author: SANDERS, Chief Justice. CALOGERO, Justice, PER CURIAM: TATE and DENNIS, Justices,

text:
    STATE of Louisiana v. Bernard FRANCIS.
    No. 58466.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    On Rehearing May 16, 1977.

      Dominic J. Gianna, New Orleans, of counsel, Robert E. Leake, Jr., Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendant-appellant.
    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-appellee.
   SANDERS, Chief Justice.

A bill of information charged the defendant, Bernard Francis, with the distribution of heroin, a violation of LSA-R.S. 40:966. A jury found the defendant guilty as charged. The defendant received the mandatory life sentence.

The defendant appeals, relying on six assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The defendant avers that the trial judge improperly admitted State’s exhibits 1, 2, 3, 4, and 5 into evidence as the State failed to establish a proper chain of custody. These exhibits consist of an open lock-sealed envelope in which the undercover agent placed the substance obtained from the defendant (S-l), an open mailing envelope in which the undercover agent placed S-l for mailing (S-2), a closed lock-sealed envelope in which the chemist placed the substance obtained from the defendant after testing (S — 3), a registered return receipt (S-4), and a registered receipt requested form (S-5).

When the State introduced S-4 and S-5 into evidence, defense counsel stated “I will not object to either one.” (Tr. p. 77). Thus, the defense waived any complaint on appeal relative to the admission of S-4 and S-5. LSA-C.Cr.P. Art. 841.

At trial, defense counsel made the following objection to the admission of S-l, S-2, and S-3:

“I object to the introduction of the evidence, because I don’t think the chain of evidence is complete as to Mr. Wein [Mr. Wener], who received it allegedly has not testified.” (Tr. p. 77).

In brief, the defendant expands his argument to include several other grounds to support his basic contention. The purpose of an objection is to apprise the trial judge of the specific basis for the complaint, so that the trial judge can intelligently rule on the complaint and take corrective action, when necessary. See State v. Nicolaus, La., 340 So.2d 296 (1976). Since the objection made at trial only apprised the judge of one specific ground for objection, the judge had no opportunity to rule on the additional grounds. These additional grounds cannot be raised for the first time on appeal. LSA-C.Cr.P. Art. 841; State v. Rossi, La., 273 So.2d 265 (1973); State v. Jones, 250 La. 1007, 201 So.2d 105 (1967).

The only issue properly before us is whether the failure of the State to call Mr. Wener to testify rendered the tangible evidence inadmissible because of a faulty foundation.

Undercover Agent Logan testified that he purchased a plastic bag bound by a green rubber band containing 24 tin foil packages of powder from the defendant at 4909 St. Claude Avenue. He then brought the bag to the New Orleans Regional Office of the Drug Enforcement Administration. There he weighed it, logged it, and initialed the original containers. He sealed the entire package in a lock-sealed envelope (S-l). He then placed this envelope into a larger envelope (S-2) and sent it by registered mail to the Southeastern Regional Laboratory in Miami. Agent Logan identified S-l from his signature which appears across its flap on the back and S-2 by the registered mail number assigned by the post office. (The registered mail number on S-2 corresponds to the number on S-5, the registered receipt requested form.)

Mr. Owensby, a special agent with the Drug Enforcement Administration, testified that he witnessed Agent Logan prepare the substance obtained from the defendant for mailing. He assisted in this preparation by signing his name across the seal of the envelope carrying the substance (S-l). He identified the lock-sealed envelope designated as S-l by his signature which appears on its back.

Mr. Arnold, a forensic chemist at the laboratory, testified that Mr. Wener, the supervisory chemist, received the envelopes in the mail. Arnold based this conclusion on the fact> that Wener’s initials appear below the date stamp embossed on both S-l and S-2. Arnold could identify Wener’s initials and signature, since he has seen them approximately six times a day for six years. In addition, Wener’s signature is on S-4 as the addressee’s agent.

Mr. Arnold additionally testified that he received the S-l envelope intact and the S-2 envelope opened and emptied. He opened S-l and found 24 packets, each containing a powder. After conducting five different tests on 14 random packets, he then tested the composite. Each test revealed the presence of heroin. Arnold then placed the packets and the powder into a locked sealed envelope (S-3). He locked and sealed the envelope, put his name and the date he performed the analysis on its back. He stapled all three envelopes, S-l, S-2, and S-3 together and gave it to the evidence custodian. The custodian placed it in the vault. Arnold could recognize S-l, S-2, and S-3 as the envelopes he handled by his signature or initials on each. Arnold further testified that S-3 was in the same condition as when last he examined it, unopened.

No witness positively traced the location of the evidence in question from the' time the custodian placed it in the vault until the trial. On the morning of the trial Agent Logan gave the evidence to Mr. Arnold.

The condition of the physical evidence, S-l, S-2, and S-3, corroborates the details of the above testimony.

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), we stated: 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.

“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 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.

“The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury. State v. Wright, 254 La. 521, 225 So.2d 201; State v. Whitfield, 253 La. 679, 219 So.2d 493; State v. Progue, 243 La. 337, 144 So.2d 352; 2 Wharton’s Criminal Evidence (12th ed.), § 673, p. 617.”

See also State v. Perkins, La., 337 So.2d 1145 (1976); State v. Jones, La., 332 So.2d 466 (1976).

Here, the failure of the State to call Mr. Wener to testify does not render the evidence inadmissible. The foundation meets the above standard, and .the evidence was properly admitted at the trial.

ASSIGNMENT OF ERROR NO. 2

At the close of the State’s case, the defense made two motions. The first was a motion for a directed verdict based on the allegation that since the State did not introduce the heroin, it fell short of the requisite burden of proof. The second was a motion to quash based on the contention that the State breached its commitment with the defendant to nolle prosequi the charge if the heroin was not located. The defense assigns as error the trial court’s denial of both motions.

When the defense asserts that the trial judge committed reversible error in denying his motion for a directed verdict, this Court will overturn the conviction only if there is no evidence of the crime or an essential element thereof. State v. Smith, La., 332 So.2d 773 (1976); State v. Butler, La., 331 So.2d 425 (1976); State v. Kaufman, La., 331 So.2d 16 (1976).

Agent Logan testified that he received 24 packets of powder wrapped in tin foil contained in a plastic bag which was fastened with a green rubber band. He mailed this to Miami. The analysis conducted by a chemist in Miami revealed that this substance was heroin. The chemist further testified that he placed the substance tested into a lock-sealed envelope designated S-3, and sealed it. At trial he identified S-3 as this envelope. The envelope remained in the same condition at trial as it had when placed in the laboratory vault.

The defense contends that the heroin was not specifically introduced, but only the envelope (S-3), itself. When the State mentioned S-3, undoubtedly the reference was both to the envelope and its contents. (Tr. p. 18). For the formal admission of S-3, there was no mention of either the envelope or its contents. (Tr. p. 77).

The S-3 envelope holds a sealed plastic sleeve. Taped on the outside of the sleeve is a green rubber band and a Bureau of Narcotics and Dangerous Drugs evidence sticker. The signature of Agent Logan, the date the agent seized the evidence, and the case number appear on the sticker. This number corresponds to the number displayed on both the S-l and the S-3 envelopes. The initials of Mr. Arnold, the chemist, and the evidence number also appear on the outside of the sleeve. The same evidence number is on S-l, S-2, and S-3. Inside the plastic sleeve is another plastic bag which contains a brown powder and several tin foil squares. Mr. Arnold’s initials and the evidence number are on this plastic bag.

We conclude that there is some evidence of the crime charged.

The defendant further argues that the trial judge improperly overruled his motion to quash which was grounded on the argument that the State breached its commitment with the defendant to dismiss the charge if they were unable to locate the evidence.

The trial judge properly overruled this motion for the following reasons: the ground urged is not a legal ground for the granting of the motion (LSA-C.Cr.P. Arts. 532 and 534), the motion was untimely (LSA-C.Cr.P. Art. 535), and finally, the defense failed to submit the motion in proper written form (LSA-C.Cr.P. Art. 536). See State v. Shezbie, La., 332 So.2d 243 (1976); State v. Lewis, 255 La. 623, 232 So.2d 294 (1970).

Moreover, as shown above, the State possessed the tangible evidence and tendered it at the trial. Hence, on the merits, the motion to quash is unfounded.

ASSIGNMENT OF ERROR NO. 3

The defendant assigns as error the lower court’s denial of his motion for a new trial. This motion was based on the ground that the court erred in denying the motion for a directed verdict.

Louisiana Code of Criminal Procedure Article 853 provides in pertinent part:

“A motion for a new trial must be filed and disposed of before sentence.”

The record reveals that the court sentenced the defendant on November 27, 1974, and that the defendant filed his written motion for a new trial on December 2, 1974. As this motion was untimely, the trial judge properly denied it. See State v. Navarre, La., 289 So.2d 101 (1974); State v. Arnold, 259 La. 139, 249 So.2d 552 (1971).

Moreover, for the reasons outlined in Assignment of Error No. 2, we conclude there is some evidence of the crime charged.

ASSIGNMENT OF ERROR NO. 4

The defendant asserts that the trial court improperly denied his motions for a directed verdict and a new trial on the ground that the State breached its formal commitment to the defense to nolle prosequi the charge if the State failed to locate the evidence.

As we have concluded in Assignment of Error No. 2, this contention is without merit.

ASSIGNMENT OF ERROR NO. 5

The defendant argues that the continuance granted by the trial court violated Louisiana Code of Criminal Procedure Article 708 in that the court granted it after the trial had begun.

Article 708 prohibits the granting of a continuance subsequent to the beginning of trial. This contention, however, is not viable on appeal. The defendant not only failed to object at trial, but also joined the State in the request for the continuance. LSA-C.Cr.P. Art. 841; State v. Nance, La., 315 So.2d 695 (1975); State v. Lewis, supra.

ASSIGNMENT OF ERROR NO. 6

In two supplemental briefs the defendant urges that State v. Ford, La., 338 So.2d 107 (1976) warrants reversal of his conviction. This Court overturned Ford’s conviction because the court reporter neglected to record the entire trial as prescribed in Louisiana Code of Criminal Procedure Article 843.

The record contains the following certificate made by the trial court reported:

“I, Ellis M. Gill, Official Court Reporter, hereby certify that I have carefully perused my shorthand notes of October 9, 1974;
“That no objections were noted by counsel for defense during voir dire examination, opening statement by the State, closing argument by the State, charge to the jury or polling the jury in the above named and numbered matter;
“That normal procedure for transcript on appeal in Criminal District Court is to excerpt objections taken by counsel for defense, except of witnesses under oath, during the trial on the merits;
“That in Section ‘A’ of the Criminal District Court all of the aforementioned trial proceedings are recorded, including rebuttal argument by the State.”

The defendant requested that the entire record of the proceedings, the transcript of the trial, and the exhibits introduced be lodged with this Court. See LSA-C.Cr.P. Art. 845. The reporter prepared a record in accordance with normal procedure, including a transcript of all the evidence. See LSA-C.Cr.P. Art. 843. Defendant argues, however, that the appellate record should also contain the voir dire examination of the jurors, the District Attorney’s opening statement, the closing arguments to the jury, and the trial judge's charge to the jury. Concededly, no objections were made during these proceedings. Defendant’s basic position is that the absence of these items deprives this Court of helpful background and a full understanding of the case.

Under constitutional and statutory provisions, this Court’s review in criminal cases is restricted to questions of law based upon defense objections and assignments of error. LSA-Const. Art. 5, § 5(C) (1974); LSA-C.Cr.P. Art. 841. Hence, the record before us is adequate for full appellate review. See State v. Mack, 243 La. 369, 144 So.2d 363 (1962), affirmed Mack v. Louisiana, 372 F.2d 170 (5th Cir. 1966), U.S. cert. denied 373 U.S. 917, 83 S.Ct. 1306, 10 L.Ed.2d 416 (1963). We conclude that the holding in State v. Ford, supra, is inapplicable here.

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

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

Defense counsel argues that the accused, who was charged and convicted of distribution of heroin, was improperly convicted because the material tested was not the same material which was taken from the defendant and which formed the basis on which he was charged. He asserts that, even if the state met the legal burden of establishing chain of custody, that the material tested could simply not have been the same material that was taken from him because the material tested weighed sixty percent more than the substance he possessed.

The state’s witnesses testified at trial that the material taken from the accused weighed 6.53 grams. State’s exhibit number one. No chemical analysis was done on the material immediately after its seizure; instead, it was sent by police officers to Miami, Florida to be tested in the laboratory there. The man who tested the material, Mr. Arnold, testified at trial that the material he tested weighed 10.79 grams and that only .078 grams, a miniscule amount of the substance, was found to be heroin. The only proof that the substance defendant Francis was selling was heroin (in other words, the testimony on which his conviction and life sentence were based) was Mr. Arnold’s assertion that the substance he tested contained the illegal drug. Since the substance he tested weighed about sixty percent more than the material taken from defendant, and since only a miniscule portion of the gross substance tested, i. e., less than eight hundredths of a gram, tested out as heroin, defendant claims that a mistake must have been made at the Miami testing laboratory, or somewhere, causing a totally different substance to be misidentified as the material taken from defendant, or causing a mixture between the substance taken from defendant and another substance containing heroin.

The majority opinion does not address itself to this contention of defendant’s, but merely states that defendant failed to properly raise “several other grounds” because he made no objection to the introduction of the envelopes used to transport the material to and from the Miami laboratory, except on the basis of the meritless claim that the state failed to adequately prove chain of custody. For this reason, the majority neither reviews nor even presents what is defendant’s main contention on this appeal: that the substance tested as heroin which formed the basis for his conviction could not have been the substance taken from him.

Contrary to the majority’s stated assumption in the discussion of assignment of error number two, the heroin which formed the basis of defendant’s conviction was never introduced into evidence. As the trial judge stated in his per curiam, “In the course of the trial, counsel for the State negligently failed to introduce the tin foil packets . . . .” [emphasis added] Again the judge stated, “[T]he State did have in its possession the evidence in this case although it failed to introduce the evidence in the course of the trial.” [emphasis added] And again the trial judge reasserted that the “Failure of the State to introduce the evidence precludes the State from exhibiting tin foil packets to the jury, and I so instructed counsel for the State.” [emphasis added] It is therefore unquestionable that, although the state had in its possession the material which by chemical analysis contained a miniscule amount of heroin, it never did introduce that evidence at the trial. That fact alone, of course, does not invalidate the conviction, because a person may be properly convicted of heroin possession on the strength of the chemist’s expert opinion that the substance he tested was heroin as well as the state’s proof through chain of custody that the substance taken from defendant was indeed the illegal substance tested by the chemist. See State v. Franks, 284 So.2d 584 (La.1973). However, the fact that the heroin was not ever offered by the state for introduction into evidence precluded defense attorney’s objecting to the material on the basis that it was not the same substance taken from defendant. Defense counsel made his chain of custody objection to the envelopes which were introduced by the state to establish chain of custody. He could not object to their introduction on the basis that they contained a substance different from the one taken from him because the envelopes did not contain any material. It is, I believe, therefore improper for the majority to refuse to review the major argument made in brief by this accused: that he possessed no heroin, and that the substance taken from him could not, according to the state’s own description of the material, have been the substance tested which formed the basis of his conviction.

I believe that defendant’s contention that the facts of this case so seriously impair the quality of evidence as to require reversal for failure to prove by any evidence an essential element of the case, the issue raised in assignment number two, has merit, and for that reason I dissent.

ON REHEARING

PER CURIAM:

After consideration on rehearing, we reinstate our original judgment with the following modification of the decree:

For the reasons assigned, the conviction and sentence are affirmed. However, we reserve to the defendant the right to a further evidentiary hearing on the issue of whether the substance contained in the envelope is the substance purchased from him, with authority for the trial judge to grant appropriate relief if warranted. The right to appeal an adverse ruling is reserved to the defendant. The case is remanded to the district court for further proceedings in accordance with this decree.

TATE and DENNIS, JJ., concur and assign reasons.

DIXON and CALOGERO, JJ., dissent, being of the opinion a new trial must be granted in the circumstances of this case.

TATE and DENNIS, Justices,

concurring.

Upon his conviction of distribution of heroin, La.R.S. 40:966, the defendant was sentenced to life imprisonment. On original hearing, we affirmed his conviction and sentence. We granted rehearing primarily because of the defendant’s forceful representations that the heroin introduced in evidence to prove his guilt was not identified as that purchased from him.

The primary cause for our concern was that the agent, who had purchased the alleged heroin from the defendant noted its gross weight as 6.58 grams. The chemist, who analyzed a certain substance allegedly received (through several intermediaries) from the agent, found that the package’s gross weight was 10.79 grams. Because of this great discrepancy in weight, as well as several other suspicious circumstances (including the state’s failure to locate the evidence at the time initially set for the trial three days previously), we felt that a serious issue was presented as to whether the chain of custody is adequately proved.

(1)

The usual rule is that the identification of the object seized as that introduced into evidence does not require sworn testimony by each participant in the chain of custody. “For admission, it suffices that the custodial evidence establishes it as more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient.” State v. Dotson, 260 La. 471, 256 So.2d 594, 608-09 (1971). Further, if the evidence is properly admitted, “the lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury.” State v. Dotson, supra.

Nevertheless, despite some language in Dotson and its progeny which (out of context) indicates otherwise, an issue of law, not purely fact, is presented by the trial judge’s initial determination that it is more probable than not that the physical object offered for presentation in evidence is connected with (i.e., is relevant to) the case. State v. Foret, 196 La. 675, 200 So. 1 (1941); 1 Wigmore on Evidence, Sections 28, 29 (3d ed. 1940). As with all other questions of law, this issue is reviewable upon appeal to this court. La. Constitution of 1974, Article 5, Section 5(C).

In the first place, the evidence is not relevant unless identified or authenticated as connected with the case. State v. Foret, 196 La. 675, 200 So. 1 (1940); McCormick on Evidence, Section 212 (2d ed. 1972), 7 Wig-more on Evidence, Section 2129 (3d ed. 1940); Weinstein’s Evidence, Section 403[05] (Volume 1) and Section 901(a)[2] (Volume 5) (1976); 1 Underhill’s Criminal Evidence, Section 115 (6th ed. 1973); 2 Wharton’s Criminal Evidence, Section 675 (12th ed. 1955). “[Physical] [ejvidence is not relevant, and hence not admissible, unless it is identified by testimonial proof,” State v. Foret, cited above, at 200 So. 4.

Therefore, if prejudice resulted from the trial court’s erroneous admission of irrelevant evidence, the defendant upon appeal is entitled to a reversal of his conviction. State v. Foret, 196 La. 675, 200 So. 1 (1941). See also: State v. Jones, 316 So.2d 100 (La.1975); State v. Chevallier, 213 La. 528, 35 So.2d 135 (1948); State v. Blassengame, 132 La. 250, 61 So. 219 (1913); State v. Butler, 114 La. 596, 38 So. 466 (1905).

(2)

In the present instance — if we overlook for the moment the difference in weight between the heroin seized from the accused and the heroin analyzed in the laboratory' — , the evidence reasonably shows an unbroken chain of custody, from the time of the alleged heroin’s purchase from the accused, until the time the envelope allegedly containing it was introduced in evidence (for the reasons specified in more detail by our majority opinion).

Providing “no circumstance casts doubt on the identity of the evidence introduced with that seized from or near the defendants”, the state need not call witnesses to prove each link of an unbroken chain of custody preponderantly shown by the sworn testimony of the purchasing officer and the analyzing chemist. State v. Cloud, 319 So.2d 793, 796 (La.1975). Connexity may be preponderantly shown by these witnesses’ identification of the envelopes containing the identified substances and their reasonable explanation from firsthand knowledge of the identifying receipts of those who handled the envelopes between seizure and trial.

Nevertheless, a different issue is presented where the evidence suggests substantial doubt as to the identity or connexity between the incriminating object purchased and the object offered for introduction into evidence.

As stated by McCormick on Evidence, Section 212 at pp. 527-28 (2d ed. 1972): “* * * if the offered evidence is of such a nature as not to be readily identifiable, or to be susceptible to alteration by tampering or contamination, sound exercise of the trial court’s discretion may require a substantially more elaborate foundation. A foundation of the latter sort will commonly entail testimonially tracing the ‘chair of custody’ of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.”

In the present case, substantial doubt that the substance introduced in evidence (analyzed as containing heroin) is the identical substance purchased from the accused may well arise: The evidence shows that the substance analyzed at the laboratory had a gross weight of 10.79 grams, while the allegedly illegal substance purchased had a gross weight of only 6.53 grams.

Upon the trial court’s noting this gross discrepancy in weight, or upon proper objection by the accused, the evidence should have been excluded as not having been shown more probably than not to be relevant; or else, before its admission, the state should have been at least required by way of further foundation to reasonably explain the discrepancy so as preponderantly to show the requisite connexity.

(3)

The difficulty in the present case arises because trial counsel did not object to introduction of the evidence on this ground (i.e., that the discrepancy in weight cast doubt upon the identity of the substance introduced in evidence with that purchased from the accused).

If indeed the objection to requisite proof of the foundation of connexity had been based on that ground, perhaps the state could have produced a satisfactory explanation for the discrepancy. At any rate, the trial court would have possibly sustained the objection and would not have committed error by admitting evidence not preponderantly shown by way of foundation to have have been the substance seized from the accused.

Reasons such as these require a party objecting to the admission of evidence to set forth his grounds for the objection. If he does not do so, he ordinarily waives his right to rely upon the admission as erroneous after the verdict. La.C.Cr.P. art. 841.

We have ultimately determined to deny reversal on such basis: The defendant’s trial objection to admissibility of the substance analyzed was grounded, not upon the discrepancy of weight as casting doubt upon the requisite identity. It was instead asserted upon the ground that the person who first receipted for the containing envelope in Miami was not called as part of the foundation — normally unnecessary, at least if no real issue is otherwise presented which casts doubt upon the identity of the substance introduced.

However, we have affirmed with this qualification:

If indeed the envelope contains no heroin (as the state witnesses had testified), or if indeed the envelope contains heroin identified therein as purchased or seized from someone other than the accused, the conviction could not stand: The state’s use of false or non-existent testimony to secure a conviction offends constitutional due process. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967).

We have therefore specifically reserved to the defendant the right, by way of post-conviction application, to apply for and obtain an evidentiary hearing on the issue of whether the substance weighing 10.79 grams and analyzed as containing heroin is indeed the substance purchased from him, which allegedly weighed 6.53 grams, upon which his conviction of distributing heroin is based.

(4)

On rehearing, the defendant likewise re-urges that his motion for a directed verdict of acquittal was improperly denied. The basis for this motion is that, although the envelope allegedly containing the heroin was introduced, the heroin itself was not separately introduced. Allegedly, there is therefore no evidence that he distributed heroin, as alleged.

The denial of a directed verdict of acquittal does not present a reversible issue issue on appeal unless no evidence is introduced to prove the offense or an essential element of it. State v. Smith, 332 So.2d 773 (La.1976).

However, the evidence of the purchasing agent, in connection with the evidence of the analyzing evidence, presents “some” evidence that the accused sold a substance identified as heroin to the agent: The lack of requisite proof of connexity may justify a reversal for a new trial because of incorrect admission of prejudicial evidence; it does not convert erroneously admitted evidence into “no” evidence, so as to justify a directed verdict of acquittal. City of Monroe v. French, 345 So.2d 23 (rendered April 11, 1977).

We find no merit to this assignment.

Conclusion

For the reasons assigned, we concur in the majority opinion.

      . This trial occurred prior to the effective date of Act 527 of 1975 which eliminated the directed verdict in all jury trials.

      . A converse may be equally true: “* * * objections based on the ground of irrelevancy are the weakest known to law and furnish no basis for a reversal of a conviction, save in exceptional cases where substantial prejudice is shown." State v. Bailey, 233 La. 40, 96 So.2d 34, 40-41 (1957). (Italics ours.)

      . Following oral argument, a “supplemental per curiam” by the trial court was filed with us, somewhat in the nature of a supplemental brief prepared by the assistant district attorney who had argued the rehearing. The trial court has frankly admitted that the factual explanation suggested by this per curiam was not based upon any evidence taken and further suggested that it should not be considered by this court, except as a possible reason to remand for an evidentiary hearing on the issue, since (as the appellant’s appellate counsel correctly insists) we should not consider evidence outside the record in determining the merits of this appeal.

      . The envelope itself, with its contents was introduced into evidence; however, its contents were not themselves extracted from the sealed envelope for purposes of separate introduction into evidence for the jury’s consideration. We recognize the force of the appellant’s argument that we should not ourselves affirm the conviction, based upon our own in camera and ex parte inspection of the contents of the envelope. Nevertheless, to assure against a gross miscarriage of justice, we have opened the envelope and assured ourselves it contains packages of a brown substance which seem on their face (on the basis of our ex parte viewing) to be identified as purchased from the accused and to be in accord with their visual description by the state witnesses.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. James BENNETT.
    No. 58536.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    On Rehearing May 16, 1977.

      R. Scott Ramsey, Jr., McElroy & Ramsey, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Ed Leonard, Walter J. Senette, Jr., Bernard E. Boudreaux, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Mark A. Mareau, Louisiana Coalition on Jails and Prisons, R. James Kellogg, American Civil Liberties Union of La., Inc., New Orleans, amicus curiae.
   SANDERS, Chief Justice.

A St. Mary Parish Grand Jury indicted the defendant, James Bennett, for attempted aggravated rape, a violation of LSA-R.S. 14:42 and 14:27. The defendant pled not guilty and not guilty by reason of insanity. A unanimous jury found him guilty as charged. The defendant received a sentence of twenty years at hard labor.

The defendant appeals, relying on four assignments of error for reversal of his conviction and sentence. Defense counsel specifically abandoned four other assignments of error in brief.

ASSIGNMENT OF ERROR NO. 1

After a sanity hearing, the court concluded that the defendant possessed the capacity to understand the proceedings against him and to assist in his defense. See LSA-C.Cr.P. Art. 641. The defendant asserts four grounds for a reversal of this finding.

Defense counsel contends that the court failed to appoint the sanity commission in accordance with Louisiana Code of Criminal Procedure Article 644(A), as the court appointed the commission more than seven days after ordering the mental examination, and as only one physician served on the commission.

Article 644(A) provides:

“Within seven days after a mental examination is ordered, the court shall appoint a sanity commission to examine and report upon the mental condition of the defendant. The sanity commission shall consist of at least two’and not more than three physicians who are licensed to practice medicine in Louisiana, and have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment. No more than one member of the commission shall be the coroner or any one of his deputies.”

On September 19,1975, the court granted a defense motion to suspend the prosecution and to appoint a sanity commission. Yet on September 23, 1975, the defendant filed another motion, identical to the first. On that same day, the court again suspended the prosecution and ordered a commission to examine the defendant and report on his present mental capacity to proceed. On September 29, 1975, the court named Dr. David Rees, Psychiatric Director of the Acadiana Mental Health Center and Dr. G. P. Musso, St. Mary Parish Coroner, to serve on the commission. Both doctors examined the defendant on October 8, 1975. However, the State moved for the appointment of another physician to assist Dr. Rees in his examination of the defendant. On November 3, 1975, the court named Dr. N. N. Anthony to the commission. On the following day, Dr. Anthony examined the defendant. On November 5,1975, the court held a sanity hearing and found the defendant legally sane.

The record does not support the defense assertion that only Dr. Anthony served on the sanity commission. The court appointed three physicians to report on the defendant’s mental status, two of whom testified at the sanity hearing. This commission satisfied the physician requirement of Article 644(A). "

As more than seven days elapsed between the court’s first ordering a mental examination and the court’s appointing a sanity commission, the commission was untimely appointed. However, the court did appoint a commission within ten days of the first order and within six days of the second. This delay does not invalidate the proceedings. No prejudice resulted since the defendant received the benefit of an examination by a sanity commission. See LSA-C. Cr.P. Art. 921.

The defendant further argues that during the sanity hearing the court improperly admitted a letter from Dr. Rees to the judge conducting the sanity hearing. This letter contains the result of Dr. Rees’ mental examination of the defendant. (R. p. 58) He complains that the State failed to lay the proper predicate for its introduction.

When the State introduced the letter, the Assistant District Attorney failed to offer any proof of its genuineness. See LSA-R.S. 15:456. However, assuming the letter to be inadmissible, the defendant was not prejudiced, for Dr. Rees’ testimony at the sanity hearing tracked the contents of his letter. LSA-C.Cr.P. Art. 921.

Finally, the defendant assigns as reversible error the court’s finding the defendant competent to stand trial. He specifically objects to the court’s refusal to suspend the sanity hearing and order a further evaluation of defendant’s mental retardation and intelligence quotient. (The examining physicians reported that the defendant had a “moderately severe mental retardation” but did not fix his exact I.Q.)

Louisiana law presumes the defendant’s sanity. LSA-R.S. 15:432. The defense carries the burden of proving by a clear preponderance of the evidence that as a result of a mental disease or defect he lacks the capacity to understand the proceedings against him or to assist in his defense. LSA-C.Cr.P. Art. 641; State v. Morris, La., 340 So.2d 195 (1976); State v. Veal, La., 326 So.2d 329 (1976); State v. Marks, 252 La. 277, 211 So.2d 261 (1968). Moreover, the judge’s determination of a defendant’s present mental capacity is entitled to great weight and his ruling will be reversed only if it is clearly erroneous. State v. Morris, supra; State v. Flores, La., 315 So.2d 772 (1975).

Defense counsel relies on portions of Dr. Anthony’s testimony and State v. Square, 257 La. 743, 244 So.2d 200 (1971) to support his argument.

Dr. Anthony testified as follows:

“[DEFENSE COUNSEL]: Q. And at this time, do you believe that the defendant — I know that you have already answered this but I would like a clearer answer — Is the defendant fully capable of assisting counsel in his defense, in your professional opinion?
“[DR. ANTHONY]: A. Again, I must state that I find the defendant to be well-oriented; to be aware of his environment, and I consider that he can be of assistance in assisting counsel.
“Q. Can he be of full assistance in assisting counsel in this matter?
“A. My feeling is that it would be helpful to have the defendant subjected to further clinical psychological evaluation, regarding his I.Q.
“Q. With what purpose in mind, what end purpose in mind?
“A. With a purpose of defining his level of mental retardation.
“Q. And this would be of possibly a greater help in determining whether or not he was fully capable of assisting counsel in his defense?
“[DEFENSE COUNSEL]: Well, Your Honor, in view of the testimony, I believe it might be proper to further subject the defendant to further mental tests in order to determine—
******
“BY THE COURT: I would imagine that a person with a college degree or a great deal of education would be of more assistance to counsel in assisting in his defense than a person would be of a low educational level and possibly some mental retardation. But within his capabilities, if I understand what the law is, within his capabilities, if he can assist counsel in his defense.
******
“[DR. ANTHONY]: I would say that within his capabilities, I’d find him able to assist counsel. Now, when he asked me about his I.Q., you know, I feel that there are tests that can nail this down, if this has to be nailed down for the satisfaction of the Court. But I certainly find the defendant’s orientation good enough to assist counsel in his defense.
“[DEFENSE COUNSEL]: Q. And can you state this beyond a reasonable certainty?
“[DR. ANTHONY]: A. Yes.”

(Sanity Hearing Tr. pp. 29-32)

Subnormal intelligence alone does not constitute legal insanity. State v. Morris, supra; State v. Hargrove, La., 330 So.2d 895 (1976); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968). Louisiana Code of Criminal Procedure Article 641 sets forth the test for incapacity to proceed, as follows:

“Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”

Both examining physicians reported that the defendant possessed the capacity to understand the proceedings against him and to assist in his defense.

In State v. Square, supra, in a letter by a member of the sanity commission, the physician presumably stated that a clinical psychologist’s examination was necessary to determine the defendant’s mental capacity to stand trial. We found the lower court erred in prohibiting defense counsel from questioning the physician as to his opinion on the necessity of such further examination. However, the present case is distinguishable. While Dr. Anthony stated that further tests would establish his precise intelligence quotient, both Dr. Rees and Dr. Anthony testified that the defendant possessed the capacity to understand the proceedings against him and to assist in his defense. Their testimony revealed that the defendant could distinguish right from wrong, was not psychotic, was able to communicate, was fully aware of his circumstances and environment, and was well oriented.

We conclude that the trial judge did not abuse his discretion in denying the motion to suspend the proceedings and order further tests. We also conclude that he properly found the defendant competent to stand trial.

ASSIGNMENT OF ERROR NO. 3

During his opening statement, defense counsel attempted to read the penalty provisions of the statutes under which the State charged the defendant, LSA-R.S. 14:42 and 14:27. The court upheld the State’s objection to the reading of the penalty provisions to the jury. In complaining of this ruling, the defendant states:

“The main thrust of the defendant’s defense in this case was to show the jury that the defendant should be found not guilty by reason of insanity. In order to do this it was felt that the jury had to understand not only the consequences of a verdict of not guilty by reason of insanity, but it should also understand the consequences of a guilty verdict.”

In State v. Nero, La., 319 So.2d 303 (1975), we held that it was proper for the trial judge to prohibit the defense counsel’s reading possible sentences to the jury during his opening statement. This Court stated:

“When defendant avails himself of the opportunity to make an opening statement under Article 765(4) of the Louisiana Code of Criminal Procedure, he must confine his remarks to the explanation of the nature of the defense and the evidence by which he expects to establish it. State v. Spencer, 257 La. 672, 243 So.2d 793 (1971). See also State v. Mehan, 262 La. 611, 264 So.2d 581 (1972).”

ASSIGNMENT OF ERROR NO. 4

The defense complains of a ruling which upheld a State objection. He contends that the ruling precluded the defense from clarifying defendant’s mental status. The objection arose as follows:

“[DEFENSE ATTORNEY]: Q. And did you notice anything about Mr. Bennett’s personality?
“[DR. ANTHONY]: A. Yes. Reviewing his past history and his own evaluation about himself and law enforcement agencies, I would consider him to be sociopathie.
******
“Q. Would you say a sociopathie personality would be a type of person that would not learn from their mistakes?
“A. Yes, sir.
“Q. Would you believe that by being punished or sent to jail, one would learn from his mistakes?
“[ASSISTANT DISTRICT ATTORNEY]: I object, Your Honor. We are getting into a realm of question of punishment as opposed to what the man’s mental status is.
“BY THE COURT: The objection is sustained.
“[DEFENSE ATTORNEY]: Please note an objection.
“[DEFENSE ATTORNEY]: Q. Again, speaking hypothetically, a person suffering from a sociopathie personality or condition, would they learn from punishment?
“[DR. ANTHONY]: A. They would not.”

(Tr. pp. 384-385)

Assuming that the trial judge erroneously sustained the objection, we note that the same testimony was elicited in response to the next question, to which the State offered no objection. Hence, the defense has no cause to complain. LSA-C.Cr.P. Art. 921.

ASSIGNMENT OF ERROR NO. 7

The defendant timely submitted a special written charge to the trial judge wherein he requested that the court include a reading of Louisiana Code of Criminal Procedure Articles 652, 654, 655, and 657 in its general charge to the jury. The trial judge denied the request on the ground that the general charge included the substance of the requested special charge.

We agree with the trial judge. The general charge contained the substance of Article 652, relating to the burden of proof as to the defense of insanity.

The judge further instructed the jury as follows:

“If you return a verdict of not guilty by reason of insanity, our law provides that the defendant must be committed to a state mental institution from which he shall not be released except upon order of this Court, based upon a determination that he is no longer criminally insane and a menace to himself or to society.”

(Tr. p. 485)

The defendant asserts that State v. Babin, La., 319 So.2d 367 (1975), requires the inclusion of the full text of Articles 654, 655, and 657 in the general charge. He contends that the short summary could be overlooked by the jurors.

In Babin, the trial judge declined to read Articles 654, 655, and 657 as requested or to explain their substance to the jury. There we stated:

“ ‘The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. ... It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.’
“In view of our interpretation of Art. 803 of the C.Cr.P., and in order to prevent a possible miscarriage of justice, flowing from the imprisonment of one who should be hospitalized because a jury does not understand the effects of an insanity verdict, we hold that the instructions here at issue must be given if they have been specially requested by defendant or by the jurors.
We prefer not to prescribe any particular form that such instructions must take. However, when the trial judge has not included in the general charge an instruction explaining or quoting the law applicable to a verdict of not guilty by reason of insanity, then upon defendant’s request he must read defendant’s wholly applicable, wholly correct suggested charge to the jury. Art. 807 C.Cr.P.” (Italics ours.)

We hold that the judge’s general charge adequately explained the legal consequences of a verdict of not guilty by reason of insanity. Hence, the trial judge properly declined to give the special charge. LSA-C.Cr.P. Art. 807. See State v. Watkins, La., 340 So.2d 235 (1976).

Assignment of Error No. 7 is without merit.

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

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent. In addition to the state’s not complying with the formalities set out in Article 644 of the Code of Criminal Procedure, the trial judge was not offered sufficient medical evidence on which he could have concluded that the accused possessed the mental capacity to proceed to trial. Two doctors (one a psychiatrist, the other a licensed physician) each examined Bennett for a very brief time and neither administered nor ordered the administering of psychological or other tests. At the sanity hearing, the doctors therefore presented scant medical evidence on which a decision as to defendant’s present sanity could be based. The doctors’ repeated recitations that defendant possessed the capacity to assist in his defense were legal conclusions within the judge’s province and were not bases on which the trial judge could have concluded that defendant had the capacity to understand the proceedings against him and to assist in the conduct of his defense.

ON REHEARING

DENNIS, Justice.

Defendant timely filed an application for rehearing contending we failed to consider his argument that the criminal justice system of this State subjects him and other mentally retarded persons to cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution.

The mentally retarded offender poses unique problems for the criminal justice system: his reduced understanding challenges traditional notions of criminal responsibility; his physical presence at trial is offset by an abstraction of mind which may be severe enough to invoke the ban against trying a defendant in absentia; his need for specialized care and training argues against his commitment upon conviction to a penal institution ill-equipped to habilitate him. Defendant and those filing amici curiae briefs in this matter have urged our integrated consideration of these extremely difficult issues and have advocated sweeping changes in the law. Although we are not insensitive to the arguments raised, the assignments of error perfected for our review on appeal present only the narrow questions considered in our original opinion, and many of defendant’s proposals for reform are more properly the subject of legislative than judicial action.

We granted a rehearing to reevaluate the trial court’s determination that defendant was competent to stand trial in light of defendant’s contentions that the sanity commission appointed to examine him did not conduct a thorough examination and that the findings upon which the court based its ruling were inconclusive. Having reviewed the record of the sanity hearing, we have decided the court failed to apply the appropriate standard in assessing defendant’s capacity to proceed and that the sketchy reports of the examining physicians did not justify a decision as to defendant’s sanity at that time. Accordingly, we remand the case to the trial court for a rede-termination, after further testing, of defendant’s competency to stand trial.

It is fundamental to an adversary system of justice that “a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103, 113 (1975). The prohibition is codified in our law, which directs the suspension of criminal proceedings against one found to be mentally incompetent, La.C.Cr.P. arts. 642 and 648, and defines mental incapacity to proceed as follows:

“Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” La.C.Cr.P. art. 641.

Mere weakness of mentality or subnormal intelligence does not of itself constitute legal insanity. State v. Morris, 340 So.2d 195 (La.1976); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968). However, when mental retardation, alone or in combination with a mental disease or defect, is so severe as to impair a defendant’s capacity to understand the object, nature and consequences of the proceedings against him, to consult with counsel in a meaningful way, and to assist rationally in his defense, that defendant is, within the contemplation of our law, incompetent to stand trial. State v. Morris, supra; State v. Flores, 315 So.2d 772 (La.1975); State v. Augustine, supra. Compare, Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 825 (1960).

The sanity hearing redounded with statements by the two examining physicians that defendant was able to assist counsel, but there was scant testimony to support this conclusion. It was said that defendant was oriented as to time and place, that he was not psychotic, and that he understood he was charged with a crime — although he did not fully appreciate the gravity of the charge. Both doctors agreed, however, that defendant has “moderately severe mental retardation.” Dr. Neville Anthony, who examined defendant for only twenty minutes and conducted no clinical tests, placed defendant’s I.Q. in the high 80’s or low 90’s; Dr. David Rees, also without benefit of testing, estimated that defendant’s I.Q. ranged between 35 and 50. When Dr. Anthony suggested that further clinical evaluation of defendant would be helpful in determining his level of mental retardation and his ability to assist counsel, defense counsel requested that the proceedings be interrupted so that additional tests might be conducted. The trial court rejected this request, reasoning that:

“I would imagine that a person with a college degree or a great deal of education would be of more assistance to counsel in assisting in his defense than a person would be of a low educational level and possibly some mental retardation. But within his capabilities, if I understand what the law is, within his capabilities, if he can assist counsel in his defense.”

From this statement we infer that the trial court’s ultimate conclusion that defendant was able to understand the proceedings and to assist counsel was grounded upon defendant’s ability to understand and assist “within his capabilities.” Such a determination begs the crucial question: were defendant’s capabilities sufficient to give him a rational as well as factual understanding of the proceedings against him and to enable him to consult with counsel with a reasonable degree of rational understanding? See, State v. Morris, supra; State v. Augustine, supra; Dusky v. United States, supra. It was insufficient for the court to find that defendant was not psychotic, was oriented as to time and place and was aware of his surroundings. See, Drope v. Missouri, supra; Dusky v. United States, supra. Dr. Rees testified that a severely retarded individual with an I.Q. of 10 might be aware of his surroundings, and thus he could presumably assist counsel and understand the proceedings against him “within his capabilities.” Due process, however, requires a level of effective participation by an accused in criminal proceedings against him. That defendant was found to know the difference between right and wrong would have been relevant in determining his criminal liability, but was totally irrelevant to the issue of his competency to stand trial. See, Note, 6 Loyola Univ.L.J. 678, 679 (1975); Note, 4 Columb.Hum. Rights L.Rev. 239, 244 (1971).

In addition to the somewhat general statements regarding defendant’s condition, the members of the sanity commission offered the court their opinions that defendant was able to assist counsel in the proceedings against him. Although it may be impossible in a pretrial competency hearing to avoid reliance upon psychiatric prediction concerning the accused’s capabilities, the trial court may not rely so extensively upon medical testimony as to commit the ultimate decision of competency to the physician. One commentator has cogently observed:

“To the extent that psychiatric testimony is utilized, however, it should be descriptive of the defendant’s condition rather than conclusory. Like criminal responsibility, incompetency is a legal question; the ultimate responsibility for its determination must rest in a judicial rather than a medical authority. In relying on conclusory psychiatric testimony, often expressed in the same terms as the ultimate incompetency question, courts shift responsibility for the determination to psychiatrists who have no special ability to decide the legal issue. Indeed, there is repeated evidence that psychiatrists often misunderstand the test of incompetency and confuse it with the test of criminal responsibility. Medical opinion about the defendant’s condition should be only one of the factors relevant to the determination. A defendant’s abilities must be measured against the specific demands trial will make upon him, and psychiatrists have little familiarity with either trial procedure or the complexities of a particular indictment.” Note, 81 Harv.L.Rev. 454, 470 (1967). See also, Robey, Criteria for Competency to Stand Trial: A Checklist for Psychiatrists, 122 Am.J. of Psychiatry, 616 (1965).

The conclusory reports by Drs. Rees and Anthony that defendant was able to assist counsel were not, without supporting information which was lacking at the hearing, entitled to reliance by the court. See, State v. Augustine, supra, at footnote 3.

The decision as to a defendant’s competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case and the gravity of the decisions with which he is faced. See, Note, 6 Loyola Univ.L.J. at 684; Note, 4 Columb.Hum.Rights L.Rev. at 245; see also, United States v. Masthers, 176 U.S.App.D.C. 242, 539 F.2d 721 (1976). Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. See, State v. Augustine, supra; Robey, Criteria for Competency to Stand Trial: A Checklist for Psychiatrists, 122 Am.J. of Psychiatry, at 616; Note, 6 Loyola Univ.L.J. at 684-85; Note,, 4 Co-lumb.Hum.Rights L.Rev. at 245.

At the inquiry into defendant’s competency, these vital factual considerations were supplanted by the physicians’ conclusion of law that defendant was able to assist counsel. Only the court, not the doctor, is qualified to make this decision. Indeed, there is ample evidence that psychiatrists often misunderstand the legal test of incompetency and confuse it with the test of criminal responsibility. 81 Harv.L.Rev. at 470; Robey, Criteria for Competency to Stand Trial : A Checklist for Psychiatrists, 122 Am.J. of Psychiatry, at 616. Furthermore, the trial court’s misconceptions as to the degree of rational participation which the law requires of a criminal defendant enabled it to overlook the disturbing discrepancy between the doctors’ estimates of defendant’s intelligence level. Whether defendant’s I.Q. is 35 or 90 bears importantly on his ability to stand trial.

On original hearing we correctly noted that because of the presumption of sanity in our law, the defense carries the burden of proving by a preponderance of the evidence that as a result of a mental disease or defect he lacks the capacity to understand the proceedings against him or to assist in his defense. However, when, as here, the defendant is an indigent and forced to rely upon the findings of a sanity commission appointed by the court to examine him, he has a right to demand that the examination be thorough and cannot be held responsible for the commission’s failure to complete its task. Compare, State v. Gilmore, 332 So.2d 789 (La.1976). The failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Drope v. Missouri, supra; Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). In view of the examining physicians’ own admissions that they could not be certain of their results without further clinical evaluation of defendant, we find that the court erred in failing to order additional testing upon defendant’s request.

Unlike mental illness, which is a variable state, difficult to measure retrospectively, mental retardation is a more static condition and hence its effect upon defendant’s capacity to stand trial can be as easily determined now as it could have been contemporaneously with the trial. Therefore, we find it unnecessary to set aside the jury verdict at this time, but remand for another sanity hearing following a complete reexamination of defendant. Compare, Pate v. Robinson, supra, and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Should the trial court find that defendant was incompetent to stand trial, the verdict must be set aside and the defendant remanded to a proper mental institution for custody, care and treatment as long as the lack of capacity continues. La. C.Cr.P. art. 648. On the other hand, after receiving additional evidence the court may determine that defendant was competent to stand trial. In this event, it may allow the sentence to stand or amend it in light of the new evidence prior to the beginning of execution of the sentence. La.C.Cr.P. art. 881. The right to appeal from any action of the trial court is reserved to defendant. If the defendant is found to have been competent to stand trial, in the absence of a further appeal, the conviction and sentence will be affirmed. See, Jackson v. Denno, supra; State v. Simmons, 328 So.2d 149 (La.1976).

For the reasons assigned, the case is remanded to the district court for further proceedings in accordance with this opinion.

SANDERS, C. J., dissents, adhering to the views expressed on original hearing.

SUMMERS and MARCUS, JJ., dissent.

      . The Honorable Robert E. Johnson presided at the sanity hearing.

      . We will not consider grounds urged for the first time on appeal, nor matters not briefed or argued. See LSA-C.Cr.P. Art. 841; State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).


author: TATE, Justice. SANDERS, Chief Justice MARCUS, Justice TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. Alton Ray LOVETT, Appellant.
    No. 58537.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    On Rehearing May 16, 1977.

      Samuel V. Prunty, Jr., Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., William L. Goode, Asst. Dist. Atty., for appellee.
    Ellis P. Adams, Jr., Executive Director, Louisiana Dist. Attys. Association, Baton Rouge, amicus curiae.
   TATE, Justice.

The defendant Lovett was convicted of second degree murder, La.R.S. 14:30.1 (1973), and sentenced to life imprisonment. He appeals, relying upon a single assignment of error.

The assignment is raised in connection with the state’s introduction of his confession. The defendant alleges that he was entitled to take the stand at the conclusion of the state’s predicate for purposes of refuting it, without being subject to cross-examination on the whole case or otherwise waiving his right against self-incrimination. The trial court denied him this right, which denial is the basis of his assignment of error.

Prior to trial, the defendant filed a motion to suppress his confession. He alleges that it had been secured as a result of prior interrogation conducted without the prior warnings required by Miranda. Thus, in effect, he alleges that the confession was constitutionally involuntary.

The motion was denied in a hearing conducted before the judge. This pre-trial ruling is conclusive as to the confession’s admissibility at the trial on the merits. La. C.Cr.P. art. 703 B. No issue is here raised as to the confession’s admissibility.

(1)

Before the state may introduce a confession for consideration by the jury, it must once again affirmatively prove, as a predicate to introduction, that the confession was free and voluntary. La.R.S. 15:451. See also La.C.Cr.P. art. 703 B: “When a ruling on a motion to suppress is adverse to the defendant, the state shall be required prior to presenting the written confession or written inculpatory statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the written confession or written inculpatory statement for the purpose of enabling the jury to determine the weight to be given to it.” (Italics ours.)

The defendant strenuously urges that, unless he is permitted to take the stand to refute the state’s evidence of voluntariness, there is no practical way by which his contention of involuntariness may properly be considered by the jury in its determination of the weight to be given to the confession. Thus, he contends, the legislative policy of letting the jury determine the weight to be given an allegedly involuntary confession, and an accused’s right against self-incrimination, cannot both be effectuated unless an accused is permitted to take the stand (preferably contemporaneously with the state’s predicate) to dispute the state’s evidence of voluntariness, without at the same time subjecting himself to cross-examination except as to the issue of the confession and as to his credibility. He complains of the trial court’s refusal to accord him this right.

(2)

Prior to the Louisiana Code of Criminal Procedure of 1928, an accused who testified waived his right to self-incrimination only to the matters as to which he testified. He could be “cross-examined [only] as to all matters concerning which he gives his testimony.” Act 29 of 1886, Section 2; Comment, Scope of Cross-Examination in Louisiana, 10 Tul.L.Rev. 294 (1936).

This approach was deliberately changed by our first code of criminal procedure, enacted by Act 2 of 1928. See change (16) recommended by the Commissioners in their report on the proposed code. Therefore, as enacted by the legislature, any witness (Article 376), including the accused (Article 462), who voluntarily takes the stand may be cross-examined upon the whole case.

When the 1966 Code of Criminal Procedure was enacted, these provisions were retained as ancillary to the code. See: La. R.S. 15:280 (1950; renumbered as such in 1966) and La.R.S. 15:462 (1950).

By reason of these provisions, if a defendant takes the stand, at least as part of his defense on the merits, he waives his right against self-incrimination and may be cross-examined upon the whole case. State v. Rhodes, 337 So.2d 207 (La.1976); State v. Shelby, 308 So.2d 279 (La.1975); State v. Pellerin, 286 So.2d 639 (La.1973); State v. Collins, 283 So.2d 744 (La.1973).

We have heretofore also concluded that, because of these provisions, an accused cannot take the stand at the conclusion of the state’s predicate for the limited purpose of testifying with respect to the voluntariness of the confession, without also subjecting himself to cross-examination on the whole case. State v. Sears, 298 So.2d 814 (La.1974); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971); State v. Goins, 232 La. 238, 94 So.2d 244 (1957). On the other hand, we have held that a non-defendant witness who testifies as to one issue does not necessarily waive his right against self-incrimination as to matters wholly unrelated to that issue. State v. Bolen, 338 So.2d 97 (La.1976); State ex rel. Doran v. Doran, 215 La. 151, 39 So.2d 894 (1949).

(3)

Before the confession is introduced in evidence, and prior to the similar predicate laid before the jury, the state is required in a hearing before the judge alone (see La.C.Cr.P. art. 794 and Official Revision Comment b), to prove that the confession was freely and voluntarily made. La. R.S. 15:451; La.C.Cr.P. art. 703 B; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

At this judge-hearing, the state must prove voluntariness beyond a reasonable doubt, and the defense may cross-examine the state’s witnesses and put on its own case. See Comment, Confessions in Louisiana Law, 14 La.L.Rev. 642, 650-652. If the defendant then takes the stand, he is not subject to cross-examination on the whole case. State v. Thomas, 208 La. 548, 23 So.2d 212 (1945). Further, to effectuate the right to test the admissibility of evidence obtained unconstitutionally, the testimony of the accused at this judge-hearing is not admissible against him in the trial on the merits as to his innocence or guilt. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

These principles are well-settled in the jurisprudence and in our practice. They result in a judicial balancing of the necessity for a statutory predicate of admissibility in order to effectuate constitutional rights, against the equal necessity not to infringe upon an accused’s constitutional right against self-incrimination.

(4)

The necessity of balancing these two values in the judge-hearing as to admissibility equally, it would seem, require a similar procedure in presenting the issue of volun-tariness to the jury — although concededly the evidence is presented to the latter only for the latter to determine the weight of the confession rather than its admissibility.

Nevertheless, as noted, our jurisprudence is to the contrary. See State v. Sears, State v. Cripps, and State v. Goins, cited above. We have ultimately determined that we were in error in the statutory construction reached by these decisions, for the reasons to be stated below, and therefore overrule them prospectively, see State v. Ray, 259 La. 105, 245 So.2d 540 (1971), as of the date of publication of this opinion in the Southern Reporter.

(5)

In State v. Whatley, 320 So.2d 123 (La.1975), we noted reasons of practical efficiency and fairness which point to having the trial jury hear defense evidence going to the weight of the confession contemporaneously with the state’s evidence introduced as predicate to prove this issue. We also noted that, in at least several districts of this state, this procedure is followed by the trial courts. We reserved the present issue for future decision, however, as it was not squarely presented to us by that case.

Upon consideration, we have determined that, for the same reasons that an accused is so permitted to testify in the judge-hearing, he should be permitted at the jury trial, for the jury’s determination as to the weight of a confession, to take the stand for the limited purpose of testifying as to the voluntariness and validity of the confession sought to be introduced. If he does so, he is not subject to cross-examination on the case as a whole, but only as to the validity of the confession. He may also, of course, be cross-examined as to his credibility, including by impeaching him on the basis of prior convictions.

If an accused cannot do so without waiving his constitutional self-incrimination rights as to guilt or innocence, he must abandon his statutory right to have the jury consider any lesser weight it should give to the confession due to the circumstances under which it was confected. If an accused cannot do so, his evidence as to the weight of the confession (which the jury is entitled to hear) cannot be given unless the accused subjects himself to cross-examination on merit-issues irrelevant to the validity of the confession and which infringe upon his constitutional right not to incriminate himself.

As a matter of (at the least) statutory interpretation, a statutory right to have the jury hear evidence going to the weight of a confession should not reasonably be conditioned upon requiring an accused to sacrifice his constitutional rights in order to exercise the right so given.

Preferably, the defense evidence as to involuntariness (or at least the accused’s testimony there as to) should be permitted to be introduced contemporaneously with the state’s predicate providing voluntariness of the confession. The issue thus segregated is more readily presented to the jury for its determination of the contents of the confession and the weight to be given to it.

We do not at this time, however, rule that the trial court abuses its discretion by deferring until the presentation of the defense in chief the hearing of defense witnesses as to voluntariness other than the accused himself: Only the self-incrimination rights of the accused himself may be jeopardized if he is not permitted to testify, contemporaneously with the state’s predicate, for the limited purpose of contesting the weight to be given to the confession due to claimed involuntariness or invalidity in its obtaining.

We are unwilling to hold that the accused’s constitutional rights have been infringed by the practice previously followed. Although some commentators have noted constitutional questions may arise by requiring an accused to waive his constitutional rights against self-incrimination when he takes the stand to testify as to a limited issue, see, e. g., Pugh, 32 La.L.Rev. 345-46 (1972), no authority we have discovered has so held.

Nor are we, in the absence of constitutional deprivation, willing to reverse this conviction, where the procedure followed has been consistently approved and where we determine, for reasons of greater procedural efficiency and fairness, that the interpretation of state statutes that we adopt today is preferable to that which we have followed in the past. The accused cannot complain of this change in interpretation not affecting himself, since he along with all others similarly situated was tried by the procedure followed prior to the effective date of this opinion, not shown to us to be unconstitutional.

For the foregoing reasons, we affirm the conviction and sentence. However, effective with the date of publication of this opinion, State v. Sears, 298 So.2d 814 (La. 1974) and decisions of like import are overruled.

AFFIRMED.

SANDERS, C. J., and MARCUS, J., concur in the decree only and assign written reasons.

SUMMERS, J., dissents.

SANDERS, Chief Justice

(concurring in the decree).

LSA-R.S. 15:462 provides that when an accused becomes a witness he may be cross-examined “upon the whole case.”

This statutory provision is clear. The Court has consistently held in the past that when the accused testifies before the jury at the trial as to any part of the case, including the giving of a confession, he is subject to full cross-examination. See State v. Sears, La., 298 So.2d 814 (1974); State v. Gripps, 259 La. 403, 250 So.2d 382 (1971); State v. Goins, 232 La. 238, 94 So.2d 244 (1957). See also State v. Pellerin, La., 286 So.2d 639 (1973); State v. Collins, La., 283 So.2d 744 (1973); State v. Prieur, La., 277 So.2d 134 (1973).

The prevailing rule elsewhere is that when a defendant takes the stand he waives his constitutional privilege against self-incrimination and is subject to cross-examination. 81 Am.Jur.2d, Witnesses, § 495, p. 501.

The majority changes the rule, thereby allowing a defendant to testify before the jury concerning the giving of a confession without full cross-examination. Since the cross-examination rule is statutory, the holding is insupportable.

For the reasons assigned, I concur in the decree only.

MARCUS, Justice

(concurring).

I am unable to ascribe to the new procedural rules enacted in the majority opinion. They are contrary to our present statutory law (La.R.S. 15:280 and 462). In my view, such changes should be accomplished through the legislature not by judicial decree. Accordingly, I respectfully concur.

On Rehearing

TATE, Justice.

We reinstate as proper the interpretation we reached in our original opinion of La. R.S. 15:280, 451, 462, and La.C.Cr.P. art. 794, construed in conjunction with the constitutional rights of the accused: This interpretation requires that the accused be permitted to testify for the limited purpose of contesting that the confession was freely and voluntarily made, contemporaneous with the state’s reiteration of its predicate before the jury to establish the voluntariness of the confession.

However, because of the complaint made that the purely prospective nature of our interpretation in our original opinion constituted dicta, we have determined that the present conviction should be reversed because of such error of law. However, a majority of the court is also of the belief that the interpretation we adopt today applies only to trials commenced after the date of finality of this decision.

For the reasons assigned, we reverse the conviction and sentence, and we remand for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents.

ON REHEARING

SUMMERS, Justice

(dissenting).

Appellant Alton Ray Lovett was charged by grand jury indictment with the first degree murder of Julius House on June 8, 1975, a violation of Article 30 of the Criminal Code. A trial by jury resulted in a verdict of second degree murder, and Lo-vett was sentenced to imprisonment for life.

Prior to trial, appellant moved to suppress a statement made to Detectives Morgan and Brann on June 9, 1975, and any and all other statements he may have given, on the ground, among others, that the police took at least one other unrecorded statement from the defendant prior to giving the Miranda warnings. At an eviden-tiary hearing on the motion to suppress, appellant testified that he was promised leniency if he would cooperate by confessing. He said also that the police threatened to, but they did not in fact, harm him. Cross-examination of appellant was limited to the issue of voluntariness. After the hearing the trial judge denied the motion to suppress.

At the trial before the jury the State produced evidence tending to establish the free and voluntary nature of the confession. Appellant then moved to take the stand for the limited purpose of rebutting the State’s evidence on the question of voluntariness. This motion was denied and the ruling is the single assignment of error urged on this appeal.

It is now inescapably clear that the Fourteenth Amendment to the United States Constitution forbids the use of involuntary confessions not only because of the probable unreliability of confessions obtained in a manner deemed coercive, but also because of the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. American justice is also based upon the deep-rooted feeling that the police must obey the law while enforcing the law. In the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

It has been axiomatic in the law of this State for many years that before a confession may be introduced in evidence it must be affirmatively shown that it was freely and voluntarily given and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.Rev.Stat. 15:451; State v. Gilmore, 332 So.2d 256 (La.1976); State v. Sears, 298 So.2d 814 (La.1974); State v. Kennedy, 232 La. 755, 95 So.2d 301 (1957).

The Federal Constitution requires, and this Court has held, that before a confession obtained by custodial interrogation may be considered free and voluntary, it must be shown that defendant was informed of his right against self-incrimination and his right to have an attorney present at the interrogation; that he fully understood the consequences of waiving those rights; and that he did in fact waive those rights voluntarily and without physical or mental coercion. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Ned, 326 So.2d 477 (La.1976). Cf. La.Const. art. I, § 13 (1974).

Also, the principle is well-established in the law that “When a person accused . becomes a witness, such witness shall be subject to all the rules that apply to other witnesses, and may be cross-examined upon the whole case.” La.Rev.Stat. 15:462; State v. Sears, 298 So.2d 814 (La.1974).

From these propositions a procedure has developed whereby the free and voluntary character of what purports to be a confession must be determined by the judge alone at a hearing outside the presence of the jury. At this hearing the defendant may offer proof that the confession was not free and voluntary. He may also take the stand for that limited purpose, and if he does, cross-examination is limited to that question, for at that hearing the only relevant issue is the voluntariness of the confession. Unless the evidence convinces the judge that the confession is free and voluntary it is inadmissible and cannot be brought to the attention of the jury.

This procedure rests in part upon the experience that the State will invariably introduce evidence that the confession was free and voluntary. To deny the defendant the right to take the stand before the judge for the limited purpose of refuting the free and voluntary nature of the confession would place him in the position of having his confession held to be admissible and brought to the attention of the jury without the benefit of his very relevant and material testimony on the subject. To overcome the effect of the admission defendant would be compelled to take the stand before the jury and be cross-examined on the whole case in order to present his personal version of the voluntariness issue. State v. Thomas, 208 La. 548, 23 So.2d 212 (1945); State v. Lanthier, 201 La. 844, 10 So.2d 638 (1942). This dilemma is resolved by permitting defendant to testify before the judge alone outside the presence of the jury with cross-examination limited to voluntariness.

A limited hearing on admissibility is authorized by Article 794 of the Code of Criminal Procedure which permits, and at the request of the State or defendant requires, the court to remove the jury from the courtroom when the court hears matters to be decided by the court alone. As the comments to Article 794 explain, it is a longstanding practice which vests the trial judge with discretion to remove the jury on matters to be decided solely by him. The most common situation in which the judge must remove the jury, if requested to do so, is the occurrence of a disagreement on the admissibility of a confession. It is grounds for mistrial if the admissibility of a confession is only tried in the presence of the jury. See State v. Goins, 232 La. 238, 94 So.2d 244 (1957); State v. Green, 221 La. 713, 60 So.2d 208 (1952); State v. Thomas, 208 La. 548, 23 So.2d 212 (1945); State v. Lanthier, 201 La. 844, 10 So.2d 638 (1942).

In addition Article 703 B of the Code of Criminal Procedure permits a defendant to suppress for use as evidence at the trial on the merits a written confession or written inculpatory statement on any ground that would make it inadmissible as evidence. Such a motion must be heard by the judge alone and decided prior to trial.

A ruling that the confession is admissible in an Article 703 B hearing is binding at the trial on the merits. But a defendant may nevertheless introduce evidence during the trial concerning the circumstances surrounding the making of the confession for the purpose of enabling the jury to assess the confession’s reliability and the weight to be given to it.

Furthermore Article 767 mandates that the State shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant. And the State may not introduce a confession in evidence unless it advises the defendant prior to the opening statement of its intention to do so. La.Code Crim.Pro. art. 768.

As a matter of constitutional law an accused is entitled to a state court hearing on the issue of the voluntariness of a confession by a body other than the one trying his guilt or innocence. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

It is apparent, therefore, that careful attention has been given by the legislature, by this Court and by the United States Supreme Court to procedures which will prevent the disclosure of any confession to the jury unless it has first been determined outside the presence of the jury that the confession was free and voluntary. One of the principal reasons for this voluntariness hearing is to avoid merging the admissibility issue with the question of guilt. The prejudicial effect of bringing a confession to the attention of the jury before its volun-tariness is established and the difficulty of removing that prejudice from the jury’s mind is well-recognized. A separate hearing before the judge alone affords the defendant an opportunity to limit the State’s cross-examination of him to the issue of voluntariness, a right he cannot claim when he takes the stand before the jury where his guilt or innocence is the issue.

Thus, once the admissibility of the confession is determined by the judge its effect and the weight to be given to it is a question of fact, which bears upon the guilt or innocence of the accused, and that question is one for the jury. If the defendant elects to take the stand at the trial before the jury, he cannot pick and choose the testimony he will give. He has no right to limit his cross-examination to the question of volun-tariness but he “shall be subject to all the rules that apply to other witnesses, and may be cross-examined upon the whole case.” La.Rev.Stat. 15:462; United States v. Edick, 432 F.2d 350 (4th Cir. 1970); State v. Sears, 298 So.2d 814 (La.1974); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971); State v. Goins, 232 La. 238, 94 So.2d 244 (1957). See also State v. Pellerin, 286 So.2d 639 (La.1973); State v. Collins, 283 So.2d 744 (La.1973).

Where the defendant has had a hearing before the judge alone, admittedly full and fair, his rights to the determination of vol-untariness for the purpose of admitting the evidence at the trial have been satisfied. He is not entitled to another full hearing on that question before the jury unless, of course, he is prepared to testify subject to the usual- rules of cross-examination. He has no right to limit the cross-examination to those favorable facts to which, alone, he wished to testify. Fitzpatrick v. United States, 178 U.S. 304, 20 S.Ct. 944, 44 L.Ed. 1078 (1900).

The constitutional guaranty against compulsory self-incrimination is one which, like other rights, may be waived. It is waived when the accused takes the witness stand in his own behalf. His voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between them. He cannot then refuse to testify to any fact which would be competent evidence in the case if proved by any other witness. The waiver of the accused is not partial. Having once cast aside the cloak of immunity, he may not resume it at will whenever cross-examination may be inconvenient or embarrassing. Therefore, this Court has held: “When the defendant takes the stand in his own defense, he waives his protection against self-incrimination and is treated as any other witness. As such he may be cross-examined upon the whole case. R.S. 15:462 and 15:280.” State v. Shelby, 308 So.2d 279 (La.1975). This Court has also said that “While a defendant waives his Fifth Amendment privilege when he takes the stand (State v. Shelby, 308 So.2d 279 (La.1975); State v. Collins, 283 So.2d 744 (La.1973)), a witness who is not the accused may, under certain circumstances, take the stand and testify as to some matters and invoke the Fifth Amendment as to others.” State v. Bolen, 338 So.2d 97 (La.1976). By pointing out this distinction between the accused and other witnesses, the Court emphasizes the fact that the waiver of the accused is without limitation as Section 462 of Title 15 of the Revised Statutes declares. In view of this statutory declaration the Court is without authority to limit cross-examination. Again in State v. Rhodes, 337 So.2d 207 (La.1976), where the defendant testified on his own behalf, this Court, relying upon Section 462, held that he could be examined on the whole case even where the cross-examination involved self-incriminating evidence otherwise protected by the Fifth Amendment.

The rule is the same in Texas. In Rubens v. State, 166 Tex.Cr.R. 71, 311 S.W.2d 242 (1958), the Court said:

“Appellant complains of the refusal of the court to allow him to testify for the limited purpose of showing the involuntary character of the written statement introduced in evidence by the state.
“When the accused takes the stand he becomes a witness for all purposes and is subject to the same rules as any other witness, hence the court’s refusal does not show error. (Citations omitted.)”

In Georgia a hearing was held outside the presence of the jury with reference to the voluntariness of a statement made by the defendant to the police. The court found that the statement was voluntary and freely made by the defendant, and then allowed testimony relating to the confession to go to the jury.

When defense counsel requested that defendant be allowed to take the stand on the limited issue of the voluntariness of his statement without being cross-examined beyond this issue, the request was denied. In approving the ruling the Georgia Court of Appeal said: “We know of no constitutional or legal requirement that would permit the defendant to testify in this manner.” Hewell v. State, 136 Ga.App. 420, 221 S.E.2d 219 (1975).

Upon the firm ground which these authorities provide this Court should continue to deny defendants the right to limit their cross-examination to voluntariness of a confession on the trial of the merits before the jury. The concept of “balancing” presented in the Court’s original opinion is admittedly not supported by any authority. The proposal disregards the specific legislative mandate of Section 462 of Title 15 of the Revised Statutes which ordains that the defendant who takes the stand may be cross-examined on the whole case. The waiver of the constitutional right not to incriminate oneself, which results when an accused takes the witness stand on his own behalf, is also set aside.

When the question of guilt or innocence is involved, the circumstances under which a confession is given have significant bearing upon its reliability or weight. And the reliability and weight of the confession has a profound effect upon the guilt or innocence of the accused. Therefore, once the confession is considered admissible, testimony by the defendant before the jury on voluntariness bears directly upon his guilt or innocence. At this stage of the proceedings the issue is no longer limited to a question of law and admissibility of evidence. The question then becomes the guilt or innocence of the accused. There is no reason, therefore, why the accused should be entitled to another hearing on voluntariness with the safeguards provided in a separate hearing before the judge when, by denying the voluntariness of the confession, he has taken the stand to deny his guilt inferentially. The question of admissibility cannot be litigated twice. La.Code Crim. Pro. arts. 394 and 703 B. It is not balancing the scales of fairness or justice to grant the accused a limited hearing before the judge on voluntariness to determine admissibility, and then after the confession is determined to be admissible to again limit the hearing in an entirely different situation where the issue is guilt or innocence. A strictly legal question (admissibility) cannot be balanced with a factual issue (guilt or innocence).

Aside from the overwhelming authority which supports the ruling of the trial judge that if defendant took the witness stand he was not entitled to limit his cross-examination to the question of voluntariness of the confession at the trial on the merits, appellant concedes in brief that the confession is admissible. Such a concession is entirely inconsistent with the contention that appellant should be permitted to establish that it is not free and voluntary, for to be admissible a confession must first be free and voluntary.

Moreover, appellant admits in brief that the confession “saved him from a first degree murder conviction.” This is true, appellant states, because the defense version of the killing as related in appellant’s confession to the police was the defense theory of the case. The defense employed this version of the killing to convince the jury that defendant was guilty of second degree murder and not first degree murder, the crime charged. On the one hand the defendant is using the confession to avoid a first degree murder conviction, and on the other hand he is contending that he should be allowed to testify only that it is not free and voluntary. Evidence that the confession was involuntary would conceivably erode evidence of reliability and lessen the weight of the confession in the eyes of the jury. The effect would be to weaken the defense based upon the contention that the version of the killing in the confession was the true version. Appellant’s position is untenable.

I respectfully dissent.