author: TATE, Justice. MARCUS, J., SUMMERS, Justice

text:
    Anna Mae LEWIS, Plaintiff-Appellee-Relator, v. The ST. CHARLES PARISH HOSPITAL SERVICE DISTRICT d/b/a the St. Charles Hospital and Argonaut-Southwest Insurance Company, Defendants-Appellants-Respondents.
    No. 57470.
    Supreme Court of Louisiana.
    Sept. 23, 1976.
    Rehearing Denied Oct. 15, 1976.
    Daniel E. Becnel, Jr., Reserve, for plaintiff-applicant.

      Charles Hanemann, Henderson, Hane-mann & Morris, Houma, for defendants-respondents.
   TATE, Justice.

This is a workmen’s compensation suit. The trial court held that the plaintiff was totally disabled for purposes of the workmen’s compensation act; but, on appeal, the court of appeal held her to be only partially disabled and, accordingly, reduced her compensation benefits. 323 So.2d 842 (La.App. 4th Cir., 1975). We granted certiorari, 326 So.2d 377 (La.1976), because we doubted the correctness of this last conclusion.

Legal Principles Applicable

Within the meaning of the compensation act in effect at the time of the present injury, an unskilled common laborer, such as is the plaintiff, is considered permanently and totally disabled, La.R.S. 23:1221(2) (1968), “if the injury has substantially decreased his ability to compete with ablebod-ied workers in the flexible general labor market.” Ball v. American Marine Corp., 245 La. 515, 159 So.2d 138 (1963); Malone, Louisiana Workmen’s Compensation Law, Section 275 (1951; 1964 Supplement).

On the other hand, if the residual of the accident does not substantially handicap the worker in securing employment, then an award for partial disability, La.R.S. 23:1221(3) (1950), may be appropriate where the residual results in disability to perform only some of the duties in which he was customarily engaged when injured. Blanchard v. Pittsburgh-Des Moine Steel Co., 223 La. 577, 66 So.2d 342 (1953); Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739 (1950); Malone, Section 278.

Facts

As found by both trial and intermediate courts, the preponderance of the evidence without substantial dispute shows:

Mrs. Lewis, age 25, was employed as a maid in the housekeeping department of the defendant hospital. Her duties involved regular exposure to a detergent germicide containing a phenolic chemical. As a result, the back and palms of her hands and fingers suffered extensive loss of pigment (75% of her right hand and 50% of her left hand).

Due to the residual sensitized condition of her hands, the plaintiff is unable to be employed in work involving exposure to phenol compounds or to sunlight. The medical evidence shows that this inability, resulting from the physical residual of the accident, will indefinitely continue. The plaintiff’s condition is a relatively rare result of the use of phenol compounds, arising from some individual characteristic of the plaintiff’s skin found in few people.

Further, as a residual of the injury, the plaintiff, a black woman, is left with severely discolored, diseased-appearing hands mottled with irregular white blotches over much of their surface. The disfiguring residual is especially noticeable (and revul-sively so) in a person of the black race, such as is the petitioner.

The skin condition also prevents outside work involving exposure to sunlight, since by reason of the loss of pigment the skin is unprotected and will blister. However, these results of exposure to sunlight may be avoided by wearing gloves and by use of heavy sunscreen applications.

At the time of trial, about a year after full manifestation of the loss of pigment, the specialist for the defendant testified that some regeneration had occurred. The preponderance of the medical evidence, elicited from the specialists testifying on the plaintiff’s behalf, is that substantial improvement of the plaintiff’s condition is problematical, if not unlikely.

Legal Disability

The court of appeal differed from the trial court in its appreciation of the legal consequences of these virtually undisputed facts.

The court of appeal held the plaintiff to be only partially disabled. It relied upon the plaintiff’s physical ability to do all work not involving exposure to regular contact with phenolic cleaning compounds, and it felt that the record did not show any actual limitation of employment opportunities because of the cosmetic effect of the depig-mentation.

On the contrary, however, we think that the trial court correctly held that, by reason of the work residual, the plaintiff suffered a substantial handicap in securing employment opportunities available, to black females in the rural area of the claimant’s work injury °and residence.

The record indicates that phenol compounds are a component of most popular household disinfectants in common use, and also in almost all detergents and disinfectants widely used in industrial or commercial establishments in connection with routine cleaning. Almost without contradiction, the record indicates that the plaintiff by reason of the work injury residence cannot accept employment in any household, commercial, or industrial employment involving exposure to these commonly and widely used detergents and disinfectants.

As the trial court noted: The plaintiff’s “capacity to earn money on the open job market has diminished. . . The plaintiff is in a similar circumstance as the biblical characters who had leprosy. She becomes an outcast in her world of work. The test of whether the injury has substantially decreased the worker’s ability to compete with able bodied workers in a flexible general labor market is met. (Ball v. American Marine Corporation, [245 La. 515], 159 So.2d 138 (1963). This court is of the opinion that the facts require a decision of total and permanent disability and will so rule.”

As we noted in Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271, 274 (La.1973), “ ‘The law fixes disability in terms of loss of earning capacity, which includes the extent of the physiological impairment as only one factor. The function of the judge is much broader than that of the medical man, for loss of earning capacity, which is the eventual touchstone of all legal definitions of disability, can be determined only by reference to the state of the labor market, hiring practices, the humanity of obliging a man to work in pain, and other broad policy considerations which the physician is not equipped nor authorized to evaluate.’

In accord with these accepted criteria of disability, the trial court properly took into account that employment opportunities for untrained black females in the rural area of her work-injury and residence are for the most part limited to housekeeping and service occupations and employment, much of it requiring the prohibited exposure to commonly used detergents and disinfectants.

The trial court, which (unlike the appellate courts) physically observed the condition of the plaintiff’s hands, properly also considered the narrowing of employment opportunities that must reasonably result from observation by the small-enterprise proprietor or the housewife (the usual employers in the labor market open to the plaintiff) of the disfigured and diseased-appearing condition of the plaintiff’s hands, as well as her lack of qualifications for other employment not involving the physical and cosmetic handicaps noted.

For these reasons, we do not find persuasive the suggestions of alternative possible employments suggested by defense counsel in brief. These suggested employments are: in a cafe, a restaurant, a daycare center, a laundry, a hardware store, a gas station, a grocery store, a five-and-ten-cent store, or as a seamstress, or as a jani-tress in a school or office, or driving a school bus, baby-sitting, ironing, or performing other domestic work.

Even from most of these, under the medical evidence, the plaintiff is barred because, in the ordinary employment opportunities open in them to untrained black females, exposure to the detergents and disinfectants in common use would cause blistering and further loss of pigment and greater disability.

The trial court properly found the plaintiff to be totally disabled under its reasonable factual interpretation of the substantially handicapping effect of the work-injury’s residual upon the plaintiff’s ability to secure other employment. We find no reason to disturb the trial court’s factual findings, as supported by the preponderance of the evidence found credible by it and by reasonable inferences drawn therefrom. See Canter v. Koehring, 283 So.2d 716 (La.1973).

In Charleston v. Veri-Fresh Poultry Company, Inc., 273 So.2d 712, 716 (La.App. 1st Cir. 1973), certiorari denied 277 So.2d 445 (“* * * no error of law.”) (La.1973), the intermediate court similarly concluded, under similar circumstances, that the “plaintiff is substantially handicapped in competing in the common labor market for a job, considering her training, sex, education, and the availability of work in her area. Under the authorities applicable . ., she is considered to be totally and permanently disabled within the purview of the workmen's compensation law.” See also, to the same effect, Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259 (1966).

Conclusion

We therefore reinstate the trial court’s determination that that plaintiff is entitled to workmen’s compensation benefits for total and permanent disability. The record reflects that she is entitled to weekly compensation benefits at the rate of $48.10 per week (65% of weekly wages of $74.00 per week). The applicable statutory award for permanent and total disability is for weekly benefits in this amount during disability, not to exceed 500 weeks. La.R.S. 23:1221(2) (1968).

For the foregoing reasons, therefore, we affirm the award by the court of appeal of medical expenses and its taxing of court costs, but we amend its judgment for disability benefits.

Accordingly, we decree judgment for disability benefits in favor of the plaintiff, Anna Mae Lewis, and against the defendant hospital (St. Charles Parish Hospital Service District) and its insurer (Argonaut Southwest Insurance Company), holding them liable in solido for workmen’s compensation benefits in the amount of Forty-Eight and 10/100 ($48.10) Dollars per week, commencing December 14, 1973, during disability, not to exceed five hundred weeks in all; with legal interest at the rate of seven per cent per annum upon each unpaid weekly compensation installment from date of delinquency until paid; less credit for compensation and benefits paid. All costs are taxed against the defendants.

COURT OF APPEAL JUDGMENT AMENDED, AND TRIAL COURT DETERMINATION OF TOTAL DISABILITY REINSTATED.

SUMMERS, J., dissents and assigns written reasons.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

MARCUS, J.,

dissents, being of the opinion that the judgment of the Court of Appeal is correct. See, La.App., 323 So.2d 842.

SUMMERS, Justice

(dissenting).

This workman’s compensation claim was brought by Anna Mae Lewis, a black woman, who was employed on February 20,1973 in the housekeeping department of the St. Charles Hospital in St. Charles Parish. In that capacity she was required to clean and service wards, rooms, baths, laboratories and offices; to clean, mop and dust floors; to scour and polish bathtubs, sinks, mirrors, and similar equipment and to perform related duties. In carrying out her duties it was necessary to use a cleaning compound with the trade name “Micro-phene.” This compound contained phenolic detergent germicides. Any moderately irritating phenolic compound can depigment skin without producing toxic inflammation.

As a result of her use of the compound, in a solution containing one ounce to one gallon of water, in her cleaning duties, she experienced a gradual depigmentation of the skin on her hands which became noticeable in September 1973. The condition progressed until in December 1973 the depig-mentation had affected seventy-five percent of her right hand and fifty percent of her left hand. Under these circumstances her doctor advised that she seek other employment where she would not be in contact with phenol compounds. Since that time she has not sought or obtained other employment. This suit followed in which plaintiff claimed total and permanent disability under the Workmen’s Compensation Act.

The trial judge concluded that plaintiff was totally and permanently disabled and awarded judgment against the hospital and its insurer in solido for $32,500, payable $65 per week beginning December 14, 1973, not to exceed 500 weeks, with 12 percent per annum interest, as provided by Section 1201.2 of Title 23 of the Revised Statutes, on each of the past due payments from its due date until paid. Judgment was also awarded for all medical and incidental expenses with 12 percent interest from date of judicial demand until paid. The fees of experts were taxed as cost.

On appeal to the Fourth Circuit the trial court judgment was annulled and set aside. Finding plaintiff to be partially disabled the Court of Appeal awarded compensation at the rate of $17.50 per week for 300 weeks, from December 14, 1973, with legal interest on each of the past due payments from its due date until paid. The sum of $115.60 was awarded plaintiff for out-of-pocket medical expenses. Awards of expert fees were affirmed, and the right was reserved to either party to reopen the case in the event the condition worsens or improves. 323 So.2d 842.

The hazardous employment and the work-related cause of the depigmentation is established. The sole question on review is the nature and extent of the disability. This must be determined from plaintiff’s testimony and the testimony of four doctors.

When plaintiff first observed the depig-mentation of her hands in September 1973 she consulted Dr. G. A. de la Bretonne, Jr., at his office in Luling. He was qualified as an expert in dermatology. In his examination he found minimal depigmentation of her hands (mostly the fingers) with slight itching, no bleeding, rash, breaking of skin, numbness, or loss of gripping power. She was apparently not suffering from any degree of pain at the time. He advised her not to handle chemicals like phenocide or to use rubber gloves (for they too contained depigmenting agents), but to use thin cotton gloves next to her skin when rubber gloves were used. (Actually, according to other doctors, depigmenting agents are no longer used in the manufacture of rubber gloves, the inference being that plaintiff could use them without ill effects.) Cormal cream was prescribed for her hands. In this doctor’s opinion work involving use of phenol compounds* should definitely be avoided if the condition was to be controlled and not worsened. Also, the depigmentation created sensitivity to the sun and, possibly, to fish in the affected area. However, depigmentation does not render the skin more susceptible to infection.

Repigmentation, in his opinion, may occur within six months, three years, five years or never. In some instances depigmentation from phenol compounds occurs in other areas of the body which were not in contact with the phenol compounds. In his opinion her condition did not prevent her doing menial labor such as babysitting, ironing or housekeeping if there was no contact with detergents containing phenoeide. In summary he said it was his general medical opinion that plaintiff was physically able to engage in any occupation or undertaking that did not require contact with detergents or soaps containing phenolic compounds, that being the only impediment to her reemployment. And, when contact with phe-nocide is discontinued, repigmentation can occur.

Asserting — though not as an expert— that he could recognize some emotional disorders, Dr. de la Bretonne, Jr., testified over defense objection that a black person with depigmentation suffers emotional upset and possible psychiatric or psychological damage. While the doctor’s opinion is in the field of psychiatry, and opinions involving that subject are more properly rendered by psychiatrists, I will give this opinion the limited weight to which it is entitled, considering the doctor’s qualifications as an expert in the field of dermatology. A like view will be accorded the opinions of the other dermatologists on this subject.

In October 1973 plaintiff consulted Dr. Patricia P. Stevens. Dr. Stevens is well qualified in the field of dermatology and her testimony is that of an expert. Her examination disclosed hypopigmentation of the dorsum of both hands with the right hand slightly more involved than the left, and with little islands of normal pigment on both hands. There was no loss of pigment on any other area of plaintiff’s body. De-pigmentation during treatment was fifty percent on the left and seventy-five percent on the right hand. Tests determined that the depigmentation was most probably caused by phenol compounds. During the course of treatment, including the use of ultra violet light, repigmentation began but, since plaintiff did not return, the prognosis was not recorded. There was no evidence of breaks in the skin or itching. “All she had was depigmentation.” She was last seen in March or April of 1974 at which time depigmentation had generally slowed down, but continued to progress to some extent in the wrist area.

In Dr. Stevens’ opinion the depigmentation was a cosmetic problem and some emotional distress could be attributed to this condition. She observed that plaintiff was “disturbed” by this cosmetic defect in that she was seeking to have the process reversed. If the depigmentation is permanent the area could be sensitive, but the problem would be mostly cosmetic. Plaintiff was advised that she should not perform duties involving use of solutions containing phenol.

Dr. Stevens said some patients like plaintiff have “spontaneously repigmented after so many months. It’s possible she will re-pigment. You can’t predict.”

Dr. William J. Perret is a board-qualified and board-certified physician in the field of dermatology. He qualifies as an expert. He first saw plaintiff February 8, 1974, she having been referred by Dr. Willaim B. Landry of Norco. Plaintiff told Dr. Perret that she had a rash on her hands for approximately ten months, consisting mainly of loss of pigment. Medical examination verified loss of pigment on both hands. Although there was some reddening in the area of the lost pigment, there was no blistering, scaling, or other such finding. No complaint of pain was made by the patient. A cortisone derivative cream was prescribed to reduce any inflammation.

With respect to plaintiff, Dr. Perret was of the opinion the cause of the loss of pigment was phenol antiseptic and she could continue work at the hospital if she did not handle this particular class of compound. On one occasion she complained of swelling of her hands as a result of cleaning fish. This was treated with benadryl, a common allergy medicine, and those symptoms promptly abated and, in fact, may not have been related to the depigmentation problem. Dr. Perret saw her last on March 29, 1974. At that time she complained of itching in the depigmented area which may have been due to exposure to sunlight. At that time depigmentation had not progressed.

In Dr. Perret’s opinion loss of pigment to a colored person is a traumatic thing because the affected individual is thereby rendered different from his peers, and because people have misconceptions about the skin. Some feel depigmentation is a disease, and those affected are shunned by some relatives or friends.

Other than the revulsion to the cosmetic affect of depigmentation and the fact that the area was sensitive to sun, there was no reason why she could not undertake employment in indoor occupations not involving use of phenol compounds, although employment as a saleslady was unlikely because of the appearance of her hands.

Although Dr. Perret did not discharge plaintiff she did not return for further treatment after March 29, 1974. Her future treatment, in his opinion, would not be costly, for there was no real effective treatment. He questioned whether other areas of the body would lose pigment several months after the initial depigmentation.

Dr. F. E. Palomeque, a dermatologist from Houma, testified at the trial for defendants, the other doctors having testified by deposition as plaintiff’s witnesses. He was accepted as an expert.

He first saw plaintiff on April 5, 1974. He verified the depigmentation of both hands; plaintiff complained of no loss of pigment on other parts of the body; and the texture and consistency of the skin in the depigmented area was absolutely normal. There was no dermatitis, inflammatory infection process, blisters, bleeding or cellulitis. He could not recall that plaintiff complained of loss of grip, numbness or constant pain.

In Dr. Palomeque’s opinion plaintiff could undertake any job for which she was qualified provided it did not require her to come in physical contact with phenolic compounds or exposure to sunlight. Under these circumstances there would be no aggravation to the depigmented skin.

Examination of plaintiff’s hands in court at the time of the trial in October 1974 revealed to the doctor that repigmentation, which was in its early stages in April 1974, had progressed a great deal, in the neighborhood of “a good 50 per cent improvement.”

Any employment plaintiff would undertake, in his view, should involve a total avoidance of phenol compounds and large amounts of sunlight exposure. However, the use of gloves or sun screen creams would provide adequate protection against sunlight. A proper glove would also protect against phenol compounds. Other areas of her body could possible depigment as the result of the exposure to phenol compounds. The drug Psoralen, he said, and careful exposure to ultra violet light is of some benefit in aid of repigmentation. De-pigmentation of the skin does make the area more susceptible to allergies or reactions from external stimuli, other than phenol and sunlight. In his opinion depigmen-tation in black persons resulted in some emotional distress.

Dr. Palomeque found repigmentation was progressing satisfactorily and he saw no reason for doing anything else except to allow an adequate period of time for nature to do its work. In view of the present trend of repigmentation, the doctor had no cause to believe depigmentation would continue, unless she came in contact with phenolic compounds. But, he testified, there is no way to tell how long it will take for plaintiff to repigment.

Plaintiff testified that she was married and had three children. She was employed by the hospital on February 20, 1973. She described her duties and the use of the phenol compound. She noticed that with its use the pigment began to leave her hands and she experienced an itching and burning sensation. She continued working and consulted Dr. de la Bretonne in September, who advised her not to work because the chemicals she was using would cause depig-mentation. He also advised against the use of rubber gloves. She nevertheless continued to work until December 14, 1973. She was making $1.85 per hour at that time and voluntarily left her employment.

She then told of seeing the doctors whose testimony we have reviewed and also Doctor Wilson P. Couch and Dr. William Landry, general practitioners who were not called to testify. At the time of trial in October 1974 she was under treatment by Dr. Stevens, having seen her twice in the three weeks preceding the trial. Prior to that time, however, she had not seén Dr. Stevens since March or April 1974. She asserted that repigmentation had not occurred in the palm and not much on the dorsum of her hands and also claimed loss of pigment on her thighs.

According to plaintiff, the depigmented areas itch, she is unable to work, and she gets embarrassed when people ask what is the matter with her hands. She claims she cannot do housework, wash dishes, take a bath, handle seafoods, or bathe her children. Detergents, seafood, furniture polish and soap cause itching, burning, blisters, and sometimes swelling. There is some pain associated with the swelling. She cannot perform her job at the hospital without contact with phenol compounds, and she has not sought other employment since leaving the hospital. Exposure to sunlight burns her hands and prolonged exposure produces blisters, according to her testimony. She has no education or experience which would qualify her for other types of work. Her mother and sister-in-law help her with the housework.

Cross-examination raised some question concerning plaintiff’s credibility, or, at least, her inaccurate memory or exaggeration on such things as signing a sheet containing her job description with the hospital, her failure to notice a sign showing the quantity of the phenol compound which should be mixed with water, the mixing instructions given to her by the supervisor at the hospital, the time she had seen Dr. Stevens prior to trial, and the nature and extent of her disability. Her claim that depigmentation had occurred on her thigh commencing one month prior to trial is not substantiated; it was actually placed in doubt by hospital records showing that her thigh had been treated for cellulitus at Charity Hospital in 1970, long before she began work at the hospital, and some depig-mentation resulted.

And, as the expert evidence makes clear, even the plaintiff’s witnesses agree that she is capable of gainful employment in menial labor on the work level she was engaged in at the hospital, providing she did not come in contact with phenol compounds or excessive sunlight without proper protective covering. In sum she testified that her hands had not gotten worse not had they improved, although she did concede that “the color has come back” to some extent. These assertions are notable for her version of the nature and extent of disability is contradicted by all experts.

As the Court of Appeal concluded, undoubtedly the range of work plaintiff was able to perform was limited by the prohibition against exposure to phenol compounds and, to some extent, sunlight, but the range of work open to her was nevertheless extensive. In brief defense counsel suggests possible employment in a cafe, a restaurant, a day-care center, a laundry, a hardware store, a gas station, a grocery store, a five- and-ten-cent store, or as a seamstress, or as a janitress in a school or office, or driving a school bus, baby-sitting, ironing, or performing other domestic work. Although the record does not show this, the inference is gained that phenol compounds are principally used in hospitals.

The partial depigmentation of plaintiff’s hands, while a cosmetic disability, was not such that it was otherwise disabling. At the time of trial, the skin was unbroken and of normal texture. The palmar surfaces were no longer depigmented. The “minimal hypopigmentation” observed by Dr. de la Bretonne had improved “a great deal” according to Dr. Palomeque. No doctor said she should not or could not return to work. Medical testimony was that she could do anything not requiring contact with phenols or over exposure to sunlight, and even these prohibitions could be eliminated with the use of proper gloves and sun screen creams. The restrictions imposed upon plaintiff’s future employment opportunities are therefore minimal.

For the foregoing reasons, the Court of Appeal properly denied a finding of total and permanent disability and awarded compensation for partial disability under Section 1221(3) of the Workmen’s Compensation Act. In my view the Court’s computation of the award was in keeping with the facts and circumstances; and reserving the right to either party to reopen the case in the event the condition worsens or improves assures a fair opportunity to either party to cure any unforeseen future development.

I respectfully dissent.

      . See La.R.S. 23:1021-1351 (1950), as amended in 1968, but before amendments by Louisiana Act 583 of 1975.

      . The medical evidence shows that the. reaction of the plaintiffs skin to exposure to phenol compounds resulted in a condition technically known as “vitiligo”. See Maloy, Medical Dictionary For Lawyers (3d ed. 1951), verbo “vitili-go”, (p. 710): “Also called leukoderma. It is an acquired pigmentary affection characterized by variously sized and shaped whitish patches on the skin. The patches are smooth, soft, sharply defined, and neither elevated nor depressed. Hairs on the affected areas may or may not turn white. It may involve the whole of the body”; and verbo “leukoderma”, (p. 443): “ * * * Vitiligo (if acquired it is called vitiligo) is an acquired pigmentary affection characterized by variously sized and shaped milk-white or pinkish-white patches on the skin, which are neither elevated nor depressed. In rare cases it may affect the entire body.”

      .See trial court’s reasons of judgment, Tr. 250, 252, and deposition of Dr. Perret, page 9: “I find loss of pigment to the colored patient is one of the most traumatic things that can happen because they look so different from their peers. They can be seen at a great distance, when one realizes there is some blemish, and people have all kinds of misconceptions about the skin and feel they are contagious and sometimes patients are shunned by relatives and friends.”

      . Although the defendant’s specialist indicated that theoretically the plaintiff could work if provided with phenol-proof gloves, he admitted that he knew of no such gloves on the market that would provide such protection. See Tr. 46-47.


source: Caselaw Access Project

author: SANDERS, Chief Justice. DENNIS, J.,

license: Public Domain

text:
    STATE of Louisiana v. John PERKINS, Jr.
    No. 57779.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      R. Harmon Drew, Drew, White, Drew & Drew, Minden, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James S. Harris, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

On March 26, 1973, the defendant, John W. Perkins, Jr., allegedly sold two grams of hashish to Special Agent Danny R. Brown. A Bill of Information charged him with the distribution of a controlled dangerous substance, a violation of LSA-R.S. 40:966(A)(1).

After a trial on the merits, the jury returned a verdict of guilty as charged, and the judge sentenced defendant to five years at hard labor. Thereafter, this sentence was suspended and the defendant was placed on active probation for a period of three years with the condition that he serve ninety days in jail subject to work on parish improvements.

Defendant appeals, relying on thirteen assignments of error.

ASSIGNMENT OF ERROR NO. 1

Prior to trial, the defense filed a Motion to Quash the Bill of Information, alleging that LSA-R.S. 40:966, the statute under which he was charged, was unconstitutional; the trial court overruled this motion. There is no merit in the motion. We have previously upheld the constitutionality of LSA-R.S. 40:966. See State v. King, La., 322 So.2d 205 (1975); State v. Whitehurst, La., 319 So.2d 907 (1975); State v. Stetson, La., 317 So.2d 172 (1975). The federal courts have also sustained the constitutionality of this statute in Louisiana Affiliate of National Organization for Reform of Marijuana Laws (NORML) v. Guste, 380 F.Supp. 404 (E.D.La.1974), affirmed 511 F.2d 1400 (5th Cir. 1975), U.S. cert. denied 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendant complains of the court’s overruling his amended Motion to Quash, which raised the question of the constitutionality of Louisiana’s method of selecting women to serve on a jury. He bases this assignment of error on Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), holding Louisiana’s system of excluding women from jury venires unless they volunteered unconstitutional.

Our most recent treatment of this issue was in State v. Simmons, La., 328 So.2d 149 (1976). There we reiterated our holding that the decision in Taylor v. Louisiana is not retroactive, stating:

“At any rate, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), relied oh by defendant herein, does not apply retroactively to juries em-panelled prior to January 27, 1975, the date of the Taylor decision. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); State v. Zeno, 322 So.2d 136 (La.1975); State v. King, 322 So.2d 205 (La.1975).”

In the instant case, since the jury was selected and sworn on December 9, 1974, the Taylor decision is inapplicable.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 3, 4 AND 8

Prior to trial, defense counsel filed a Motion for Production of Evidence and Confession requesting that the State be ordered

to produce and permit the inspection of and copying or photographing by or on behalf of the defendant, all written or stenographically recorded, or otherwise recorded, alleged statements or alleged confessions, whether signed or unsigned by the defendant . . .."

In response, the State filed an answer wherein it stated:

“The State of Louisiana has no written or stenographically recorded, or otherwise recorded, statements or confessions signed or unsigned by the Defendant.
“All other items of evidence held by the State of Louisiana, consist of investigative reports and other items of evidence with which the State of Louisiana will prove its case, all of which is privileged information of the State and which is not discoverable by the Defendant under any guise.”

Defense’s objection arose when the State, in compliance with Louisiana Code of Criminal Procedure Article 768, advised the defendant in writing of its intent to introduce inculpatory statements into evidence.

At a hearing on defense’s Motion to Suppress these, statements, the special undercover agent who bought the hashish from the defendant testified as to the circumstances under which the contested statements were made:

“Q. When this transaction [the sale] was completed, Mr. Brown, what occurred at that time?
“A. Mr. Perkins voluntarily made a statement to me.
“Q. And what was that statement?
“A. He made the statement that in an answer to a question that I posed to him, how long had he been operating the station, he said approximately a month and the only reason that he had opened the station was that he could have an honest front because he felt that his dealing in dope was about to catch up to him.” (Tr. 20-21).

His testimony further revealed that on the evening of the sale, he prepared a handwritten investigative report in which he included the above statement. He then sent this report to his office in Baton Rouge, where it was typed, a copy of which was forwarded to the District Attorney’s office. The record indicates that the District Attorney’s office had this typewritten report prior to the filing of the motion for disclosure.

The defendant contends firstly that the notice of intention given him in accordance with Louisiana Code of Criminal Procedure Article 768 was untimely since the case was well into trial when the notice was given. This contention lacks substance for that article merely requires the State to notify the defense prior to the State’s opening statement. In the instant case, the State gave the notice the day before its opening statement. Hence, it was timely.

The second defense argument concerns the propriety of the court’s ruling which allowed the State to introduce the statement made by the defendant to Agent Brown. The defendant contends that since the State’s reply to the defense motion for discovery stated that it had “. . .no written or stenographically recorded, or otherwise recorded, statements or confessions signed or unsigned by the Defendant,” it should be bound by the answer and, therefore, should not be allowed to use the said statement.

Initially, we address the question of defendant’s entitlement to this statement in pre-trial discovery. Louisiana jurisprudence supports the proposition that a defendant in a criminal prosecution has no right of full pre-trial discovery. State v. Hunter, 250 La. 295, 195 So.2d 273 (1967); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966), U.S. cert. denied 388 U.S. 923, 87 S.Ct. 2144, 18 L.Ed.2d 1374 (1967); State v. Pailet, 246 La. 483, 165 So.2d 294 (1964). This Court has made exceptions for written confessions (State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945)), video-taped recordings of a confession (State v. Hall, 253 La. 425, 218 So.2d 320 (1969)), and tape recorded confessions (State v. Bendo, La., 281 So.2d 106 (1973)). However, we have repeatedly refused to extend these exceptions to include oral confessions or oral inculpatory statements. See State v. Major, La., 318 So.2d 19 (1975); State v. Watson, La., 301 So.2d 653 (1974); State v. Sears, La., 298 So.2d 814 (1974); State v. Lawrence, La., 294 So.2d 476 (1974); State v. McLeod, La., 271 So.2d 45 (1973); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972), U.S. cert. denied 410 U.S. 944, 93 S.Ct. 1378, 35 L.Ed.2d 610 (1973).

Thus, the resolution of this issue depends on the classification of the oral statement ultimately reduced to writing by the undercover agent as an oral inculpatory statement or a written inculpatory statement. In State v. Hall, supra, this Court reasoned that to constitute a written incul-patory statement, the writing must be one to which the accused himself subscribes. Under this principle, we believe that the present statement must be classified as an oral one, since at no point did the defendant subscribe to the agent’s written report. Hence, it is not subject to pre-trial discovery.

We' must next inquire whether defendant was misled to his prejudice by the State’s response to the Motion for Production of Evidence and Confession.

The leading case on this issue is State v. Boothe, La., 310 So.2d 826 (1975). In reversing the defendant’s conviction, the Court held that it was prejudicial error for the trial court to allow the State to introduce an oral inculpatory statement due to the State’s misrepresentation in its reply to defense’s motion that it had “no confession, admission or adverse statement of the defendant.” The Court reasoned that such a misrepresentation, though unintentional, caused the defense to be caught by surprise.

Defendant contends that the State’s reply, which read that it had “no written or stenographically recorded, or otherwise recorded, statements or confession signed or unsigned by the Defendant” misled defendant as to the existence of the inculpatory statement.

Unlike the State’s reply in Boothe, supra, the State’s response here did not contain unqualified language that it had no such statements. The reply before us merely states that they were not in the possession of any “written or stenographically recorded, or otherwise recorded, statements or confessions signed or unsigned by the Defendant.” This response does not imply that the State has no oral statements. We must reject defense allegations that the statement written by the special agent falls in the category of “otherwise recorded statements” for we believe that the term “otherwise recorded” used by the State referred to video-taped statements or to tape recorded statements in the light of our decisions in State v. Hall, supra, and State v. Bendo, supra.

Moreover, the State did reveal in their answer that they held investigative reports that they intended to use as evidence. It was in these very reports that Agent Brown had written the defendant’s statements. Therefore, we hold that at no time did the State violate the principles announced in State v. Boothe, supra.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 5

While Agent Danny R. Brown was on the witness stand, the defendant objected to his testifying about incidents related to his investigation of the defendant since the agent had refreshed his memory from notes not made by himself.

On re-cross examination, the witness testified that on the night of the transaction with the defendant he wrote a report of his activities in the field as he is required to do. This report was then sent to his secretary in the Narcotics’ Office. There it was typed, and a copy was sent to the District Attorney. It was from this typewritten report that the witness refreshed his memory.

The trial judge properly overruled the objection. LSA-R.S. 15:279 provides:

“A witness may be allowed to refresh his memory by reference to his testimony given on the preliminary examination, or at a coroner s investigation, or on a previous trial, or, for the purpose of refreshing his present memory a witness may examine memoranda, and it is immaterial by whom or when the memoranda were made, provided that, after such inspection, the witness can testify to the fact.”

See State v. Lewis, La., 288 So.2d 348 (1974); State v. Barnes, 257 La. 1017, 245 So.2d 159 (1971).

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 6 AND 7

These objections arose during the direct examination of Agent Brown when he explained the circumstances under which he came to know the defendant. Defendant contends that the State is bound by its Answer to the Bill of Particulars, and as such may not introduce any evidence of any occurrences prior to March 26, 1973, at 6 p. m., the time that the State in its answer pinpointed the offense.

In State v. Nance, La., 315 So.2d 695 (1975), we described the function of a Bill of Particulars as follows:

“The purpose of the bill of particulars is to more fully inform the defendant of the nature and cause of the charge against him and to provide him with sufficient information before trial to properly prepare his defense. It cannot be used, however, to secure a pre-trial disclosure of the details of the State’s evidence. State v. Rose, La., 271 So.2d 863 (1973).”

See also LSA-C.Cr.P. Art. 484, Official Revision Comment; State v. Major, supra, State v. Nelson, La., 306 So.2d 745 (1975).

The answer fixing the date and time of the offense does not have the legal effect of limiting the evidence to the exact moment of the offense.

This assignment lacks substance.

ASSIGNMENT OF ERROR NO. 9

A Bill of Exception was reserved to the ruling of the court that Raymond Cooper was qualified as an expert in the field of marijuana identification.

On direct examination, he testified that he has a B.S. degree in agronomy and a Master of Science degree in Microbiology, both received from Louisiana Tech. He has trained for two years in the Northwest Louisiana Criminalistics Laboratory under the director. Ninety-five percent of his case work has been in the identification of marijuana. Numerous courts have accepted him as an expert witness in the field of marijuana identification.

In State v. Gomez, La., 319 So.2d 424 (1975), we said:

“Whether a witness offered by one of the parties qualifies as an expert is a question of fact to be decided by the judge. He has wide discretion to accept or reject the witness’ qualifications, and his decision in the matter will not be disturbed on appeal absent manifest error. State v. Ledet, 298 So.2d 761 (La.1974); State v. Richmond, 278 So.2d 17 (La.1973); State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971).”

See also State v. Rogers, La., 324 So.2d 358 (1975), and the cases cited therein.

We find no error in the ruling of the trial judge.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS.

10 AND 11

The defendant contends firstly, that it was error to allow the two grams of hashish purchased from the defendant into evidence when a complete chain of custody had not been established, and secondly, that it was error to allow the transfer receipt issued by Mr. Cooper at the lab when he received the marijuana into evidence when a signature on it was not positively identified.

In identifying the envelope of hashish, Agent Brown testified that after the sale he placed the two clear pieces of cellophane containing the hashish in his shirt pocket. He removed them that night when he was making his report and placed them in a Louisiana State Police evidence envelope, filled out the front of the envelope and then placed the envelope in his briefcase. The next morning he submitted it to the crime lab in Shreveport. Mr. Cooper testified that it was he who received the envelope, and that upon its receipt he signed, dated, and assigned a case number to the envelope. He then signed the receipt in question. It was placed into the evidence locker until he conducted his examination. His further testimony revealed that after the tests were run, he placed the plastic containers, which also bore the number assigned the envelope and Mr. Cooper’s initials, back into the envelope, taped and stapled it, and then returned it to the evidence locker. When the envelope was retrieved from the evidence locker by Mr. Cooper, he kept it in his possession until the day before trial, when he handed it to the District Attorney.

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), U.S. cert. denied 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972), this Court stated:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
“The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Coleman, 254 La. 264, 223 So.2d 402; State v. Martin, 250 La. 705, 198 So.2d 897; State v. Bertrand, 247 La. 232, 170 So.2d 386.”

Addressing ourselves to the question of admissibility of the receipt given at the lab, we find that since Mr. Cooper testified that it was his signature that appeared on it, the receipt was admissible under the rules announced in Dotson, supra. The fact that there was no proof as to the authenticity of Agent Brown’s signature does not render it inadmissible. In our opinion, the foundation was sufficient.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant complains of the judge’s overruling his Motion in Arrest of Judgment. Since the contentions asserted in his motion are the same as those rejected in Assignments of Error Nos. 1,2, 3, 4, 6, 7, and 8, we find this assignment of error also devoid of any substance.

ASSIGNMENT OF ERROR NO. 13

Defense submits that the court erred in not sustaining his Motion for a New Trial. By this motion he argues that the State has not met the burden of proof that it is required to meet; in essence his allegation is that there is a lack of evidence to support the defendant’s conviction.

In State v. Williams, La., 310 So.2d 513 (1975), we stated:

“The motions for a new trial are without merit for the same reasons. The motions for a new trial are based on the lack of evidence to support a conviction. For appellate purposes, this does not raise a reviewable question of law unless there is a total lack of evidence to prove the crime or an essential element of it. State v. Collins, 306 So.2d 662 (La.1975); State v. Cade, 244 La. 534, 153 So.2d 382 (1963).”

After a study of the record of this case, we cannot say that there is a total lack of evidence to support the conviction.

This assignment of error is without merit.

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

DENNIS, J.,

concurs, being of the opinion that the state’s response to defendant’s request for statements may have been misleading. See State v. Boothe, 310 So.2d 826 (La.1975). However, I cannot say the majority’s interpretation is unreasonable given the present state of the law. But I believe we should comprehensively re-examine this entire area so as to formulate rules fair to the state and defense which do not depend on hair-splitting, artificial distinctions.


author: PER CURIAM:

text:
    STATE of Louisiana v. Charles FINLEY.
    No. 58337.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Bertrand De Blanc, Lafayette, for defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Research and Appeals Division, for plaintiff-appellant.
    Jack Yelverton, Executive Director, Louisiana District Attys’ Assoc., Baton Rouge, John M. Mamoulides, President, Louisiana District Attys’ Assoc., Abbott J. Reeves, Research and Appeals Division, Gretna, for amicus-curiae.
   PER CURIAM:

The Grand Jury of Lafayette Parish indicted Charles Finley for aggravated rape, a capital offense in violation of LSA-R.S. 14:42. The defendant filed a motion to quash the indictment. The motion alleged that the statute no longer contained a criminal penalty, since the United States Supreme Court had invalidated the death penalty. See Roberts v. Louisiana, 428 U.S. -, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

The trial judge quashed the indictment. On application of the State under our supervisory jurisdiction, we granted writs to review the ruling. La., 335 So.2d 35 (1976).

During the pendency of the case in this Court, the State filed a Bill of Information, charging the defendant with forcible rape, a violation of LSA-R.S. 14:43.1, based on the same incident as the quashed charge. After trial, the jury returned a verdict of not guilty.

Forcible rape is a lesser included offense of aggravated rape. See LSA-C.Cr.P. Art. 814(A)(8). Inasmuch as the defendant has been adjudicated not guilty of the lesser included offense, the aggravated rape charge is no longer viable. See LSA-C.Cr.P. Arts. 591, 596; Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); State v. Cain, La., 324 So.2d 830 (1975).

For the reasons assigned, the writs granted herein are now vacated and recalled.


author: TATE, Justice.

text:
    STATE of Louisiana, Respondent, v. Willie FRANKLIN, Relator.
    No. 57829.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Kenneth L. Riche, Dodd, Barker, Avant, Wall & Thomas, a Division of Dodd & Barker, a Law Corporation, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Doug P. Moreau, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The issue is whether a motorist is barred by a plea of guilty from raising the constitutional issue that he cannot be sent to the state penitentiary system because he was without counsel on his first two DWI convictions. We hold that, despite his plea of guilty, he may not be imprisoned at hard labor in violation of the state and federal constitutions.

On April 24, 1974, the defendant pleaded guilty to the offense of driving while intoxicated, third offense, and was sentenced to three years at hard labor (i. e., in the penitentiary). His sentence was suspended, and he was placed on supervised probation.

The issue of his actual imprisonment by reason of the conviction first arose when the state filed probation revocation proceedings. The defendant then for the first time attacked the penitentiary sentence as illegal, by filing a motion to quash and a writ of habeas corpus, La.C.Cr.P. art. 362(4) (permitting post-conviction attack if “The order for the custody, although legal in form, imposes an illegal custody”).

The sentence of imprisonment is attacked as illegal for the following reasons:

The first two convictions for driving while intoxicated occurred in 1971 and resulted in fines, in proceedings which the defendant was not represented by an attorney and had not waived his constitutional right to counsel; these uncounselled convictions cannot, under authorities to be cited, be used to enhance punishment or to cause imprisonment; the sentence at hard labor (i. e., to the state penitentiary system) imposed for the present (or alleged third) offense may be imposed only as a result of the first two convictions, since a motorist convicted of driving while intoxicated may only be sent to the penitentiary upon conviction of a third offense, La.R.S. 14:98 D.

These contentions are fully supported by the following authorities, which interpret the right to counsel in criminal prosecutions guaranteed by the state and federal constitutions as so requiring:

In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Sixth Amendment to the federal constitution was interpreted by the United States Supreme Court as requiring that, absent knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented by counsel at the trial. The decision was held to apply retroactively to uncounselled state convictions in Berry v. City of Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973).

In City of Monroe v. Fincher, 305 So.2d 108 (La.1974), this court applied the Arger-singer rationale to the imposition of progressively more severe penalties for repeat offenders convicted of driving while intoxicated. We held that, due to the substantial enhancement of penalties for subsequent conduct, which enhancement directly results from the earlier conviction (then resulting, for instance, in a mandatory penitentiary term upon a third offense), an un-counselled prior conviction could not be used to enhance punishment upon conviction of a subsequent offense.

In State v. Strange, 308 So.2d 795 (La.1975), we reiterated this ruling, further stating, 308 So.2d 796—97:

“Our holding in Fincher is consonant with those of the United States Supreme Court with regard to the effect of an uncounselled conviction upon the application of the multiple-offender enhanced-punishment statutes. Burgett v. Texas, 398 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526 (1966). To permit an uncounselled conviction to enhance punishment for a subsequent offense is to erode the constitutional right to counsel and, in itself, constitutes a denial of the Sixth Amendment right. Burgett at 389 U.S. 115, 88 S.Ct. 262.
“Here, the uncounselled first conviction is a direct cause of the greatly enhanced punishment to which the accused is subjected by the present prosecution. Therefore, under our holding in Fincher, it cannot constitutionally be classified as a prior conviction for purposes of the present prosecution as third offender. See also City of Monroe v. Coleman, 304 So.2d 332 (La.1974).”

Thus, the first two uncounselled convictions cannot be used to cause imprisonment which otherwise would not result. Such imprisonment is unconstitutional and invalid by reason of the provisions of our state constitution guaranteeing the right to counsel in criminal prosecutions, Louisiana Constitution of 1974, Article 1, Section 13, as well as by reason of the federal Sixth Amendment.

The state does not dispute the constitutional invalidity of the present penitentiary sentence, if its invalidity had been raised prior to the defendant’s plea of guilty of April 24, 1974, at which time he was represented by counsel. The state solely contends that the issue of the unconstitutionality of the sentence at hard labor cannot now be raised, because the plea of guilty waives all defects in the proceedings prior to the plea. State v. Barber, 262 La. 443, 263 So.2d 719 (1972).

We cannot accept the state’s contention.

In the first place, the illegality of a sentence may be attacked at any time. La.C.Cr.P. art. 882; La.C.Cr.P. art. 362(4).

In the second place, a plea of guilty does not waive defects which, even conceding the accused’s factual guilt, do not permit his punishment for the offense charged. Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). See also State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974).

In Blackledge v. Perry, cited above, the accused pleaded guilty to a felony. By reason of double jeopardy protections, the constitutional maximum punishment he could receive for the offense was as for a misdemeanor. Despite the defendant’s plea of guilty, our nation’s high court held that he could by post-conviction proceedings attack the plea’s resulting in a penitentiary sentence, partially because the sentence exceeded the maximum constitutionally permissible. 417 U.S. 31, 94 S.Ct. 2104.

We thus do not find merit in the contention of the state that the plea of guilty bars any attack upon a sentence which, upon revocation of probation here sought, will result in the actual imposition of a sentence to the penitentiary system in violation of our state constitution.

Accordingly, the defendant is entitled to have the penitentiary sentence set aside. Although the conviction (by plea of guilty) is not disturbed, no imprisonment now imposed for the offense may exceed that permissible for conviction of a first counselled conviction, see La.R.S. 14:98 A.

The case is therefore remanded to the district court for it to set aside as unconstitutional the sentence of imprisonment at hard labor originally imposed, and for it to re-sentence the defendant in accordance with law and consistent with the views expressed above.

UNCONSTITUTIONAL SENTENCE SET ASIDE; CASE REMANDED FOR RE-SENTENCING.

SANDERS, C. J., and MARCUS, J., dissented.


text:
    STATE of Louisiana, Appellee, v. Nathan HILLS, Appellant.
    No. 57842.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    John M. Lawrence, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Joseph Meyer, Jr., Asst. Dist. Attys., for plaintiff-ap-pellee.
   TATE, Justice.

The defendant was convicted of second degree murder, La.R.S. 14:30.1 (1973), and sentenced to life imprisonment. Upon his appeal, he makes five principal arguments of error. We find no reversible merit to any of them and therefore affirm.

The defendant’s arguments found by us to be without merit concern:

1. Pre-Trial Discovery (Assignments 2 and 3): The defendant sought disclosure of details of the state’s evidence by motions for a bill of particulars and for oyer. Under applicable jurisprudential interpretations, he was not entitled to obtain same. State v. Thomas, 290 So.2d 317 (La.1974). Further, the evidence at the trial does not show that the state introduced any evidence of the nature sought.

2. Voluntariness of .the Defendant’s Confession (Assignments 5 and 9): The chief contention is that the defendant was allegedly beaten and therefore confessed.

The defendant was arrested about 5:30 a. m., arrived at the police station about 5:45 a. m., and his statement was taken commencing about 6:00 a. m. and concluding about 6:45 a. m.

We find no error in the trial court’s accepting as credible the testimony of the two officers, who were with the defendant from his arrest until his statement was taken, that his statement was voluntarily made without coercion. Corroborative of this evidence is the testimony of Peter Lewis, who was arrested and indicted for the same crime at the same time, and who shared the same cell. Lewis testified that the defendant told him immediately after-wards that he had signed a confession, without mentioning at the time anything about a beating to his cellmate and friend.

The trial court evaluated such testimony as credible and rejected that offered by the defendant (his own, his girlfriend’s, and the record of a self-serving statement he had made to a prison official). This credibility-evaluation is entitled to great weight and will not be disturbed on review unless clearly erroneous. State v. Hall, 257 La. 253, 242 So.2d 239 (1970).

3. Pre-Trial Lineup (Assignment 6): No in-court identification testimony was produced, since the witnesses could not identify the murderers. The defendant fails to allege or show any prejudice suffered by him by the failure to afford him a pre-trial lineup.

4. Failure to Afford Pre-Trial Notice of Inculpatory Statements Introduced at Trial (Assignments 7 and 8): The defendant’s first trial ended in a mistrial. Prior to it, the prosecutor gave him the written notice specifying the inculpatory statements the state intended to introduce at the trial, as required by La.C.Cr.P. art. 768. See State v. Sneed, 316 So.2d 372 (La.1975).

The defendant contends that the state should have given him the notice again before the present (or second) trial.

However, the defendant by the earlier notice was fully and particularly put on notice of the state’s intent to use such evidence. We do not find Article 768 to require more than such adequate notice, nor that a second notice reiterating the state’s obvious intent to use such evidence is technically required by the Article, cf., State v. Banks, 307 So.2d 594 (La.1975), nor that the defendant was prejudiced in any respect by any failure to reiterate the notice previously given.

5. Denial of a Speedy Trial (Assignment 10): The defendant was indicted March 20, 1975, first tried on October 3, 1975 (within seven months of the indictment), then (after the first trial ended in a mistrial) re-tried and convicted on November 10, 1975 (within eight months of the indictment). Aside from adequate reasons indicated by the record for this comparatively slight delay, no showing is made of prejudice or of violation of any speedy-trial rights of the accused. See State v. Bullock, 311 So.2d 242 (La.1975) and Barker v. Win- go, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Alvin PHILLIPS.
    No. 57856.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On January 4, 1974 the defendant, Alvin Phillips, sold five “papers” of heroin for $60.00 to an agent of the Drug Enforcement Administration. Subsequently the defendant was arrested and indicted for the crime of distribution of heroin, a violation of R.S. 40:966. The defendant was tried before a jury, convicted and sentenced to life imprisonment.

Although the defendant submitted four assignments of error to the trial court, assignments three and four have neither been briefed nor argued and are deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

Assignment of Error No. 1

After the close of the trial, the defendant filed a motion for a new trial based on the allegation that error was committed at the conclusion of the case when the trial court did not afford defense counsel an opportunity to poll the members of the petit jury. The trial judge denied the motion for a new trial and the defendant objected to that ruling.

The record is silent as to any request made by the defendant to poll the jury and as to any denial of the request by the trial judge. Since no request for a polling was made and the defendant made no contemporaneous objection to the lack of a polling, this matter cannot be considered on appeal. C.Cr.P. 812, 841.

Assignment of Error No. 2

The defendant also filed a supplemental motion for a new trial on the ground that the trial judge erred in not permitting defense counsel to mention to the jury that if the defendant was convicted as charged, the penalty would automatically be life imprisonment. The trial judge denied the motion and defense counsel objected to that ruling.

The record is silent as to any request by defense counsel to so advise the jury and as to any denial of such a request by the trial judge. Since no contemporaneous objection was made by the defendant to the alleged error, it cannot be considered on appeal. C.Cr.P. 841.

Accordingly, the conviction and sentence are affirmed.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Jimmy Dale McCRAY.
    No. 57899.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Stephen R. Burke, Minden, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., R. Harmon Drew, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Jimmy Dale McCray was indicted by the grand jury for the Parish of Webster for the armed robbery of Mrs. S. H. Martin and Mrs. Loretta Dodson, employees of Quick-Sak Grocery in Springhill, Louisiana, Webster Parish, on January 21, 1974 in which approximately $650 in cash was taken in violation of La.R.S. 14:64. A jury found McCray guilty and he was thereafter sentenced to thirty years at hard labor. On appeal, he relies upon five assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 2.

Defendant asserts that the trial court erred in not allowing the introduction, at the hearing of the motion to suppress, of the full extradition proceeding (assignment number one) and in refusing to allow him to take the witness stand at the suppression hearing for the limited purpose of testifying with reference to the identification circumstances surrounding the extradition-ha-beas corpus hearing held in Chicago, Illinois on August 5, 1975 (assignment number two).

Defendant was taken into custody in Chicago, Illinois on or about April 8, 1975. On August 5, 1975, the victims of the robbery (Mrs. Martin and Mrs. Dodson, her daughter-in-law), were taken to Chicago for the extradition hearing where they identified defendant as the perpetrator of the armed robbery. Previously, some twelve hours after the offense which occurred on January 21, 1974, they had identified defendant from photographs submitted to them. Another witness, Lewis McCray who identified defendant and had known defendant all of his life, saw defendant running to his car parked on the roadway as he left the Quick-Sak after the robbery.

By motion, defendant sought suppression of all identification by the victims (photographic and at the extradition hearing) and by Lewis McCray. The latter neither viewed photographs nor was at the extradition-habeas corpus hearing in Chicago. At the hearing of this motion, defense counsel sought to introduce xerox copies of the transcript of the Chicago extradition-habeas corpus hearing. This request was correctly denied for the stated reason (in the trial judge’s per curiam) that copies were not admissible for “there was no proper certification by the Illinois court.” Defendant’s reliance upon La.R.S. 15:459 is misplaced for that statute allows introduction, during the trial of any criminal case by either party, of a record belonging to the court in which the trial is proceeding, It does not sanction, without proper certification, the records of the court of another state. According to the record, defense counsel had some two months to secure the certified copy of the extradition hearing for introduction at this suppression hearing and offered no excuse for his lack of diligence.

Furthermore, even if the transcript of the extradition hearing should properly have been admitted, we can find no prejudice to defendant from the exclusion of that transcript. The transcript is attached to plaintiff’s brief and we have reviewed same. It offers defendant no assistance in his effort to establish that there was an impermissibly suggestive identification at the extradition hearing. About all that it does establish is the positive nature of the identification of defendant as perpetrator of the robbery by the victims thereof who testified at the extradition hearing.

Assignment of error numbered one lacks merit.

The second contention refers to the following. At the suppression hearing defendant sought to take the stand for the limited purpose of testifying with reference to what occurred at the extradition hearing held in Chicago. The motion to suppress identification which was before the court at the time was an attack not only upon the identification at the extradition hearing in Chicago, but upon the photographic identification by the two victims approximately ten hours after the armed robbery. The suppression motion was also an attack upon the right of the state to present the independent witness, Lewis McCray, to testify at trial. With respect to the latter, the witness McCray was simply a person who had seen defendant Jimmy Dale McCray leaving the store at the time of the robbery and crossing the street in the path of his truck, the defendant being a man whom the witness had known all of his life. This witness was not involved in any way in either the post-incident photographic identification or the Chicago extradition hearing. Inasmuch as all of these matters were properly subject to court inquiry on the motion to suppress identification, it was proper that the defendant not be permitted to testify exclusively as to what occurred at the extradition hearing held in Chicago.

Assignment of error number two therefore is without merit.

ASSIGNMENT OP ERROR NO. 3.

Defendant assigns as error the refusal of the trial judge to suppress the in-eourt identification of him by the two victims, claiming that these identifications were based upon alleged pre-trial identification irregularities.

Specifically, defendant seeks to have it appear that the circumstances of the identification at the Chicago hearing amounted to an in-court, one-man show-up which was in fact a one-on-one identification. This is alleged to be so suggestive as to taint the subsequent in-court identification. Defendant relies, inter alia, upon State v. Newman, 283 So.2d 756 (La.1973). Additionally, defendant contends that the victims made a tentative identification from photographs which were not preserved. They had been brought from Arkansas and returned to the Arkansas authorities and were not introduced at trial. Error is claimed in allowing the officers to testify as to this photographic lineup when the photographs were not available, citing State v. Asher, 294 So.2d 223 (La.1974).

The ruling allowing the in-court identification, under the facts presented, was not error as there was no “taint” prior thereto. There is nothing to suggest that the photographs submitted to the victims some twelve hours after the robbery were impermissibly suggestive. Each victim identified defendant from these photos independently of the other and without suggestion of any kind. From five to six photographs were secured from Arkansas authorities and submitted to them. According to Deputy Bloxom, he secured pictures of similar looking black men for this display. At the extradition hearing, both victims identified the defendant immediately when he came through the door of the courtroom. The contention that this was a one-man, one-on-one confrontation is simply not supported by the record. The courtroom was not empty at the time. According to Blox-om, who was present at the extradition hearing, when they entered, there were probably 40 or 45 people in the courtroom.

Assignment of error number three lacks merit.

ASSIGNMENT OF ERROR NO. 4.

Defendant objected to the trial judge allowing Marshal Kenneth Creech of Stamps, Arkansas, to testify complaining that this witness was not sequestered as requested in accordance with article 764 of the Code of Criminal Procedure.

All witnesses present were put under the rule when the sequestration was ordered. At this time, Marshal Creech was not present and had not yet arrived in Minden. When defendant finished testifying, around 3:30 in the afternoon, the state called Creech in rebuttal. It was ascertained that Creech had arrived at 1:30. The judge questioned him, and it was established that, while he was in the building since that time, he had not been in the courtroom, had not talked to any of the witnesses and had only conversed with the prosecuting attorney. The court found him qualified to testify, noting that had he been placed under the rule, he would still be allowed to talk to attorneys for either side; hence, no harm was suffered by defendant.

The rule providing for sequestration of witnesses at trial is contained in article 764 of the Code of Criminal Procedure. It recites:

“Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

The purpose of this article is to prevent the influence of a witness by the testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts. Article 764 vests discretion in the trial judge as to the disqualification of a witness even when the rule of sequestration has been violated. State v. Batts, 324 So.2d 415 (La.1975). It is within the sound discretion of the trial court to determine whether a witness who is not placed under a sequestration order, or who violates an order of sequestration, may testify. State v. Nix, 327 So.2d 301 (La.1975); State v. Washington, 294 So.2d 794 (La.1974).

Under the circumstances presented, the trial court did not abuse this discretion. The trial judge ascertained by questioning that Creech had not conversed with any witnesses, had not been in the courtroom, and had only talked to the prosecuting attorney. Consequently, assignment of error number four presents no error.

ASSIGNMENT OP ERROR NO. 5.

The complaint in assignment of error number five is twofold. Defendant says that the prosecuting attorney “made certain prejudicial remarks to the jury which could not help but prejudice their mind against defendant,” specifically alluding to only one objection by defendant, which had to do with the prosecutor’s stating that defense counsel was paid to represent defendant and to have reasonable doubt as to his client’s guilt.

In response the trial judge did not overrule the objection; rather, he admonished the jury to disregard remarks by both counsels that were related to compensation.

The comment by the district attorney came in rebuttal argument after defense counsel had stated his personal opinion as to the innocence of the defendant. Neither that statement of defense counsel, nor the objected-to statement of the prosecutor, constitute proper argument. On the other hand, there was no reversible error committed since the trial judge, in response to defense counsel’s objection, properly admonished the jury to disregard such comment.

The second aspect of defendant’s assignment of error number five was purported error in the trial court’s refusing to grant a mistrial upon motion of defense counsel.

Counsel was dissatisfied with innumerable statements that the prosecutor made in closing argument which he contends constituted prejudicial remarks particularly those statements made by the prosecutor referring to defendant’s race. To these statements counsel did not object during argument. He waited until after the jury had been instructed on the law and the case submitted to them before moving for a mistrial. We have reviewed each of the complained of statements made by the district attorney and find no merit to the assignment. The most serious complaint raised by defense counsel concerns the purported prejudicial reference to race. Article 770 of the Code of Criminal Procedure does, of course, require that a mistrial be ordered upon motion of the defendant when the district attorney makes a remark or comment referring directly or indirectly to race if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury. Our review of the prosecutor’s argument leads us to conclude that he did not make an immaterial and irrelevant reference to race which might have created prejudice against this defendant in the mind of the jury.

His statements referred to the fact that two witnesses saw a black man in green overalls running up the right side of the street. At trial, the victims testified that they were robbed at gunpoint by a black man wearing green coveralls or overalls. Mike Crews and his passenger, Mrs. Montgomery, testified at trial that they were passing in the vicinity of the offense when they saw a black man in green overalls running on the side of the street. The prosecutor was relating the fact that the testimony of these witnesses corroborated the description given by the victims. It was in direct reference to the identity of the robber and not stated for the purpose of appealing to prejudice as prohibited by article 774.

Assignment of error number five lacks merit.

For the foregoing reasons the conviction and sentence are affirmed.

DIXON, J., concurs.

      . It does not appear that the copy of the extradition hearing transcript offered by defendant was part of the district court’s records in this case. Were that the case, R.S. 15:459 might well be applicable even with the transcript being uncertified.

      . Specifically Mrs. Dodson, one of the two victims, testified at the suppression hearing as follows:
      “Q. Mrs. Dodson, did anybody point this man out to you in Chicago.
      A. No, in fact, the man before we even went into the courtroom had told us to look around the courtroom and see if we could pick him out. Well, we did and we couldn’t pick out anyone sitting in the courtroom and even in the courtroom the man came and told us to go out one at a time and look at everyone even in the hallway to see if we could pick him out and we did and we could find no one that we thought was the man but immediately when he walked in the door we said in unison almost that that’s him.”


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Darryl VEAZEY.
    No. 57905.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledte, Asst. Atty. Gen., J. Nathan Stans-bury, Dist. Atty., Richard J. Putnam, Jr., Asst. Dist. Atty., for plaintiff-appellant.
    J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for defendant-appellee.
   MARCUS, Justice.

Darryl Veazey was indicted by the grand jury for the Parish of Vermillion for having committed the crime of carnal knowledge of a juvenile in violation of La.R.S. 14:80. The defendant moved to quash the indictment on the ground that the statute under which he was charged discriminated between persons similarly situated on the basis of sex, thereby violating the equal protection clauses of the federal and state constitutions. After taking the matter under advisement, on September 16,1975, the trial judge sustained the defendant’s motion and quashed the indictment. This ruling was recorded in the minutes of the court on October 24, 1975. On March 4, 1976, the state, pursuant to La.Code Crim.P. art. 912, subd. B(l), applied for and was granted an appeal to this court from the adverse ruling of the trial judge.

The state contends that the trial judge erred in ruling unconstitutional La.R.S. 14:80 which penalizes anyone over the age of seventeen for having sexual intercourse with an unmarried female over the age of twelve but under the age of seventeen. We do not, however, reach the merits of this contention since we are in agreement with the motion of the defendant, filed in this court, to dismiss the appeal on the ground that it is not timely.

The state’s motion for an appeal was made on March 4, 1976, over four months after the order to quash the defendant’s indictment was recorded in the minutes of the court. The state argues, in reply to the defendant’s motion to dismiss, that its appeal was timely inasmuch as it was taken within fifteen days of the date on which it received written notice of the trial judge’s ruling.

La.Code Crim.P. art. 914 provides as follows:

A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion must be made no later than fifteen days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the court. (Emphasis added.)

It is the state’s contention that when a matter is taken under advisement, written notice of the judgment or ruling subsequently rendered should be sent to the interested parties. The state further argues that the time for appealing from such judgments or rulings should commence running only from the date of receipt of notice thereof. We are asked to engraft these rules, borrowed from the Code of Civil Procedure (Code Civ.P. arts. 1911, 1913 and 2123), onto the clear statutory language of Code Crim.P. art. 914. This we cannot do. While the provisions suggested by the state might indeed prove beneficial supplements to the Code of Criminal Procedure, that is a matter which addresses itself to the legislature. In the absence of statutory authority to the contrary, we will continue to follow the directive of article 914 that motions for appeal must be made no later than fifteen days after the rendition of the judgment or ruling from which the appeal is taken. The state’s reliance on our decision in State v. Sandoz, 258 La. 297, 246 So.2d 21 (1971) is misplaced. In that case, we applied the notice provisions and time limit for taking an appeal embodied in the Code of Civil Procedure because we found a proceeding questioning the cancellation of a bond forfeiture to be in the nature of a civil appeal. Any remarks made concerning the timeliness of the appeal under Code Crim.P. art. 914 were, therefore, unnecessary to the decision of the case and constituted dicta not binding on this court. Since the appeal in the instant case is purely criminal in nature, we' adhere to the clear statutory language of article 914 and accordingly find that the state’s motion for an appeal was not timely.

In oral argument before this court the state has urged that we, in the interest of equity, grant an out-of-time appeal to consider the merits of the case. The record reflects that the state did not make inquiry as to the disposition of the defendant’s motion to quash his indictment until February 23, 1976, over five months after the matter was taken under advisement. Moreover, affidavits attached to the defendant’s motion to dismiss demonstrate that on November 12, 1975, the district attorney was apprised of the disputed ruling of the trial judge when that ruling was cited to an assistant district attorney in support of a similar motion filed in another case. Hence, although there may be instances in which we would be justified in granting the request of the state for an out-of-time appeal, we are satisfied that the facts in this ease do not support the state’s prayer for equitable relief from the time limit for taking an appeal set out in article 914 of the Code of Criminal Procedure.

DECREE

For the reasons assigned, the defendant’s motion to dismiss the appeal is granted; the appeal is dismissed.

      . La.Const. art. V, § 5(D)(1) provides for an appeal to this court from pre-conviction rulings which declare a law or ordinance of this state unconstitutional.


author: MARCUS, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Jerry A. DIXON.
    No. 57915.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Fred A. Blanche, III, Baton Rouge, Gerald A. Bosworth, Howma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard E. Chaffin, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Jerry A. Dixon was charged by bill of information with possession of a controlled dangerous substance, to-wit: heroin, in violation of La.R.S. 40:966(C). After trial by judge, he was found guilty as charged and was subsequently sentenced to serve four years at hard labor with credit toward the sentence for time spent in actual custody prior to imposition of sentence. On appeal the defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant contends that the trial judge erred in overruling his motion to suppress certain physical evidence consisting of a plastic baggie containing tin foil packets filled with heroin which was seized from the front seat of the defendant’s automobile. He argues that the seizure constituted a warrantless search conducted without probable cause.

The testimony at the hearing on the defendant’s motion to suppress evidence reveals that on or about January 21, 1975, Officer Charles Bailey received information from a confidential informant who had on previous occasions supplied information which resulted in prosecutions. The informant advised Officer Bailey that a quantity of narcotics would soon be brought into the Baker area by Brady McDaniels, Mike Terrell, and the defendant Jerry Dixon. On January 24, 1975, the informant again contacted the officer and told him that a “trip” would be made in a Dodge Charger. He said he would call back when the car carrying the narcotics returned to town. The following morning at about 9:00 a. m. the informant notified Officer Bailey that the narcotics had arrived and that they would be moved in the Dodge Charger. He also said that he had seen the illegal drugs and that when moved they would be wrapped in cellophane paper and located either in the automobile’s console, between the seats, or on the person of Jerry Dixon. With the assistance of the East Baton Rouge Sheriff’s Office, a three unit surveillance was set up. One unit, manned by Officer Doer-ner, was assigned to watch the residence where the Dodge Charger belonging to Jerry Dixon was parked. Two other units were stationed at a golf course parking lot about a quarter of a mile away. At about 11:00 a. m. Officer Doerner radioed the other surveillance units that two white males had entered the Charger and were driving away. The vehicle was “picked up” as it proceeded along Louisiana Highway 19 and followed by the three police units. When Dixon turned into a roadside hamburger stand, the police cars pulled into the parking lot on either side and behind his vehicle. The officers immediately identified themselves as the police. Officers Fourrier and Barnette approached the passenger side of the Charger. As they did so, they observed Dixon move his hand behind himself on the seat of the car. Officer Fourrier testified that this motion alerted him to the possibility that the suspect might have a weapon. Officer Barnette, who had preceded Officer Fourrier by a few steps, opened the door of the Charger, got Dixon out of the vehicle, and instructed him to turn around and put his hands on the car. While Officer Fourrier conducted a limited weapons pat-down of the defendant, Officer Barnette, who was still standing in the open doorway of the Charger, glanced down and observed a plastic baggie on the seat of the automobile in the area where the defendant had been seated. He testified that it was in “plain view” and that he could see that it contained small folded tinfoil squares which, from his training and experience, he recognized as packets of heroin. The officer seized the package and, after examining its contents, the defendant and his companion, Mike Terrell, were placed under arrest.

The right of law enforcement officers to temporarily detain and interrogate persons reasonably suspected of criminal activity is recognized by La.Code Crim.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Cook, 332 So.2d 760 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). We have held that reasonable cause for an investigatory detention is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Weathers, 320 So.2d 892 (La.1975).

The officers in the instant case had reliable information that the defendant would be transporting narcotics in the Dodge Charger. The informant was known to Officer Bailey personally and had provided him with information in the past which had led to prosecutions. It is clear that, under circumstances such as these, an informant’s tip can provide reasonable cause to detain and question a suspect. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Whether or not the officers in the case may have also had probable cause to make a warrantless arrest or search, we are satisfied that the information given by the informant carried with it enough indicia of reliability to justify the officers in making an investigatory stop. Moreover, since the movements of Dixon indicated that he might have a weapon, the officers were equally justified in removing him from the car and conducting a limited weapons pat-down. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When the defendant exited the Charger, he thereby exposed a plastic baggie filled with packets of heroin.

It is well settled that objects falling within the plain view of an officer who had a right to be in a position to have that view are subject to seizure and may be introduced into evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). The “plain view” doctrine is properly applied when a police officer inadvertently comes across incriminating objects at a time when he is not searching for evidence against the accused. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

We are convinced that the facts of this case demonstrate that Officer Barnette had a right to be standing in the doorway on the passenger side of the Dodge Charger and that he was justified in asking Dixon to get out of the automobile to undergo a limited weapons search. The evidence thereby exposed on the seat of the vehicle fell into the officer’s plain view. Accordingly, we find that the evidence was lawfully seized and therefore admissible against the defendant at trial on the merits. The trial judge did not err in overruling defendant’s motion to suppress the evidence. There is no merit to this assignment of error.

DECREE

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

DIXON, J., concurs with reasons.

CALOGERO, J., concurs in the result.

DENNIS, J., concurs.

DIXON, Justice

(concurring).

There was probable cause for the search and seizure.