hundred dollars to ten years without benefit of pardon, parole, or suspension of sentence and five thousand dollars because the person has committed prior felonies. And it has imposed a penalty of up to ten years imprisonment for a person who possesses a weapon if that person has been convicted of a felony even though a person without a felony record receives no penalty at all for committing the same act.

In the case before us, the state has not been satisfied to allow defendant Sanders to be sentenced within the specially authorized maximum penalty provided in R.S. 14:95.1, but has attempted to further enlarge his penalty by multiple-billing him under R.S. 15:529.1. In doing this, it has attempted to use defendant’s prior conviction twice: first, to establish his status as a convicted felon so as to convict him of the crime, and, second to increase the penalty through a multiple bill. The trial judge felt that this double use of the same convictions was barred by the prohibition against double jeopardy (or collateral estoppel) and by the guarantee of due process. Although we affirm the trial court’s action in quashing the indictment, we do so for other reasons, finding it unnecessary to reach these constitutional issues.

The habitual offender statute, enacted in 1956, does not create a new or separate offense based on the commission of more than one felony but merely provides for imposition of an increased sentence for persons convicted of second and subsequent felonies. State v. Jackson, supra; State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974). It is a general statute designed to punish those who are repeat offenders. State v. Washington, 248 La. 894, 182 So.2d 528 (1966).

The firearms statute at issue here, R.S. 14:95.1, was enacted in 1975 and, as previously explained, provides that possession or concealment of a weapon by a person who has previously been convicted of one of the offenses therein enumerated is a felon, and that punishment therefor is confinement for three to ten years. Under the statute it is not the possession or concealment of a weapon — standing alone — which is a felony. It is made a felony only when the person committing the act has previously been convicted of one of the enumerated offenses. The act of possessing or concealing becomes a felony only because the person has the status of convicted felon. Consequently, the legislature has itself imposed an increased penalty on a possessor or con-cealor of a weapon, if he is a felon, by means of this legislation specially aimed toward the convicted felon. We assume that the legislature was prompted to make this change because a person multiple-billed after conviction under the original statute,. R.S. 14:95, could usually be given only a very short sentence. Since the legislature in passing R.S. 14:95.1 has in that very statute provided enhanced penalties for the act of concealing a weapon when the con-cealor is a felon, we therefore presume that it must not have intended the multiple enhancement incident to the state’s using R.S. 15:529.1 to further enhance the penalty.

In reaching this conclusion, we find persuasive the decisions of other state courts which have determined that habitual offender laws may not be used to further enhance penalties for status crimes. We find the following language used by the Kansas Supreme Court particularly appropriate:

“Furthermore — if the habitual criminal statute were to apply to the facts of this case the practical effect would be to nullify the penalty provision of the special statute in question — which is imprisonment for not to exceed five years. In fixing such penalty the statute itself takes into account the fact of the previous conviction.” State v. Ware, 201 Kan. 563, 442 P.2d 9, 11 (1968) [Emphasis in original]

Moreover, we also find persuasive the fact that the Louisiana legislature has, in a recent amendment to Article 893 of the Code of Criminal Procedure, indicated that the state can multiple-bill a person on the basis of a suspended sentence under that article. In the statute at issue here, on the other hand, the legislature did not indicate that it wished the multiple-billing procedure to be available upon conviction. The firearms statute details specific punishment for concealment of a weapon by a felon; its terms do not indicate that a greater penalty can be superimposed by multiple-billing. Since the legislature has specified the penalty limits it wishes imposed on convicted felons who carry weapons, and since it has not indicated that further enhancement is to be allowed through the multiple-billing procedure, we are persuaded that the legislature did not intend that a person convicted under R.S. 14:95 be subject to multiple billing.

Consequently, we find that the penalty provisions enacted in R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty.

For the reasons assigned, we conclude that the action of the trial court in quashing the indictment was correct. The state’s application for supervisory writs (which is what we construe the state’s attempt to appeal to be) is therefore denied.

Application for Rehearing

PER CURIAM.

For the reasons expressed in our opinion in this case we construed the state’s appeal as an application for writs, State v. James, 329 So.2d 713 (La.1976), and, doing so, found non-meritorious the state’s complaints. Accordingly, we denied the application.

The state has now filed an application for rehearing. Because rehearings are not available from denial of a writ application, we may not consider the rehearing application. Rules of Supreme Court, rule IX, § 6; State v. Beamish, 206 La. 579, 19 So.2d 258 (1944); Blaize v. Hayes, 204 La. 298, 15 So.2d 228 (1943). See also State v. Mims, 330 So.2d 905 (La.1976), No. 57,073 on our docket wherein defendant’s application for rehearing was not considered following our opinion in which we treated defendant’s appeal as an application for supervisory writs, and, in so considering, denied the application.

However, inasmuch as the state’s application points to a minor error in our original opinion, absent which, in our view, the result would have been no different, we choose to correct the opinion by means of this per curiam.

We related in our original opinion that a person convicted under La.R.S. 14:95 could be double-billed under La.R.S. 15:529.1. That, of course, is true if the person has been convicted under R.S. 14:95(C) for second offense concealed weapon or under R.S. 14:95(D) for third and subsequent offense concealed weapon. However, R.S. 14:95(B) for first offense concealed weapon is a misdemeanor and only on a felony conviction can a person be multiple-billed. Consequently, footnote five and the sentence of the original opinion which it modifies should thus be disregarded because as written it is incorrect and has no relevance to the decision.

The point which we attempted to make in surmising the legislative intent, however, is still appropriate. A prior felon convicted of his first violation of La.R.S. 14:95, a misdemeanor, is not subject to an enhanced penalty under R.S. 15:529.1. Accordingly, we reassert that we assume the legislature enacted R.S. 14:95.1 to allow a more severe penalty (three to ten years without benefit of probation, parole, or suspension of sentence) rather that six months maximum for the prior felon who first violates R.S. 14:95 by carrying a concealed weapon.

      . The trial judge also found that the 1955 conviction, the first of the three convictions in the multiple bill, was improperly-relied on by the state because it did not fit within the time limitation of five years which was set out in R.S. 15:529.1(C).

      . Article 912(B) of the Louisiana Code of Criminal Procedure provides that the state may appeal from judgments or rulings on, inter alia, motions to quash an indictment and pleas of double jeopardy. The 1974 Constitution, however, provides that in criminal cases the state may appeal only when a law or ordinance has been declared unconstitutional. The applicable constitutional provisions are set forth in Article 5, Section 5, of the Louisiana Constitution of 1974, as follows:

        “(D) Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional; (2) the defendant has been convicted of a felony or fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.

        “(E) Other Criminal Cases; Review. In all criminal cases not provided in Paragraph (D)(2) of this Section, a defendant has a right of appeal or review, as provided by law.” (emphasis added)
      In the case before us the defendant has not been sentenced as a multiple offender because the trial judge quashed the multiple bill.

      . The statute provides greater penalties for repeat offenders. Before its 1975 amendment, the statute had provided for a maximum of two years for a second conviction, and five years for a third and subsequent convictions. The 1975 amendment raised those penalties so that now, on a second conviction, the offender shall be imprisoned with or without hard labor for not more than five years. R.S. 14:95(C). On a third or subsequent conviction, the offender shall be imprisoned with or without hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.

      .The felonies are these: “first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon.”

      . Even if multiple billed as a second offender, when that second conviction is for a violation of R.S. 14:95, carrying a concealed weapon, a person can be sentenced only to a minimum of two months and a maximum of one year; as a third offender he can be sentenced to a minimum of three months and a maximum of one year; and as a fourth offender to a minimum of twenty years and a maximum of life imprisonment. These figures show that, even if enhanced by a multiple-bill under R.S. 15:529.1, the penalties available are minimal, except when the defendant is a fourth offender.

      . See Carvajal v. State, 529 S.W.2d 517 (Ct.Cr.App.Tex.1975); Ramirez v. State, 527 S.W.2d 542 (Ct.Cr.App.Tex.1975); State v. Alderete, 88 N.M. 150, 538 P.2d 422 (1975); State v. Smith, 12 Ariz.App. 272, 469 P.2d 838 (1970).

      . The legislature provided in Article 893 that the sentences imposed in certain felony convictions may be suspended and probation imposed, but explained that the conviction “may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Larry K. BARNARD.
    No. 57877.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 15, 1976.
    Bryan Miller, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., A. J. Fazzio, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Howard VEAL.
    No. 57940.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 15, 1976.
    Douglas J. Authement, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., John R. Walker, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Rodney JONES.
    No. 58168.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Rehearing Denied Oct. 15, 1976.
    Jerome J. Barbera, III, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Walter K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.