author: SUMMERS, Justice. TATE, Justice, CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Terry L. KELLY.
    No. 60914.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      Horace P. Rowley, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

On August 12, 1976 the Orleans Parish Grand Jury returned an indictment charging that on August 1, 1976 Terry L. Kelly committed second-degree murder of Josephine Gregory. La.Rev.Stat. 14:30.1. Defendant Kelly was tried, convicted and sentenced to life imprisonment, without eligibility for parole, probation or suspension of sentence for forty years. The following assignments of error are urged on this appeal.

Assignment 1: Defendant, as an indigent, applied for counsel and the trial judge appointed counsel on August 23,1976. This appointment was vacated on August 27, 1976 and Jerry D. Williamson, Esquire, was appointed to represent the defendant. Appointed counsel thereafter filed a number of pretrial motions on behalf of defendant. After hearings on these motions in which defense counsel was partially successful, the case was tried before a jury on January 5 and 6, 1977, resulting in a verdict of guilty as charged. Defendant was sentenced on January 21, 1977, at which time a motion for appeal was filed. The transcript of the trial proceedings was completed on June 2, 1977. Shortly thereafter, on July 8, 1977, the trial judge vacated the appointment of trial counsel Williamson and appointed William J. O’Hara III, Esquire, and the Loyola Law School Clinic to represent defendant in all further proceedings.

On August 9, 1977 a student practitioner with the law school clinic filed assignments of errors alleging that the trial judge improperly denied the defense motions to suppress evidence and to suppress identification. In addition it was alleged that the trial judge erred in permitting the jury to view the State’s exhibits 3, 6, 7, 8, 10, 28 and 31. A designation of those portions of the record applicable to these assignments of error was also filed at the same time. Thereafter, on October 27, 1977, the appeal was lodged in this Court.

Then, on November 3, 1977 the trial judge vacated the appointment of William J. O’Hara III, Esquire, and the Loyola Law School Clinic, and substituted Horace P. Rowley III, Esquire, as counsel for defendant. On November 14, 1977 Rowley filed a motion in the trial court to supplement the record in order to include a transcription of the voir dire examination of prospective witnesses, closing arguments of counsel, the instructions to the jury and the sentencing proceedings. In conjunction with this motion defense counsel filed an amended designation of the record which had the effect of requiring all portions of the record not transcribed and fiied to be lodged in this Court with those portions of the record already filed.

In denying this motion the trial judge was of the opinion that a perusal of the stenographic notes disclosed that no objections were made to any ruling in the proceedings which defendant requested transcribed. The practice in his court was to transcribe for appellate purposes only the objections of counsel and applicable testimony and/or relevant colloquy of the proceeding. In his view, to produce frivolous transcripts would cause a backlog in his court where the volume of appeals was great.

From this ruling, defense counsel sought review in this Court where the motion was denied on December 22, 1977. This Court was of the opinion that the showing made did not warrant the granting of the motion “at that time”. Defense and State briefs were filed thereafter, and when the case came for hearing on oral argument the motion to supplement the record was granted, allowing time for supplemental briefs and permitting the defense to prepare new assignments of error.

The argument made in support of this first assignment of error is that the student practitioner was without authority to file assignments of error or designate the record required on appeal, unless the document was also signed by a supervising attorney admitted to the practice of law.

Rule XX of this Court’s Rules permits limited participation of eligible law students in trial court activities when the programs, are sponsored and supervised by the law school. Section 6 of this Rule permits “Preparation of briefs, abstracts and other documents to be filed in appellate courts of this state,” by eligible law students, “but such documents must be signed by the supervising lawyer.”

While it is obvious that there was a lack of compliance with the Rule and that the assignments of error and designation of the record, signed only by the student practitioner, were improperly filed in this case, the irregularity has been fully corrected. Defense counsel on this appeal, who was not present at the trial, has been furnished with a complete record. He has reviewed this record and prepared assignments of error which he considers worthy of consideration on appeal. We accept these assignments as controlling on this appeal.

Assignment 2: About seven o’clock on the evening of August 1, 1976, Josephine Gregory, the 69-year-old victim in this case, was brutally stabbed thirteen times with a butcher knife. Neighbors heard her screams for help as she staggered to her front porch where she slumped on a couch and died.

Two of her neighbors Richard and Sheila Keller testified they saw defendant Kelly enter the victim’s house shortly before the incident. They saw him leave through the front door and saw the victim stagger onto the front porch thereafter. They supplied the police with a description of Kelly and pointed out the direction he took in leaving the scene. Julie Watts was leaving a friend’s house across the street as defendant walked away from the victim’s house. She testified that, although she did not see his face, she saw defendant leave the scene of the crime and was able to give the police a description of his clothing. A search of the area followed.

Within minutes the police arrested the defendant a few blocks from the scene of the crime. His clothes and build matched the descriptions the police had obtained from the witnesses. At the time, defendant had removed his bloodstained shirt and was washing it with a hose. Blood was also present under his fingernails and shoes. There were scratches on his face. The police advised defendant that he was under investigation for attempted murder, and his Miranda rights were recited after he was handcuffed and placed in the police car.

The police drove defendant back to the scene of the crime where he was immediately identified by the three witnesses. He was then driven to the central lockup where he was booked for murder.

The principal question posed by this assignment is whether the trial judge erred by admitting testimony of the identification at the scene of the crime.

A motion to suppress identification consisted of a conclusory allegation that the in-field identification of defendant was suggestive, and the further allegation that the identification was inadmissible because defendant was not then represented by counsel. At the hearing on this motion the arresting officer testified that when he returned to the scene with the defendant, Richard and Sheila Keller and Julie Watts were brought to the police car one at a time, where defendant sat handcuffed. About three other suspects of similar descriptions were lined up outside the police cars. Richard Keller was asked if he recognized any of these suspects and replied that he did not. He was then asked if the individual in the police car was the person he saw go into and leave the victim’s house. Keller identified the defendant positively as the individual he saw. Later Keller was driven to the police station to give a statement. While there he was shown a photograph and said he recognized it as a photograph of the defendant. When asked if any suggestions were made in an attempt to influence his identification, he said no such attempt was made. He further testified that he had seen defendant on numerous occasions in the past and that defendant had been a neighbor of his prior to this offense.

Sheila Keller followed the same routine, except when she went to the car she identified defendant without being asked if any of the other suspects could be identified as the person she saw enter and leave the house. She too had known the defendant prior to this offense when he lived with his cousin in a house to the rear of the Keller house.

When Julie Watts was brought to the car she was asked if she recognized the pants worn by defendant to be those worn by the individual who left the scene of the killing. She recognized the pants to be the same. She also recognized the shirt then in the possession of the police as the shirt worn by the person she saw leaving the scene of the crime.

On this evidence the trial judge denied the motion to suppress identification.

A one-on-one in-field identification is permissible where it is closely associated in point of time with the criminal transaction and where the accused is returned to the scene of the crime for an on-the-spot identification. Prompt confrontations promote fairness by assuring reliability and the expeditious release of innocent suspects. State v. Collins, 350 So.2d 590 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976).

No indication of impermissible suggestion or the exertion of undue influence to compel an identification appears in this record. To the contrary, the in-field identifications were made within minutes after the killing. The Kellers, as identifying witnesses, had ample opportunity to view and recognize the defendant. Although Julie Watts only saw defendant’s back as he walked away from the scene of the crime, his distinctive clothing enabled her to positively identify his clothing when he was returned to the scene.

In-court identifications by the Kel-lers also had a source independent of the in-field identification. Hence that in-court identification was admissible even if the in-field identification had been impermissi-bly suggestive. Each of them had seen defendant on numerous occasions while he lived as their neighbor for several months prior to August 1,1976. On some occasions during that time defendant stopped and talked to Sheila Keller wh.le she was chatting with the victim on her porch.

On many occasions this court has held that a person accused of a crime is not entitled to counsel at a lineup prior to indictment. See State v. Fields, 342 So.2d 624 (La.1977) and cases cited there. The allegation of the motion to suppress identification, that defendant was not represented by counsel at the in-field lineup, is therefore without merit.

This assignment has no merit.

Assignment 3: In brief defense counsel asserts that at the trial the clerk improperly called prospective jurors in the order in which their names appeared on the petit jury venire sheet compiled by the jury commission. To support this assertion counsel refers to the jury list in the record containing names of the jurors and check marks in columns. No explanation of this list is furnished. While this evidence does not preponderately support counsel’s claim, the record was supplemented with a transcript of the voir dire. By this transcript counsel’s factual assertion is verified.

The case of State v. Hoffman, 345 So.2d 1 (La.1977), recognizes that a majority of the judges of the Criminal District Court for the parish of Orleans selected prospective jurors for voir dire examination in the order in which they appeared on the petit jury venire sheet. In the Hoffman case this practice was held to be contrary to Article 784 of the Code of Criminal Procedure in effect at the time. When the instant case was tried in January 1977 that article required that “In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court.” However, the Hoffman decision, rendered on April 26,1977, interpreting the same provision, determined that the interests of the administration of justice would best be served by giving that decision prospective application only, confining its effect to those cases wherein a jury panel is selected after finality of that opinion. Cases already submitted to this Court for decision were also to be controlled by the Hoffman decision. In effect the Hoffman decision approved the practice of calling prospective jurors in the order in which their names appeared on the petit jury ve-nire list in cases where the jury was selected prior to April 26, 1977, condemning the practice in subsequent cases only.

Selection of the jury panel in the instant case occurred on January 5,1977, more than three months before the April 26,1977 decision in Hoffman. The instant case was not filed in this Court until October 27,1977; it had not, therefore, already been submitted to this Court for decision at the time of the Hoffman decision.

This assignment is without merit.

Assignment 4: At the trial the prosecution exercised all twelve peremptory challenges, ten challenges were against black and two were against white jurors. Although no objection was made to these peremptory challenges at the time, the defense contends that it was error for the trial judge to permit them.

Permitting peremptory challenges of a racial group as in this instance, it is contended, amounts to invidious discrimination and a denial of the accused’s constitutional right to a trial by an impartial jury representing a cross section of the community.

Aside from the fact that no objection was made at the trial to the State’s exercise of its peremptory challenges, La. Code Crim.Pro. art. 841, no attempt was made to introduce evidence to show any historical pattern of exclusion of black jurors in this district or in this division of court. There is, therefore, no merit to this assignment.

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), announced the proposition that absent a showing of purposeful discrimination by a historical pattern of exclusion of an identifiable class, the courts will not inquire into the motive of the State in exercising its peremptory challenges in a particular case. Thus, the mere circumstance that the State has used its peremptory challenges to strike qualified members of the defendant’s race does not constitute a denial of equal protection.

According to the defense argument, by implication the decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), modified the rule of Swain v. Alabama in cases where the prosecution has peremptorily challenged a large percentage of a racial group. In that situation, it is contended, the Taylor case places the burden upon the prosecution to prove that its official acts were not the result of unconstitutional racial discrimination. The argument is not well-founded.

On a number of occasions since the decision in Taylor v. Louisiana, this Court has reaffirmed and applied the rule of Swain v. Alabama. State v. Bias, 354 So.2d 1330 (La.1978); State v. Rhodes, 351 So.2d 103 (La.1977); State v. Bennett, 341 So.2d 847 (La.1977); State v. Haynes, 339 So.2d 328 (La.1976); State v. Reed, 324 So.2d 373 (La.1975). In our view the decision in Taylor v. Louisiana does not modify the rule of Swain v. Alabama, as defendant contends. Swain v. Alabama is applicable to the case at bar.

Assignments 5, 6 and 7: In order to avoid the testimony of a medical expert relative to the cause of the victim’s death, defense counsel offered to stipulate to the cause of death. The State rejected the offer, and the doctor’s testimony was received. Thereafter, five photographs were introduced by the State over defense objection. It is contended that because defendants offered to stipulate to the cause of death the photographs introduced for that purpose were gruesome and served only to inflame the jury to the prejudice of the defendant,

One of the photographs depicts the face of the victim showing bruises and lacerations. Another depicts the victim’s bruised hand. A bed splattered with blood is shown in a third. These photographs are not gruesome and are incapable of inflaming the emotions of an observer to any appreciable extent. The bruises and lacerations on the face and hands of the victim are not major wounds, and the blood on the bed appears only as a black spot in that black and white photograph.

The two remaining photographs, however, are gruesome. One is of the upper torso of the victim showing at least six knife wounds while the other is a photograph of the victim as she lay dead on a couch on her porch after succumbing to the knife wounds. Her clothes and legs contain large blood stains. Although he recognized that these photographs are gruesome, the trial judge admitted them into evidence on the ground that their probative value outweighed their prejudicial effect. The photographs were properly admitted.

As a general rule determining the proper use of photographs at trial is largely within the sound discretion of the trial judge who can decide best whether they serve a proper place in the jury’s enlightenment. His ruling in this respect will not be disturbed in the absence of an abuse of discretion. State v. Sawyer, 350 So.2d 611 (La.1977); State v. Barber, 271 So.2d 853 (La.1973); State v. Giles, 253 La. 533, 218 So.2d 585 (1969).

Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. State v. Johnson, 198 La. 195, 3 So.2d 556 (1941). On this principle this Court has held that photographs, even if gory, are admissible if they shed light on any issue. State v. Frezal, 278 So.2d 64 (La.1973); State v. Hamilton, 249 La. 392, 187 So.2d 417 (1966); State v. Scott, 198 La. 162, 3 So.2d 545 (1941).

The ultimate test to be applied before a gruesome photograph can be admitted into evidence is whether the probative value of the photograph outweighs its probable inflammatory effect. The evidence, of course, must also be relevant for some purpose. And a balance must be struck between the photographs’s probative value and its tendency to overwhelm reason and to associate the accused with the atrocity without sufficient evidence. State v. Smith, 327 So.2d 355 (La.1976).

These photographs helped to establish the cause of death, the extent of the struggle, and the amount of blood the wounded victim lost. Because of this the photographs linked the defendant and his bloodstained clothing to the victim’s struggle and death. These two photographs, therefore, had probative value, which, when considered with the other evidence in the case, outweighed their inflammatory effect. There were no eyewitnesses to the actual killing; and the burden of proof, imposed upon the State to prove the killing beyond a reasonable doubt by circumstantial evidence, required a showing that that defendant was involved in the killing by facts other than his entry into and departure from the victim’s house. These photographs were part of the tangible circumstantial evidence which supplied that connection. They were essential to the State’s case.

The defense argument that reference to these photographs in the prosecutor’s closing argument compounded their inflammatory effect is not properly before this Court. No objection was made to the State’s closing argument at the trial. La. Rev.Stat. art. 841.

Assignment 7: A report of the victim’s blood type was prepared by a medical technologist who did not testify. However, the medical doctor who did testify identified the signature on the report to be that of the technologist. No objection was made to the doctor’s testimony concerning the report. When the report was later introduced in evidence, defense counsel stated there was no objection to its introduction. The defense argument that it was improperly admitted is therefore without merit.

Assignments 8 and 9: Prior to trial defendant moved that the court order the prosecution to furnish to him in advance of trial a copy of all information, data and computer printouts pertaining to the prior voting record of each and every prospective juror. The trial judge denied this motion.

At the voir dire examination, defense counsel asserts in brief, that he was denied the right to examine prospective jurors relative to their previous voting record in the trial of cases. There is, however, no clear showing that such a right was denied or, if it was, that an objection was made to such a ruling.

There is no constitutional or statutory law which specifically requires the State to disclose the contents of these voting lists. The defendant may obtain the same information by voir dire examination of the prospective jurors. State v. Holmes, 347 So.2d 221 (La.1977); State v. Singleton, 352 So.2d 191 (La.1977). Here defendant’s failure to establish that he was deprived of the right to inquire on voir dire into the voting record of prospective jurors, and his failure to object to the alleged deprivation, indicates there was no undue limitation of the right to full voir dire examination. These assignments are therefore without merit.

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

TATE, J., concurs and assigns reasons.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs and assigns reasons.

TATE, Justice,

concurring.

I have reservations concerning our treatment of certain of the assignments, which pose potentially serious and reversible issues. The possible or actual errors to which I refer are raised by the following assignments (as re-numbered by our majority opinion):

Assignments 5, 6, and 7 relate to the introduction of gruesome photographs. (The trial court commendably excluded others.) The sole objection at the trial was that they were gruesome and repetitive. The defendant points out also an apparent misuse of one of them in an inflammatory manner during the prosecutor’s rebuttal argument (to which no objection was made, however).

While I ultimately concur with the majority’s rejection of these assignments, I note the argument raised by brief: that the defendant had offered to stipulate the cause of death. Under State v. Gilmore, 332 So.2d 789 (La.1976), if offered, this stipulation should have been accepted by the trial court as a means to prove the fact at issue (the death by beating and stab wounds, already proved by the coroner’s testimony), without injecting into the jury trial the extraneous prejudice resulting by gruesome photographs ostensibly introduced only as probative of the death by beating and stab wounds.

However, the stipulation was offered early in the trial. It was offered only to avoid the minute detail of the coroner’s testimony as to the wounds. It was not offered in connection with (and in lieu of) the photographs later offered in the trial.

The Gilmore reason for the objection to the photographs, if intended, was not made with sufficient specificity to bring home to the trial judge the ground of the objection now relied upon on appeal. La.C.Cr.P. art. 841. Had this ground been urged, the trial judge (who conscientiously excluded many of the photographic exhibits offered) may well have found merit to it.

Assignments 8 and 9: These relate to the trial court’s denial of the defendant’s request that the prosecutor furnish him the prior-jury voting records of the prospective jurors before the trial, while at the same time denying the accused the right to examine these prospective jurors at voir dire as to his issue. Under State v. Holmes, 347 So.2d 221 (La.1977), the prosecutor is not obliged to furnish such information (a ruling to which I dissented) because defense counsel may examine prospective jurors concerning this matter. It seems to me that error occurred in the denial of voir dire examination, even if not (as I myself believe) in the denial of the pretrial motion. Nevertheless, I am not inclined to feel, at least in view of the present uncertainty of the jurisprudence, that the error reaches reversible dimensions.

Accordingly, with these reservations, I concur.

CALOGERO, Justice,

concurring.

I concur in the majority’s determination that the assignments relating to the introduction of photographic evidence lack merit, especially in view of my opinion that the two photographs recognized by the majority and the trial judge as gruesome actually are not that at all. Even in cases where I would concede the gruesome character of photographic evidence tendered by the State in a criminal trial, appreciation of the substantial burden of proof the prosecution bears would prompt my consideration of legitimate purposes served by the introduction of such photographs other than those hastily stated in the course of trial, in response to defense objection. Even as it fashioned the rule articulated in State v. Gilmore, 332 So.2d 789 (La.1976) discussed in the concurrence of my brother Tate, this Court recognized that a defendant may not, by means of a unilateral stipulation, rob the State’s evidence of its fair weight or deprive the prosecution’s evidence of its legitimate moral force.

DENNIS, Justice,

concurring.

I concur in the decision of the Court but disagree with the majority opinion’s manner of resolving Assignment of Error Number 4 primarily by following Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

In the Swain case, the defendant, a nineteen-year-old Negro charged with the rape of a seventeen-year-old white girl, was convicted by an all-white jury in Talledega County, Alabama, and sentenced to death. Although the county’s population was 26% black, and ten to fifteen percent of the jury venires were black, no Negro had actually served on a petit jury for fifteen years. The absence of blacks from trial juries was attributable to the operation of the Alabama struck jury system, a variant of the peremptory challenge system, in which veniremen remaining after excuses, exemptions, and removals for cause are “struck”— the defense striking two and the prosecutor striking one alternatively until only twelve jurors are left. In the Swain case there were eight blacks on the venire; two were exempt, and the prosecution struck the rest. Swain contended that he had been denied equal protection of the laws by racially discriminatory selection of the jury venire and the petit jury. Swain argued that discrimination was accomplished by use of the State’s peremptory strikes in the particular case to remove all black veniremen; and by use of the peremptory strike system through the years in a scheme to exclude all blacks.

The Supreme Court rejected Swain’s contentions and affirmed the judgment of conviction. 380 U.S. 202, 227, 85 S.Ct. 824, 839, 13 L.Ed.2d 759, 777 (1965). As we read the opinion of the Court, although it is subject to differing interpretations, the decision was based on several interrelated reasons. The underlying rationale appears to be that the equal protection clause of the Fourteenth Amendment does not prohibit a state prosecutor from peremptorily challenging a venireman because of his race if the fact of his race in that particular case would lead in good faith to the conclusion that the juror is likely to be partial. In order to protect the efficacy of the peremptory challenge, and to prevent the disruption of trials by defendants’ continual charges of prosecutorial abuse, the Court created a presumption that in any particular case the prosecutor has invoked the State’s peremptories because of good faith trial-related considerations. The presumption is not destroyed by the mere fact that in the case at hand all blacks were removed from the jury. Perhaps the defendant by proof of a State’s systematic striking over a period of time of blacks in the selection of petit juries, or by eliciting an admission from the prosecutor that discrimination accounted for his rejection of blacks, may raise a prima facie case under the Fourteenth Amendment. However, the Court found it unnecessary to decide this last question because it thought that the record in the case was not sufficient to demonstrate systematic exclusion.

The opinion of the Court in Swain v. Alabama has been critically assayed from a number of standpoints. The most fundamental objection is that the Court, by placing the State’s peremptory challenge beyond realistic scrutiny, converted the challenge from a device for protecting defendants into a tool for restricting the availability of the defendant’s constitutional right to equal protection of the law in jury selection. The State’s use of peremptory challenges to totally exclude blacks from petit juries would seem to present a classic prima facie case of racial discrimination. The majority opinion in Swain, however, refused to acknowledge the natural inference to be drawn from these facts, and instead saddled the defendant with an impossible burden.

The Swain decision has also been criticized for its questionable historical analysis of the nature and purpose of the peremptory challenge, from which the Court inferred that the prosecutor’s use of the challenge should be given the same protection as it receives in the defendant’s hands. This view is not only historically suspect, but it also ignores constitutional rights of the accused which could be imperiled by the State’s use of peremptory challenges. The Court apparently believed that exclusion of black jurors would not prevent a trial by a fair and impartial jury because they were impartial white jurors. However, in cases such as Swain, and in any case where racial tensions are high, an excluded black juror is more likely to be replaced by a hostile white juror.

Since the Swain decision, defendants have objected frequently to prosecutors’ removal of blacks from trial juries by peremptory challenges, but the Supreme Court’s “systematic exclusion” test has, according to our research, proved insurmountable in all reported cases. But see, United States v. McDaniels, 379 F.Supp. 1243 (E.D.La.1974), in which the defendant was granted a new trial in the interest of justice because the government had peremptorily challenged six black jurors despite her failure to prove a prima facie case of systematic exclusion. See also, California v. Smith, No. 42219 (Alameda County Super. Ct. 1968), in which a trial court apparently refused to follow Swain and granted a mistrial because the State used racial peremp-tories in the case on trial. A. Ginger, Jury Selection in Criminal Trials, 518 (1975).

However, because the State’s peremptory challenge is not a federally protected right, Louisiana is free to afford its citizens greater protection against invidious peremptory challenges than the minimum required of a state by the Fourteenth Amendment as interpreted by the Supreme Court in Swain. In its present constitution, and in all previous state charters beginning with the Constitution of 1879, Louisiana has chosen not to guarantee peremptory challenges to the prosecution, while assuring criminal defendants the right to challenge jurors peremptorily.

Article 1, § 3 of the 1974 Louisiana Constitution absolutely prohibits discrimination against a person because of race or religion. The wording of the constitution and the transcript of the Constitutional Convention Debates indicate that the framers intended to abrogate all forms of official discrimination whatsoever with respect to these classifications. Accordingly, our state declaration of the right to individual dignity goes beyond the decisional law construing the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment as interpreted in Swain, apparently allows a prosecutor to exclude a venireman peremptorily because of his race if it is based on “trial-related considerations.” Our state charter, on the other hand, while allowing reasonable discrimination because of other characteristics, permits none because of race or religion, even though the discrimination may be reasonably related to a legitimate state objective such as a criminal prosecution.

Accordingly, if we were required to reach the issue in the instant case, Article I, § 3 of the Louisiana Constitution of 1974 would require that we reject Swain as precedent and grant greater protection against racial discrimination in the selection of petit jurors than that provided by the Fourteenth Amendment as interpreted in Swain. However, an examination of the record in the instant case reflects that the defendant did not objéct at any time during the trial to the discriminatory exercise of peremptory challenges by the prosecuting attorney. Under these circumstances, I agree that the assignment has no merit, but for the reason that it was not properly preserved for our review.

I also join in the concurring reasons pertaining to Assignments of Error Numbers 5, 6 and 7 filed by Mr. Justice Tate.

      . The assignments of error have been renumbered to present a proper numerical sequence.

      . Arguably, an admission by a prosecutor that he employed peremptory challenges to exclude blacks regardless of trial considerations in the particular case at hand will suffice to raise a prima facie case under the Fourteenth Amendment. 380 U.S. at 227, 85 S.Ct. 824. See, Barham, The Peremptory Challenge: A. Prosecutorial Strategem to Circumvent Due Process, 1 So.L.Rev. 16,-(1974).

      . See, Kuhn, Jury Discrimination: The Next Phase, 41 So.Cal.L.Rev. 235 (1968); Mishkin, The Supreme Court, 1964 Term, 79 Harv.L.Rev. 56 (1965); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157 (1966); Note, 75 Yale L.J. 322 (1965). Cf. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (Goldberg, J., dissenting).

      . See, Barham, The Peremptory Challenge: A Prosecutorial Strategem to Circumvent Due Process, 1 So.L.Rev. 16, 24 (1974); Kuhn, Jury Discrimination: The Next Phase, 41 So.Cal.L. Rev. 235, 288 (1968); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157 (1966). Cf. Swain v. Alabama, 380 U.S. 202, 244, 85 S.Ct. 824, 13 L.Ed.2d 759, 786 (1965) (Goldberg, J., dissenting).

      . See, Kuhn, Jury Discrimination: The Next Phase, 41 So.Cal.L.Rev. 235, 301 (1968); Mishkin, The Supreme Court, 1964 Term, 79 Harv.L. Rev. 117, 137 (1965); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157 (1966).

      . See, e. g., Swain v. Alabama, supra; United States v. Nelson, 529 F.2d 40 (8th Cir. 1976); United States v. Ming, 466 F.2d 1000 (7th Cir.), cert. denied. 409 U.S. 915, 93 S.Ct. 235, 34 L.Ed.2d 176 (1972); United States v. Carlton, 456 F.2d 207 (5th Cir. 1972); Brown v. Crouse, 425 F.2d 305 (10th Cir. 1970); United States v. Harris, 368 F.Supp. 697 (E.D.Pa.1973), aff'd, 498 F.2d 1164 (3d Cir. 1974); United States ex rel. Dixon v. Cavell, 284 F.Supp. 535 (E.D.Pa.1968); Watts v. State, 53 Ala.App. 518, 301 So.2d 280 (1974); People v. Newton, 8 Cal. App.3d 359, 87 Cal.Rptr. 394 (1970); Allen v. State, 231 Ga. 17, 200 S.E.2d 106 (1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 919, 39 L.Ed.2d 112 (1974); People v. King, 54 Ill.2d 291, 296 N.E.2d 731 (1973); State v. Jack, 285 So.2d 204 (La.1973); Commonwealth v. Cook, 364 Mass. 767, 308 N.E.2d 508 (1974); People v. Redwine, 50 Mich.App. 593, 213 N.W.2d 841 (1973); State v. Brookins, 468 S.W.2d 42 (Mo.1971); Noah v. State, 495 S.W.2d 260 (Tex.Cr.App.1973).

      . See, Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157, 1170 (1966). Cf. Swain v. Alabama, 380 U.S. 202, 244-45, 85 S.Ct. 824, 13 L.Ed.2d 759, 785-86 (1965) (Goldberg, J., dissenting).

      . See, Barham, The Peremptory Challenge: A Prosecutorial Strategem to Circumvent Due Process, 1 So.L.Rev. 16, 26 (1974); Kuhn, Jury Discrimination: Jury Discrimination: The Next Phase, 41 So.Cal.L.Rev. 235, 293 (1966).

      . Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154 (1919).

      . La.Const. art. I, § 17; La.Const. art. I, § 10 (1921); La.Const. art. X (1913); La.Const. art. X (1898); La.Const. art. VIII (1879).

      . Barham, The Peremptory Challenge: A Prosecutorial Strategem to Circumvent Due Process, 1 So.L.Rev. 16, 19 (1974).

      . La.Const. 1974, art. 1, § 17.

      . La.Const. art. I, § 3 provides: .
      “No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”

        . Id.] State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts Aug. 30, 1973 at 3:
      “The authors believe that there is absolutely no basis for any discrimination of any sort on the basis of, on account of race or religion, but they do believe that there can be discrimination if it is not arbitrary, not capricious, and not unreasonable as far as the other items contained in the original committee report are concerned.
      “The next clause provides that there shall be no discrimination against a person, no discrimination of any sort, on account of ‘race, or religious ideas, beliefs or affiliations.’ ”
      Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 6-10 (1974); Jenkins, The Declaration of Rights, 21 Loy.L.Rev. 9, 16-19 (1975).

      . Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 6-10 (1974); Jenkins, The Declaration of Rights, 21 Loy.L.Rev. 9, 17-18 (1975).

      . Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. at 8 (1974): “[T]he provision does not allow the traditional analysis with respect to race or religion. The second sentence (which uses absolute language) . . . permits no discrimination whatsoever with respect to race or religion.”


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Charles Ray JACKSON.
    No. 61606.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      Marion B. Farmer, Covington, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Kurt F. Sins, Asst. Dist. Attys., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant Charles Ray Jackson was charged in a grand jury indictment with simple burglary of the residence of Cyrus Plummer on September 26, 1976. He was found guilty in a jury trial, multiple billed, found guilty as an habitual offender and sentenced to imprisonment at hard labor for twelve years. Seven assignments of error are relied upon by the defendant on this appeal.

Assignment 1 — The State notified defendant pursuant to Article 768 of the Code of Criminal Procedure that it intended to use in evidence the confessions made by Jackson on October 4, 1976. Defense counsel then filed a motion to suppress this confession.

At the hearing held on the motion to suppress testimony was adduced. From this evidence it was ascertained that Deputies Benjamin White and Bryan Sanders of the St. Tammany Parish Sheriff’s Office, received information that a burglary had been committed at a service station in Mad-isonville on the night of October 3, 1976. Jackson and Robert Richardson were seen in Madisonville that night by Officer John Passero, patrolman for the Madisonville Police. In an effort to obtain additional information relating to that burglary White, Sanders and Passero drove to the residence of Robert Richardson on 31st Avenue in the city of Covington at 12 o’clock noon the following day.

At the 31st Avenue residence they inquired of Richardson whether Jackson was there. Jackson was inside the house at the time, and while the deputies waited outside to speak to him, a number of people gathered around. When Jackson appeared, they asked if he was in Madisonville the night before. Jackson said that he was, and he named the people he was with at the time. Finding that further private, uninterrupted conversation would be impracticable in the presence of the curious who had gathered, the officers asked Jackson “if he would mind” coming to the sheriff’s office to talk to them. Jackson agreed and he and Richardson drove to the sheriff’s office with the deputies in their car.

Upon arrival they entered the office in the Sheriff’s Annex of the Courthouse where other officers were at work. After preliminary questioning Richardson departed. At that time when Deputy Sanders questioned Jackson he advised him of his rights. While talking to Jackson and to other officers, and by comparing reports of other burglaries, they determined that some of the ill-fitting clothes Jackson was wearing appeared not to be his and had probably been stolen in a burglary of Althea Davis’ residence.

Jackson was then taken into the adjoining interrogation room by Deputies White and Sanders. Officer Davis, who was the son of the burglary victim, was called and asked if he could identify the clothing of his brother, taken from his mother’s house. He could not, but summoned his brother who identified the clothing as his, taken during the burglary. With this information — the first real evidence implicating Jackson — the officers placed him under arrest and advised him of his rights. After he signed the printed waiver of rights form, Jackson was questioned and gave a statement, which was recorded and later transcribed. In that confession, shortly after two o’clock, he set forth the details of the burglary at the Davis residence and declared that the statement was made of his own free will without having been influenced in any way by fear, threats, drugs, promises or rewards. Jackson was then booked and jailed at 4:20 that afternoon.

In the meantime, after the confession had been recorded, and before the controverted confession later made relating to the burglary in this case, investigations were conducted relating to burglaries in Covington at the Keifer and Plummer residences which implicated Jackson. During this time he was taken to the Covington City Police Station, where he admitted to the city police that he had been advised of his rights and where he was again questioned. At that time Jackson confessed orally to those burglaries. At his request the city police telephoned Richardson in an effort to locate someone who would sign Jackson’s bail bond.

Then, about 5:30, the officers returned with Jackson to the interrogation room in the Sheriff’s Annex where they again advised him of his Miranda rights and questioned him about what appeared to be a very expensive wrist watch he was wearing, which they had observed while he was being questioned about the Davis burglary. Jackson was unable to say where he got the watch or to state its value. For this reason the officers again reviewed the reports of recent burglaries in the adjoining office. They found that a watch was referred to in a report of a burglary at the residence of Cyrus Plummer, which matched the description of the watch being worn by Jackson. With this information they concluded that Jackson was possibly implicated in the Plummer burglary. Deputy White therefore resumed the interrogation with the help of a city policeman who was assisting in the case. Previous inspection of the watch had revealed that Plummer’s initials were inscribed on the back. Plummer had been called and had identified the watch as the one stolen during the burglary of his residence.

Faced with this damaging evidence, Jackson confessed to the Plummer burglary in the presence of Deputies White and Sanders, declaring, “I was walking down the track and I turned off in his yard. I took out the screen and raised the window up and crawled in through the window.” A pistol, the gold watch, and small change were taken. After the Plummer statement was taped, Jackson was booked and jailed. It was then after ten o’clock.

All officers involved in conversation with Jackson during this time testified categorically that he was not intimidated, beaten or threatened. Also, until he was arrested for the Davis burglary he was free at all times to leave. He was not handcuffed or otherwise restrained.

In an effort to overcome the foregoing State evidence, the defense called Hampton A. Porter to the stand. He was then a prisoner in the St. Tammany Parish jail, convicted of armed robbery and sentenced to 99 years, awaiting the results of his appeal. Porter testified that when Jackson returned to jail that night after ten o’clock he was bent over and complaining that he was hurt. Porter observed bruises on his rib cage and that he was urinating blood.

Another inmate of the parish prison, Johnny Richardson, who was serving time for burglary, testified for the defense. He heard Jackson complain that he had been beaten and saw him urinating blood. The litany was repeated by a third prisoner, Jerome Hall. He saw Jackson the night of October 4, 1976 and the next day. Jackson, he testified, was cramped over, his ribs were bruised and blood was observed in the toilet after it was used by Jackson. All of these witnesses advised Jackson to see a doctor. However, no evidence supports a finding that any of them or Jackson either sought or obtained medical attention. And the jail cards prepared at the time a prisoner is admitted indicated that Jackson made no complaint that he was hurt. If he had, the procedure would require that he be transported to a doctor immediately.

Jackson’s testimony was to the effect that he was choked, beaten, struck in the face, struck on the head by his tormentors’ knuckles and hit on the knees with a pipe. Five of the officers who were present at one time or another during the investigation, Davis, Primus, Meiners, White and Sanders, are accused of using this force to compel the two confessions Jackson gave on October 4.

However, the State rebutted each and every one of defendant’s allegations with specific contrary testimony from the officers involved in the investigation. In doing so the State met the burden of rebutting the specific testimony introduced on behalf of the defendant concerning the charges that coercive measures or intimidation had been employed. State v. Hills, 354 So.2d 186 (La.1977); State v. Simmons, 328 So.2d 149 (La.1976).

As the habitual offender charge indicated, in addition to the two burglaries to which he confessed on October 4, 1976, Jackson had previously been convicted of theft of an automobile on the 11th of July 1974; simple burglary on October 14, 1974; and theft of an automobile valued at between $100 and $500 on May 30, 1974. He was therefore knowledgeable concerning interrogation, arrest and jails. His “worldliness” and previous experience with police procedure undoubtedly had a substantial bearing upon the credibility of his testimony. Credibility of his prisoner-witnesses was subject to the same circumspection.

After hearing the witnesses the trial judge decided that the State had sustained the burden of proof and that the confessions were free and voluntary. Accordingly, he denied the motion to suppress and the defense assigned the ruling as error.

Undoubtedly the credibility of the witnesses was an important factor in the judge’s decision. On appeal great weight should be accorded a determination by the trial judge based upon the credibility of witnesses. For, as this Court has recognized, the voluntariness of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to voluntariness will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977).

Taking these principles into consideration, the crucial issue of this case involves whether Jackson was in custody or detained while being questioned before he was advised of his Miranda rights. The interval of time in question began when the officers first contacted Jackson at the Richardson residence and ended when he was given his first Miranda warning by Deputy Sanders in the office of the Sheriff’s Annex, prior to the formal interrogation which ensued thereafter in the small interrogation room. The only significant questions during that period were asked when Jackson was at the Richardson residence where he was asked if he was in Madisonville the night before and those relating to his ill-fitting clothes in the office after arrival at the Annex. For thereafter, the Miranda warnings were repeated and Jackson confessed.

Jackson was not compelled to go with the officers, he was asked if he would “mind” going. He responded that he did not and joined the officers voluntarily. At no time was he restrained, handcuffed or ordered to remain at the “office” until he was arrested. Prior to that time he was free to go and if he had asked would have been allowed to do so. Not until his arrest was his questioning under detention or custody. For, under these facts and circumstances, the custody and detention contemplated by the law had not yet developed to the extent that a Miranda warning was required until his arrest, although the testimony of Deputy Sanders is to the effect that a Miranda warning was given before any questioning at the office. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and La.Const. art. I, § 13.

With due regard to the finding of the trial judge, and on the basis of this Court’s independent review of the record, the motion to suppress was properly denied.

Assignment 2 — While Deputy White was testifying on direct examination, he stated that the Plummer confession was given shortly after Jackson confessed to the Davis burglary, and it was not yet dark when Jackson confessed to the Plummer burglary. This was obviously inaccurate because the transcribed version of the Plummer confession showed that it was recorded at 10:15 on the night of October 4.

In an effort to rehabilitate his witness, the prosecutor pointed out that the hearing on the motion to suppress was being held five months after the confessions were given and that the happenings surrounding the confession must have required more time, indicating that the witness was in error about the time of the Plummer confession.

Defense counsel objected that the prosecutor was leading the witness and attempting to impeach him. The trial judge overruled the objection and this assignment claims error in the ruling.

As this interrogation is viewed it is not strictly speaking an effort by the State to impeach its witness. It is more properly an attempt to clarify an obvious discrepancy in the witnesses’ testimony arising from a fault of memory due to the passage of time. The witness White had dictated the time of the confession into the recorder as 10:15 o’clock on the night of October 4. His statement that the confession was complete before dark was error, creating a situation which required explanation. Getting White to admit that he was in error was a matter which concerned the weight of his testimony. The questioning only emphasized what was already apparent from the record.

While it is not proper to impeach one’s own witness, it is permissible to clarify a basis of misunderstanding. State v. Weems, 358 So.2d 285 (La.1978). Furthermore, defense counsel was given wide latitude in cross-examining the witness on this alleged attempt by the State to rehabilitate, a fact which dispels any claim of undue prejudice in this hearing before the judge alone. State v. Sneed, 328 So.2d 126 (La.1976). This assignment is without merit.

Assignment 3 — Violations of the sequestration rule are claimed by the defense in connection with the testimony of several State witnesses. Before ruling on defense objections to the testimony of witnesses who had violated the rule of sequestration, the trial judge required that the witnesses involved be interrogated under oath to determine whether their transgression had any prejudicial effect. In no instance was it disclosed that the technical violations were willful or harmful to the defendant. Satisfied that this was the case, the trial judge overruled the objections and permitted the witnesses to testify.

Sequestration is designed to prevent the influencing of witnesses by testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts. State v. Mullins, 353 So.2d 243 (La.1977). Article 764 of the Code of Criminal Procedure permits the court to modify its order in the interest of justice, a broad authorization vesting much discretion in the trial judge. A review of this record discloses no undue influence resulted to the witnesses in question from violation of the rule. There was, therefore, no abuse of discretion in the ruling of the trial judge.

Assignment 4 —It is contended that the trial judge erroneously permitted the prosecutor to ask Cyrus Plummer, the victim of the robbery, if he had given Jackson permission to go into his residence. Such a question implied that Jackson had in fact entered Plummer’s house, the defense argues, requiring that Jackson prove that he did not. The question was therefore prejudicial and impermissible.

Such a question was relevant to prove that Jackson entered Plummer’s house without the owner’s authorization, an essential element of the crime which the State was required to prove. La.Rev.Stat. 14:62. The question was therefore proper and the testimony to the effect that Plummer had not given his consent to Jackson’s entry was admissible.

Assignments 5 and 6 — Contentions are made that finding defendant to be a second offender under the Habitual Offender Law was invalid because the finding was based upon a previous guilty plea to a charge of burglary in Rapides Parish. Invalidity is claimed because in accepting the guilty plea the trial judge allegedly failed to define the crime of burglary, failed to advise defendant that his guilty plea could be used against him in a future multiple offender charge, the record did not show that defendant waived the delays for sentencing, and the Habitual Offender Law was being applied selectively against defendant because in the instant case he elected to stand trial instead of pleading guilty.

At the sentencing in Rapides Parish Jackson and Anthony Cheneau, who were jointly charged, were each represented by counsel. With respect to the contention that the burglary statute was not read to Jackson, the trial judge did ask him if his attorney had explained to him the law that he was accused of violating and the consequences of a guilty plea, to which Jackson responded that he had been so advised.

In addition to the extensive advice the trial judge gave Jackson concerning the rights he was waiving by a guilty plea, he advised him that his parole or probation could be revoked and the sentence resulting from his guilty plea could be added to any sentence he was required to serve as a result of a parole or probation revocation. While such advice did not precisely pertain to use of the guilty plea conviction in a future multiple offender charge, it did alert the accused to the fact that the conviction could have effect in the future.

The delays for sentencing under the specific language of Article 873 of the Code of Criminal Procedure do not apply to pleas of guilty in which case sentence may be imposed immediately.

There is no evidence in this record to support the contention that the Habitual Offender Law was applied selectively to Jackson.

Although there was no explicit reading of the statute on burglary, the effect of the proceeding was to accomplish the same result. Jackson had been advised of the law by his attorney and stated that he was in fact guilty of the charge under that law. And no authority has been cited which required the trial judge to advise Jackson that the conviction resulting from a guilty plea could be used in a future multiple offender charge.

Courts have held that failure to advise of collateral, but foreseeable, adverse consequences of a guilty plea does not permit the withdrawal of the guilty plea. Nor is the trial judge required to anticipate all of the peripheral consequences which may affect the defendant in the future as a result of a guilty plea. State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101; State ex rel. McChesney v. Henderson, 260 La. 1196, 258 So.2d 550 (1972), 482 F.2d 1101 (5 Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102.

In all other respects the advice given to Jackson at the time of sentencing was abundant and thorough. He was well aware of the charges to which he was pleading and the consequence of his plea. This assignment has no merit.

Assignment 7 — In a prayer for oyer in advance of trial defendant asked for a list of all State witnesses, including their addresses. The State replied that they were not required to furnish this information and the trial judge agreed.

No statute or jurisprudence requires that the State furnish a list of its witnesses to the defense.

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

CALOGERO and DENNIS, JJ., concur.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Christopher M. HOLLEY and Richard Raglen, Appellants.
    No. 61554.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.
    Paul J. Carmouche, W. Glen Mangham, Shreveport, for appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendants Holley and Raglen were convicted of possession of marijuana with intent to distribute, La.R.S. 40:966, and sentenced respectively to 18 months and 2Vi years at hard labor. Their appeal relies upon two. assignments, both arising from the denial of a motion to suppress some 60 pounds of marijuana seized at the time of their arrest.

The essentially factual issues raised by the two assignments are: (1) Was there probable cause for the warrantless arrest of the defendants in their motel room?; and (2) Even if so, did the arresting officers’ entrance into the adjoining bathroom (in which the marijuana was discovered by the officers, allegedly inadvertently as they reasonably sodght to insure their own safety against possibly armed companions of the- arrestees) constitute an illegal warrant-less search of this adjoining bathroom, since not reasonably incident to the bedroom arrest, see Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and State v. Ranker, 343 So.2d 189 (La.1977)?

The assignments raise substantial issues, but these essentially involve our review of whether the trial court erred in its appreciation of the factual evidence and in its evaluation of the witness’s credibility. On appeal, the reviewing court accords great weight to such factual determinations of the trier of fact, and it does not disturb them unless they are clearly erroneous. State v. Hall, 257 La. 253, 242 So.2d 239 (1970).

Reviewed by such standard, we do not find reversible error, and we see no need to detail the facts.

With regard to the second stated issue, the factual question is indeed close. Nevertheless, we are unable to find that the trial court erred in finding that the evidence shows that the officers entered the adjoining bathroom with a reasonable expectation it might be a place of danger for them (in which others lurked), in connection with their arrest of the defendants in the motel room. See Tr. 52-54.

The trial court thus found that the evidence was inadvertently discovered in a quick and cursory security check of the immediate premises; a check which was itself based upon a reasonable fear of danger justifying such a check. Consequently, the trial court rejected the contention that the bathroom check was an illegal exploratory search not reasonably incident to an arrest, such as contravenes the principles enunciated in Chimel and Ranker, cited above.

Under these facts, as reasonably found by the trial court, we find no error in its denial of the motion to suppress the marijuana discovered in the bathroom. See, for example: United States v. Clemons, 503 F.2d 486 (CA 8, 1974); United States v. Mulligan, 488 F.2d 732 (CA 9,1973); United States v. Looney, 481 F.2d 31 (CA 5, 1973); United States v. Briddle, 436 F.2d 4 (CA 8, 1970), certiorari denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971).

Accordingly, we affirm the convictions and sentences.

AFFIRMED.

SUMMERS, J., concurs.


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

text:
    STATE of Louisiana, Appellee, v. David MARCHAND, Appellant.
    No. 61722.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      Harold J. Brouillette, Chief Indigent Defender, Michael F. Kelly, Asst. Indigent Defender, 12th Judicial Dist. Indigent Defendant Office, Marksville, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeannette Theriot Knoll, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of simple burglary, La.R.S. 14:62 (1972), and sentenced to seven years’ imprisonment at hard labor. His Assignment of Error No. 5 presents reversible error.

Assignment 5

By this assignment, the defendant asserts that the trial court erred in denying his motion for a new trial. The ground asserted for the motion is that unauthorized and prejudicial statements were made to the jurors by the deputy sheriff who served as their bailiff.

The uncontroverted facts show the following:

At the close of the trial, the jury retired for deliberation at 4:42 p. m. Several hours later, the bailiff conveyed a first request of the jury that the trial judge allow it access to the alleged confession made by the accused. The trial judge refused this request, since a statute prohibits access of the jury to written evidence and requires the jurors to rely upon their memory. La.C.Cr.P. art. 793; State v. Freetime, 303 So.2d 487 (La.1974) (conviction reversed, where over objection the jury was allowed to obtain the defendant’s confession for use during its deliberations).

About an hour later, at about 9:30 p. m., a juror asked the deputy again to request the judge to let the jury see the confession remarking, “If we don’t have it, we may be here all night.”

The deputy communicated this second request to the trial judge, including the comment that the jury would be in session all night if the request were not granted.

The judge stated that he would not permit the confession to be sent to the jury-room unless both the state and defense agreed. The state agreed to the request, but the defense did not (suggesting that it was not proper to allow the jury to see this one statement alone, when several other important statements were likewise in evidence).

The judge then specifically instructed the deputy to inform the jury that their request was denied, and to tell the jury that “the judge said they cannot have the confession.” Instead of following the judge’s orders, the deputy returned to the hall outside the juryroom and informed two of the jurors (the foreman and another) that, “The district attorney said it was okay, the judge said it was alright, but the defense attorney said definitely not; couldn’t have it.”

The foreman then related this information to the remaining jurors. Within fifteen minutes, or at 9:50 p. m., the jury ended their deliberation and returned a verdict of guilty as charged.

Under these facts, if the evidence proving them is admissible (which the state contests), the unauthorized and prejudicial communication by the deputy to the jury presents reversible error.

Our law provides that the jury shall be sequestered during its deliberations, after the judge delivers the charge, so as to be secluded from outside communication. La.C.Cr.P. art. 791. The purpose of sequestering jurors is to protect them from outside influence and from basing their verdict upon anything other than the evidence developed at the trial. State v. Hunter, 340 So.2d 226 (La.1976); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).

An unauthorized communication to the jury by its bailiff requires reversal of the verdict, if the communication is prejudicial to the accused. State v. Harville, 170 La. 991, 129 So. 612 (1930); State v. Murray, 164 La. 883, 114 So. 721 (1927); State v. Langford, 45 La.Ann. 1177, 14 So. 181 (1893); State v. Dallas, 35 La.Ann. 899 (1883).

As stated in Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954): “In a criminal case, any private communication, contact, or tampering directly or indirectly, with a jur- or during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of all the parties.” A constitutional due process right of fair trial by jury, even, may be violated, if the trial jurors are subjected to influences through the attending bailiffs of the state which may cause their verdict to be influenced by circumstances other than the evidence developed at the trial. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1964).

We think it to be obvious that reversible (i. e., non-harmless) error here occurred, when the deputy improperly communicated to the jurors that defense counsel alone were preventing them from obtaining access to the confession they desired (but which a statute prohibits their access to after they have retired to the juryroom).

In the course of their five hours’ deliberation, the jurors had twice requested the confession. On the occasion of their second request, some fifteen minutes prior to their verdict, they indicated they would be in session all night unless they received the confession. Yet, when denied it (and informed that the denial was due to defense counsel), they reached a verdict (11-1) of guilty within fifteen minutes. “The promptness with which the jury returned their verdict after the statement was made by the sheriff creates a strong presumption that the jury was influenced by what was said by the sheriff,” State v. Harville, 170 La. 991, 129 So. 612 (1930).

Admissibility of Evidence

The state, however, objected to the admissibility of any evidence by the jurors proving the communication to them of the deputy’s statement. The state relies upon La.R.S. 15:470, which provides that a juror is incompetent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member.

The trial court allowed the two jurors to testify about their conversations with the deputy. It reasoned that, since these conversations took place outside of the jury-room (in the hall), they did not fall within the purview of La.R.S. 15:470. The trial court further allowed these jurors to testify that they related the information obtained from the deputy to the other jurors, subject to the state’s objection (which the trial judge felt to be valid), for the stated purpose of avoiding a remand.

The trial judge refused, however, to admit any testimony as to the effect of the receipt of this information by the other jurors or as to whether any juror changed his vote to guilty as a result of the receipt of the information.

The trial court was correct in the latter ruling, which disallowed testimony by the jurors as to the effect of the receipt of the information from the deputy on the jury deliberations and the votes of individual jurors. Such testimony by them would impeach their own verdict within the prohibition of La. R.S. 15:470. The policy behind that statute is to preserve the finality of jury verdicts and the confidentiality of discussion among the jurors in deliberation. State v. Abney, 347 So.2d 498 (La.1977); State v. Durr, 343 So.2d 1004 (1977).

However, despite the state’s contrary contention that La.R.S. 15:470 bars it, we find to be admissible the testimony of the jurors in proving the unauthorized and prejudicial communication made to the jury by their bailiff, i. e., the testimony by the jurors as to their conversation with the deputy in the hall, as well as their testimony that they related this information to the other jurors.

The testimony admitted did not relate to alleged juror misconduct, as to which their testimony is incompetent, see State v. Durr, 343 So.2d 1004 (La.1977). Instead, it dealt with the overt act of a third person which caused extraneous prejudicial information to be considered by the jury in reaching its verdict.

A majority of American jurisdictions have adopted an interpretation of the principle incorporated by La.R.S. 15:470, to the effect- that no testimony by a juror will be received (at least if objected to) as to jury conduct within the juryroom, not even testimony proving jury misconduct prohibited by statute. 8 Wigmore on Evidence, Section 2354 (McNaughton Rev.1961). All jurisdictions agree that the principle forbids evidence as to the mental processes and reasons of the jury in reaching a decision. Id., Sections 2348-50. See e. g., State v. Abney, 347 So.2d 498 (La.1977).

On the other hand, misconduct of a nature which invalidates a jury verdict may always be proved through the testimony of non-jurors; but American jurisdictions differ as to whether the jurors may themselves prove misconduct of a nature extraneous to the (always-inadmissible) content and course of the jury deliberations and the reasons for its verdict. See Wigmore, Sections 2354-55.

Louisiana decisions have held that jurors are competent to establish an overt act independent of the jury deliberations, if this overt act is in violation of law or of the statutory formalities designed to assure the impartiality of the jury finding and the jury’s freedom from influences extraneous of the evidence presented to it for its consideration. State v. Kifer, 186 La. 674, 173 So. 169 (1937) (prohibited-presence of prosecutor with grand jury during its deliberations and voting); State v. Riggs, 110 La. 509, 34 So. 655 (1903) (illegal intimidation of a juror within the juryroom); Hawkins v. New Orleans Printing & Publishing Co., 29 La.Ann. 134 (1877) (misconduct of the officer in charge of the jury, who bribed a juror).

In Kifer, where juror evidence was held admissible to prove an overt act (the presence of the prosecutor) exerting extraneous influence upon the jury deliberations in contravention of statute, this court held that the public policy of the statute prohibiting improper influence upon jury deliberations outweighed the policy of the prohibition by the statute (now La.R.S. 15:470) designed to prohibit jurors from impeaching the finding of their jury.

As in that decision, construing the two statutory prohibitions together, we do not believe that the statutory prohibition against jurors impeaching their verdict was legislatively intended to defeat the equally valid statutory prohibition against unauthorized communications to the jury which might influence their verdict, i. e., by preventing proof of it through the only means possible, the testimony of the jurors who received and transmitted the unauthorized communication.

Conclusion

Accordingly, we find merit to the assignment of error. Although we regret that the efforts of all counsel in the effective prosecution and defense of this case were aborted by the inadvertent act of the court bailiff, nevertheless this act deprived the accused of his constitutional and statutory right to an impartial jury verdict untainted by unauthorized communications received in contravention of statute, nor influenced by any consideration other than the defendant’s innocence or guilt on the basis solely of the evidence properly before the jury.

The verdict and sentence must therefore be reversed, and the case remanded for a new trial in accordance with law.

REVERSED AND REMANDED.

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

MARCUS, J., dissents and assigns reasons.

SUMMERS, J., dissents.

SANDERS, Chief Justice

(dissenting).

The threshold question here is whether or not the testimony of jurors that they received an unauthorized communication from the deputy sheriff in charge of the jury is admissible to invalidate the verdict.

The controlling statute is LSA — R.S. 15:470, which provides:

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

The statute prohibits a juror from testifying as to his own or another juror’s misconduct. But it does more. It also prohibits a juror from giving evidence to impeach any verdict. This prohibition is explicit and, absent legislative change, should be given effect by this Court.

When the statute is applied to the present case, it is clear that the testimony of the two jurors concerning the deputy’s communication is inadmissible since its purpose was to show that the jurors were influenced in their verdict by extraneous information. Its purpose was to impeach the verdict.

The court decisions elsewhere are divided on this question. Representative decisions supporting the view that a juror’s testimony is inadmissible under these circumstances are: Ruiter v. Knudson, 318 Ill.App. 211, 47 N.E.2d 534 (1943); DeGarmo v. Luther T. Mayo, Inc., 4 Cal.App.2d 604, 41 P.2d 366 (1935); People v. Pizzino, 313 Mich. 97, 20 N.W.2d 824 (1945); Gardner v. Minea, 47 Minn. 295, 50 N.W. 199 (1890); Sanitary Dist. of Chicago v. Cullerton, 147 Ill. 385, 35 N.E. 723 (1893); State v. Brittain, 89 N.C. 481 (1883); Anno.—Juror’s Testimony as to Tampering, 146 A.L.R. 514, 518-520.

There is little value, however, in counting the decisions elsewhere because the statute here is unambiguous. As written, it admits of no third-party communication exception. Compare Rule 606(b), Fed.Rules of Evidence, 28 U.S.C.A.

For the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

La. R.S. 15:470 provides that: “No juror . is competent ... to give evidence to explain, qualify or impeach . any verdict . . . .” I consider that the testimony by the jurors as to their conversation with the deputy in the hall, as well as their testimony that they related this information to the other jurors, is clearly prohibited by this statutory provision. Rule 606 of the Federal Rules of Evidence sets forth a similar prohibition but provides “except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the juror’s attention or whether any outside influence was improperly brought to bear upon any juror.” In my view, any change in the rule in Louisiana addresses itself to the legislature. Accordingly, I respectfully dissent.

      . We should note that the testimony indicates that the deputy is an honorable man of years of service and that his failure to follow the judge’s instructions probably stemmed from him being hard of hearing, not from any design to influence the jury to convict the accused.

      . La.R.S. 15:470 provides:
      “No juror, grand or petit, is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.”


author: DIXON, Justice.

text:
    STATE of Louisiana v. Charles UNGER, III.
    No. 61655.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

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

Charles Unger, III was indicted for the first degree murder of Anthony Pillittere (R.S. 14:30). After a jury trial, defendant was found guilty as charged. The jury recommended life imprisonment without benefit of parole, probation or suspension of sentence, and the judge sentenced him accordingly. On appeal defendant relies upon eight arguments on assignments of error for reversal of his conviction and sentence.

Assignment of Error No. 2

Defendant contends the trial court erred in ruling that testimony of a State witness regarding a statement made by the victim prior to his death was a dying declaration or part of the res gestae, and therefore admissible as an exception to the hearsay rule.

Leroy Shields, a security supervisor at Delgado Junior College in New Orleans, testified that at approximately 11:30 p. m. on May 21, 1977 he received a walkie-talkie transmission from Anthony Pillittere, a security guard at the college. According to Shields, Pillittere stated, “Come back by Building 8. I have been stabbed and am bleeding to death.” After summoning help, Shields rushed to Pillittere’s aid, finding the victim lying on his back in a driveway next to the campus building. Pillittere said only, “Help me.” Shields then noticed the defendant, who had been shot, lying on the ground a short distance away, with a knife beside him. The evidence at trial revealed that the victim was dead before the ambulance arrived a short time later. Pillittere had been stabbed twice in the back, the wounds penetrating his right lung and entering a major vein which goes through the heart.

Dying declarations are admissible if made when the declarant is fully conscious of his condition and under a sense of impending death after having abandoned all hope or expectation of recovery. C. McCormick, Handbook of the Law of Evidence, § 282 (2d Ed. 1972); 2 Wharton’s Criminal Evidence, §§ 315, 321 (13th Ed. 1972); State v. Vincent, La., 338 So.2d 1376 (1976). If the declarant believed in his impending death at the time he made the declaration, it does not matter that thereafter he believed he would recover, or entertained a momentary hope. Wharton, supra, § 322; State v. Newport, 178 La. 459, 151 So. 770 (1933).

Defendant contends that the victim’s subsequent statement of “help me” was contradictory to the belief that death was upon him and evidenced only an admission that the victim believed his condition to be serious rather than fatal. See Comment, 22 La.L.Rev. 651, 655-56 (1962). Therefore, he argues, the prior statement should have been excluded.

The victim’s request for help upon Shield’s arrival did not show such hope of recovery as to belie his prior statement that he believed his death to be near and certain. The seriousness of Pillittere’s condition and the short time between his injury and death further support a conclusion that the victim believed his death was imminent.

The trial judge properly allowed in the statement as a dying declaration.

Assignment of Error No. 3

Defendant alleges that the trial court erred in refusing to order the State to disclose the contents of an oral inculpatory statement defendant made to police officers while at Charity Hospital.

The trial judge sustained defendant’s motion to suppress the statement presumably on the basis that it was not freely and voluntarily made because at the time defendant was sedated and in pain. Defendant argues that he needed to know the contents of the statement in order to determine whether or not to testify in his own defense. His concern appears to be that the State still had the option to use the suppressed statement for impeachment purposes as a prior inconsistent statement.

Recently in State v. McGraw and Manchester (1978) (No. 61172), we held that the State, in offering an inculpatory statement for impeachment purposes, must establish beyond a reasonable doubt that the statement was freely and voluntarily given before it is introduced, just as is required for introduction of the statement in the case in chief. In light of the trial judge’s ruling suppressing the statement, it appears that the State would have been unable to satisfy the requisite showing. Defendant, therefore, presents a fallacious argument for production of the statement. In addb tion, the trial judge determined that the statement contained no exculpatory material; under Brady v. Maryland (373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)), therefore, the State had no obligation to produce the statement. There was no error in the trial judge’s action.

Assignment of Error No. 5

By this assignment defendant contends that the trial judge improperly denied his motion to quash the indictment for first degree murder. Defendant’s motion alleged that the district attorney’s answer to bill of particulars revealed that the prosecution possessed no evidence of aggravating circumstances, as enumerated in C.Cr.P. 905.4, which would allow a jury to consider imposition of the death penalty in a capital case. Therefore, he averred he should have been indicted for a lesser included offense rather than for first degree murder.

We find no merit in defendant’s contention. First degree murder is defined as “the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.” R.S. 14:30. The provisions of C.Cr.P. 905 et seq., added by La.Acts 1976, No. 694, § 1, only involve the circumstances which must be taken into account in determining the appropriate sentence for a defendant convicted of first degree murder, i. e. either death or life imprisonment. A jury imposing a sentence of death must find beyond a reasonable doubt that at least one statutory aggravating circumstance exists. C.Cr.P. 905.3, 905.-4. Thus, consideration of aggravating circumstances only affects the sentencing stage of the bifurcated proceeding in capital cases. It does not apply to the definition of the crime or to the nature of the proof necessary to show that defendant committed the substantive offense of first degree murder. There was no error committed in overruling defendant’s motion to quash.

Defendant further alleges that C.Cr.P. 905.4 is unconstitutionally vague and overbroad. Article 905.4(g) lists as an aggravating circumstance which the jury may consider in determining whether to impose the death penalty that “the offense was committed in an especially heinous, atrocious or cruel manner.” He argues that subsection (g) requires a subjective determination of the relative cruelty of the offense and fails to provide the jury with a constitutional standard. However, the jury recommended that defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Hence, defendant was not prejudiced by the jury determination made under the statutory scheme. This assignment is without merit.

Assignment of Error No. 6

Defendant complains that the trial court erroneously overruled his motion to quash the indictment on grounds that the jury commissioner used names for the central jury pool drawn exclusively from a list supplied by the registrar of voters. This, defendant asserted, was in direct contravention to an en banc order of the Criminal District Court for the Parish of Orleans requiring the jury commission to use voter registration rolls as the basic source of prospective jurors supplemented by nonvoting residents from other sources. Therefore, he alleges, he was denied his constitutional right to be tried by a representative cross section of the community.

While defendant’s argument is not a frivolous one, it does not require reversal of his conviction. As we stated in State v. Lawrence, La., 351 So.2d 493, 495 (1977):

“In State v. Daigle, 344 So.2d 1380, 1390 (La.1977), we expressed our concern over the propriety of using voter registration lists as the single source from which the jury venire is compiled. We held, however, that ‘. . .we cannot say that the use of voter lists without any showing in the record of . any discrimination against a class of people establishes that the jury pool did not represent a fair cross-section of the community.’ ”

Although the defendant claims in brief that the procedure followed by the jury commissioner in the instant case resulted in an inadequate representation of eighteen to twenty-one year olds and minorities, defendant failed to make the requisite showing of a systematic exclusion. Therefore, we find no merit in this assignment.

Assignments of Error Nos. 7 and 8

Defendant contends the trial judge erred in sustaining the State’s challenges for cause of eight prospective jurors due to their sentiments regarding the death penalty.

A review of the voir dire examination reveals that all eight prospective jurors stated in advance of trial that they could not consider returning a verdict of death. Therefore, the jurors were properly excused in compliance with C.Cr.P. 798(2) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See State v. Drew, La. 360 So.2d 500 (1978); State v. Mitchell, La., 356 So.2d 974 (1978); State v. Sheppard, La., 350 So.2d 615 (1977); State v. Ross, La., 343 So.2d 722 (1977).

Defendant argues that Witherspoon has no application under our current first degree murder statute, R.S. 14:30, as amended, and the sentencing provisions of C.Cr.P. 905 et seq., wherein the death penalty is no longer mandatory upon conviction. He reasons that a juror’s conviction against the imposition of the death penalty under any circumstances comes within the definition of “any other relevant mitigating circumstance,” listed under C.Cr.P. 905.5 as a mitigating circumstance that the jury must consider in determining whether or not to recommend the death penalty or life imprisonment. This argument is unmeritorious. The “other relevant mitigating circumstances” are those related to the offender, and not to the moral convictions and sentiments of the juror, as defendant contends. As stated in C.Cr.P. 905.2, “the sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender.”

We find no merit in these assignments.

Assignments of Error Nos. 11 and 15

Defendant urges by these assignments that the trial judge erred in allowing in evidence two black and white photographs of the body of the victim, and in permitting the jury to keep them in its possession during the two and one-half hours of deliberation. He alleges that the photographs were prejudicial, gruesome and lacking in probative value. The two photographs depict the victim, lying on his back on the blood spattered grass, bleeding from a knife wound.

It is well settled that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs their potential prejudicial effect on the jury. State v. Matthews, La., 354 So.2d 552, 557 (1978), and cases cited therein. Further, the trial judge’s ruling on the use of such photographs will not be disturbed unless the inflammatory effect clearly outweighs the probative value. State v. Sawyer, La., 350 So.2d 611 (1977).

While the photographs herein are not pleasant pictures, they are not gruesome. Moreover, the photographs clearly were admissible to corroborate expert testimony as to the manner in which the death occurred and the cause of death. State v. Beach, La., 320 So.2d 142 (1975).

In sum, we conclude that the probative value was not outweighed by the potential prejudicial effect the photographs had on the jury and the trial judge did not err in admitting them.

Assignment of Error No. 14

Defendant contends that the trial judge committed reversible error by making an impermissible comment on the evi-denee during the court’s charge to the jury, in violation of C.Cr.P. 772 and 806.

While charging the jury on the possible verdicts that could be returned in the case, the judge explained the various definitions of manslaughter, and concluded with:

“The third situation we are presently discussing is when a homicide occurs when the offender is resisting lawful arrest, this situation is not concerned in the present case.” (Emphasis added).

Defendant argues that since a private citizen can effectuate a lawful arrest if a felony is being perpetrated in his presence, Mr. Pillittere could have been engaged in a citizen’s arrest of the defendant when the homicide occurred.

Defendant’s objection was that the judge impermissibly commented on the evidence in violation of C.Cr.P. 772 and 806. Under different circumstances it might have been, but here it was only a parenthetical remark concerning the judge’s (legal) reason for not giving a portion of the definition of the crime of manslaughter. “The court shall charge the jury: (1) As to the law applicable to the case.” C.Cr.P. 802. It is important to note that defendant did not request the instruction concerning manslaughter while resisting arrest, and the record before us does not disclose that it was ever an issue or contention before the jury. Considered in the context of the case, the judge’s comment was not a comment on the evidence.

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

      . It shou'd also be noted that C.Cr.P. 716(C), as amended, which would have required the court, on defendant’s motion, to order the district attorney to inform defendant of the substance of the oral statement, did not go into effect until the day after the jury returned its guilty verdict.

      . C.Cr.P. 772 provides:
      “The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”
      C.Cr.P. 306 provides:
      “The court shall not charge the jury concerning the facts of the case and shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

      . In defendant’s Assignment of Error No. 17 he requests the court to examine the record for errors patent on its face. After having reviewed the record, we find no such patent errors.