author: DENNIS, Justice. MARCUS, Justice CALOGERO, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Phill BATISTE and Edward Lee.
    No. 60711.
    Supreme Court of Louisiana.
    March 6, 1978.
    On Rehearing Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.
    William W. Miles, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Phill Batiste.
    Barry P. Viosca, Orleans Indigent Defender Program, New Orleans, for Edward Lee.
    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.
   DENNIS, Justice.

Following a trial by jury the defendants, charged with distribution of heroin, La. R.S. 40:966, were found guilty of attempted distribution of heroin and sentenced to serve twenty years at hard labor. On appeal defendants rely upon four assignments of error which comprise two arguments for reversal of their convictions and sentences. For the reasons given below we affirm the conviction and sentence of Edward Lee and reverse the conviction and sentence of Phill Batiste.

The key witness in the State’s case against the defendants was Earl Brown. As part of a plea bargaining arrangement negotiated in federal court following his indictment on various drug charges, Brown agreed to become a “testifying informant” in federal and state drug prosecutions. Pursuant to this plea bargaining agreement, Brown was given $200 by police officers on December 18, 1975 in order to purchase heroin from the defendants. After the alleged heroin transaction transpired, to which there were no witnesses besides the participants, Brown turned over twenty-three packets of heroin to the police. The defendants were arrested shortly thereafter and charged with distribution of heroin on the basis of the transaction with Earl Brown.

ASSIGNMENTS OF ERROR NOS. 1 and 2

At trial the first witness to testify on behalf of the prosecution was A1 Winters, an assistant United States attorney, who was involved in Earl Brown’s plea bargaining arrangement in federal court. Winters testified that all counts except one were to be dismissed in exchange for Brown’s testifying “completely and truthfully” in approximately thirty cases in state and federal courts. At the time of the present trial Brown had testified in two cases in federal court and fifteen cases in state court.

One of the basic rules of evidence is that testimony which establishes the credibility of a witness is inadmissible until the credibility of that witness has been attacked. 4 J. Wigmore, Evidence, § 1104 (Chadbourn rev. 1972); C. McCormick, Evidence, § 49 (Cleary ed. 1972). Louisiana codifies this principle in La. R.S. 15:484, which provides:

“Before a witness has been sworn he can be neither corroborated nor impeached, nor is testimony to establish the credibility of a witness admissible until that credibility has been attacked.”

Various purposes are served by this rule. Wigmore suggests that witnesses are assumed to be of normal moral character for veracity. Therefore, as a corollary to this assumption, there is no reason why time should be consumed in proving that which is assumed to exist. It is only when credibility has been attacked that it becomes permissible to introduce evidence establishing credibility. 4 J. Wigmore, supra. See also, Homan v. United States, 279 F.2d 767 (8th Cir. 1960); cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960); Comments, Federal Rule of Evidence 608(a)(2); cf. State v. Cato, 116 La. 195, 40 So. 633 (1906). In addition to insuring judicial efficiency, courts have recognized that an attempt to establish the credibility of a witness before that credibility has been assailed carries the inherent prejudicial danger of bolstering, in advance, a witness’ testimony and increasing its probative strength with the jury. See, e. g., Perkins v. United States, 315 F.2d 120 (9th Cir. 1963); Homan v. United States, supra; Annotation, 15 A.L.R. 1065; 33 A.L.R. 1220.

Although prejudicial error was committed through Winters’ bolstering the credibility of Earl Brown before that credibility was assailed, defendants failed to object timely and to make known to the court the correct grounds therefor. Defendants allowed extensive testimony by Winters before finally objecting on the ground that it constituted opinion testimony. The tardiness of the objection and the failure to point out the true reason for the inadmissibility of the evidence thus obscured it from the court’s view. An irregularity or error cannot be availed of after verdict unless it was properly objected to at the time of its - occurrence. La.C.Cr.P. art. 841.

ASSIGNMENTS OF ERROR N0S. 3 and 4

These assignments present the issue of whether the trial court erred in allowing ■ Earl Brown to give testimony concerning, defendant Batiste’s past involvement with-narcotics. The State contends that this testimony was admissible to rebut the defense of entrapment.

During cross-examination of Brown, counsel for Batiste posed the following questions:

“Q. I believe you previously testified you asked Phill Batiste to buy a bundle of heroin for you; is that correct? Ten minutes ago; is that correct?
“A. I asked could he go get me a bundle, sure.
“Q. Phill Batiste didn’t walk to you and say, ‘Maybe I can get you a bundle of heroin.’ You turned to him and said, ‘Phill Batiste, can you get me a bundle of heroin?’
“A. I asked could he score me a bundle of heroin. And he said, ‘Yes.’
“Q. In other words, you brought it up?
“A. That’s right.
* * * * * *
“Q. You asked Phill.Batiste to get you the narcotics that day; correct?
“A. I asked him could he score me a bundle. He said, ‘Yes,’ he could.”

On re-direct examination, over objection by defense counsel, the State elicited testimony from Brown that he and Batiste had spent time in jail together. Brown further testified that two months before the transaction for which the defendants were on trial, Batiste agreed to sell him some heroin and that Batiste made arrangements for a sale. However, this sale apparently was never consummated. The record does not indicate that the previous episodes of criminal activity and incarceration were connected with the offense on trial in the instant case.

Under the generally accepted view an entrapment is perpetrated when a law enforcement official or a person acting in cooperation with such an official, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not then otherwise disposed to do so. ALI Model Penal Code, Tentative Draft, § 2.10; W. LaFave and A. Scott, Criminal Law, § 48 (1972). This view, which has been labeled the “subjective” or “origin of intent” test for entrapment, reflects the views espoused in. majority opinions of the United States Supreme Court, Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). The lower federal courts are in accord. See, e. g., United States v. Esquer-Gamez, 550 F.2d 1231 (9th Cir. 1977); United States v. Garcia, 546 F.2d 613 (5th Cir. 1977); United States v. Russo, 540 F.2d 1152 (1st Cir. 1976); United States v. Jackson, 539 F.2d 1087 (6th Cir. 1976). It is so called because it focuses attention on the defendant’s predisposition to commit the offense as well as the actions of law enforcement officials. The inquiry under this test goes beyond the fact that criminal conduct was committed at the instance of law enforcement officials. Once government instigation is shown, the inquiry focuses upon the predisposition of the defendant. Under this test, the ultimate question is whether the inducement by the officers or the defendant’s own predisposition caused the criminal conduct in question. See, 2 R. Cipes, Criminal Defense Techniques, §§ 30.-01 et seq. (1976). States are not presently required by the federal constitution to recognize entrapment as a defense, but almost all have done so with a majority applying the “subjective” approach.

The United States Supreme Court has adhered to the “subjective” approach over the years despite strong dissents and concurrences which advocate that the focal point of the entrapment defense should be whether the government conduct in question can be countenanced by the court. See, Sorrells v. United States, supra (concurring opinion by Justice Roberts, joined by Justices Brandéis and Stone); Sherman v. United States, supra (concurring opinion by Justice Frankfurter, joined by Justices Douglas, Harlan and Brennan); United States v. Russell, supra (dissenting opinion by Justice Douglas with whom Justice Brennan concurred; dissenting opinion by Justice Stewart, joined by Justices Brennan and Marshall); Hampton v. United States, supra (dissenting opinion by Justice Brennan, joined by Justices Stewart and Marshall). Many commentators agree with the minority or “objective” view. It holds that, since the rationale of the entrapment defense is to deter improper police practices, the character or disposition of the defendant is irrelevant. See Comment, Entrapment: A Critical Discussion, 37 Mo.L.Rev. 633 (1972); Comment, The Defense of Entrapment: Next Move — Due Process?, 1971 Utah L.Rev. 266 (1971); Comment, The Viability of the Entrapment Defense in the Constitutional Context, 59 Iowa L.Rev. 655 (1974). The ALI Model Penal Code, POD § 2.13 and some state courts have adopted this minority view. See, e. g., State v. Mullen, 216 N.W.2d 375 (Iowa 1974); Grossman v. State, 457 P.2d 226 (Alaska 1969).

This Court has recognized the defense of entrapment and has focused its attention on the predisposition of the defendant to commit the crime at issue as well as the conduct of the police. See, e. g., State v. Harrington, 332 So.2d 764 (La.1976); State v. Kelly, 263 La. 545, 268 So.2d 650 (1972); State v. Turner, 241 La. 94, 127 So.2d 512 (1961).

If a defendant chooses to pursue the defense of entrapment evidence of other criminal activity on his part may become relevant in determining whether the defendant had the predisposition to commit the present crime. In Sorrells v. United States, supra, the Court recognized the relevancy of such evidence:

“Objections to the defense of entrapment are also urged upon practical grounds. But considerations of mere convenience must yield to the essential demands of justice. The argument is pressed that if the defense is available it will lead to the introduction of issues of a collateral character relating to the activities of the officials of the government and to the conduct and purposes of the defendant previous to the alleged offense. For the defense of entrapment is not simply that the particular act was committed at the instance of government officials. That is often the case where the proper action of these officials leads to the revelation of criminal enterprises. Grimm v. United States, 156 U.S. 604, 15 S.Ct. 470, 39 L.Ed. 550, supra. The predisposition and criminal design of the defendant are relevant. But the issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials. If that is the fact, common justice requires that the accused be permitted to prove it. The government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct• and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense.” (Emphasis added.) 287 U.S. 435,451-2, 53 S.Ct. 210, 216, 77 L.Ed. 413, 422 (1932).

The issue of introducing evidence of other criminal activity on the part of the defendant in order to rebut a defense of entrapment apparently has not been decided by this Court. A survey of the jurisprudence from other states and the federal courts indicates an adherence to the views espoused in Sorrells, supra. An overwhelming majority of courts are of the view that such evidence is admissible because of its relevance to the issue of the defendant’s predisposition to commit the crime. See, e. g., United States v. McCord, 509 F.2d 891 (7th Cir. 1975); United States v. Hawke, 505 F.2d 817 (10th Cir. 1974); cases cited in Wharton’s Criminal Evidence, § 258 n. 11; Annotation, Admissibility of Evidence of Other Offenses in Rebuttal of Defense of Entrapment, 61 A.L.R.3d 293.

However, in recognition of the danger that the trier of fact may place undue emphasis on the evidence of other criminal activity and perhaps judge the defendant guilty on the basis of this other evidence, courts have wisely determined that the introduction of such evidence must be controlled in a reasonable manner. See, United States v. Johnston, 426 F.2d 112 (7th Cir. 1970); Hansford v. United States, 112 U.S. App.D.C. 359, 303 F.2d 219 (1962). Thus, as a threshold requirement, the evidence is not admissible unless it has been demonstrated clearly that the entrapment defense will be invoked. Anticipation by the State that such a defense may be raised is not a sufficient basis for admission of such evidence. See, e. g., United States v. McCord, 509 F.2d 891 (7th Cir. 1975); United States v. Sherman, 240 F.2d 949 (2d Cir. 1957), revd. other grounds, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Walls v. State, 326 So.2d 322 (Miss.1976); People v. Mann, 31 N.Y.2d 253, 336 N.Y.S.2d 633, 288 N.E.2d 595 (1972). ALI Model Penal Code, Tentative Draft, § 2.10.

Assuming that the defendant chooses to raise an entrapment defense, other crimes evidence utilized by the State must be of a similar character of the offense for which the defendant is on trial. See, e. g., State v. Matheson, 363 A.2d 716 (Me.1976). Another factor which the trial court should consider in determining whether the evidence is to be admissible is the remoteness in time of the offenses. See, White v. United States, 390 F.2d 405 (6th Cir. 1968); Hansford v. United States, 112 U.S.App. D.C. 359, 303 F.2d 219 (1962). Moreover, the trial judge must consider whether, under the circumstances of the case, the evidence, even though relevant, should be excluded because its prejudicial effect outweighs the probative value on the issue of predisposition.

Applying these principles to the instant case we conclude that the trial court erred in allowing introduction of evidence pertaining to Batiste’s past criminal activity during the State’s case in chief. It was not “clear that the defense of entrapment [would] be invoked.” ALI Model Penal Code, Tentative Draft, § 2.10. In his opening statement the defendant’s counsel challenged the credibility of the State’s informant-agent, Earl Brown, but he did not contend that his client had been unlawfully entrapped. Instead of denouncing the police conduct in his opening statement, the attorney made it clear that he did not intend to criticize law enforcement officials. Although testimony was educed from Earl Brown on cross-examination that he initiated the transaction by asking Batiste and Lee if they could get him a bundle of heroin, the same testimony had been elicited from him on direct examination by the prosecuting attorney. No follow-up questions were asked in an attempt to show reluctance on the part of Batiste to indicate trickery, persecution or overreaching by Brown. The great majority of the cross-examination was directed to other aspects of Brown’s direct testimony. Under these circumstances it was far from being clear that the defendant intended to invoke the defense of entrapment. In contrast, see, People v. Mann, 31 N.Y.2d 253, 336 N.Y.S.2d 633, 288 N.E.2d 595, 61 ALR3d 286 (1972). Therefore, the trial court erred when it permitted the evidence relating to the defendant Batiste’s criminal predisposition to be introduced in the State’s direct case.

We are unable to detect that defendant Lee suffered any prejudice from the impermissible testimony concerning the criminal predisposition of Batiste.

Accordingly, for the reasons assigned the conviction and sentence of defendant Lee are affirmed and Batiste’s conviction and sentence are reversed and remanded.

SANDERS, C. J., and SUMMERS, J., concur in affirming the conviction of Lee but dissent from the reversal of the conviction of Batiste.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of Lee’s conviction and sentence. I dissent from the reversal of Batiste’s conviction and sentence. I consider that defendant Batiste sufficiently invoked the defense of entrapment during his cross-examination of Brown to permit the state on redirect to show Batiste’s predisposition to commit the crime. In any event, the alleged error was harmless. La.Code Crim.P. art. 921.

ON REHEARING

CALOGERO, Justice.

We granted rehearing to reconsider our determination that the trial court erred in allowing the state’s key witness, Earl Brown, to testify concerning an unrelated instance prior to the crime charged when defendant had agreed to sell him heroin and made arrangements for the sale.

The majority opinion on our original hearing correctly recognized the general rule that, when entrapment is a defense, the prosecution may introduce evidence of other criminal activity to show the defendant’s predisposition to commit the crime. That opinion went on to conclude that at the point in the trial when the judge permitted exploration of defendant’s prior criminal activity (state re-direct examination of the key state witness on the state’s case in chief) it had not yet been made sufficiently clear that the defendant intended to invoke the defense of entrapment. It is this latter narrow determination as to which we conclude differently upon this rehearing.

The specific ruling about which defendant complained was that which permitted Brown to testify that about two months before the sale which was the subject of this prosecution he and Batiste had made arrangements (apparently not thereafter consummated) for a Batiste to Brown sale; that Batiste told Brown that he would sell him heroin.

This testimony, given by the state’s key witness in redirect examination during presentation of the state’s case in chief immediately followed defense cross-examination of the same witness during which the defense stressed the point that it was not Batiste who had initiated the charged sale to Brown, but just the reverse:

“Q. I believe you previously ■ testified you asked Phill Batiste to buy a bundle of heroin for you; is that correct? Ten minutes ago; is that correct?
A. I asked could he go get me a bundle, sure.
Q. Phill Batiste didn’t walk to you and say, Maybe I can get you a bundle of heroin. You turned to him and said, Phill Batiste, can you get me a bundle of heroin?
A. I asked could he score me a bundle of heroin. And he said, Yes.
Q. In other words, you brought it up?
A. That’s right.
* * * * * *
Q. I want you to be very emphatic about one thing, to the point you asked Phill Batiste to go purchase the narcotics for you on that day; is that correct?
BY THE COURT:
We have been through that. That’s the last question in that area. What’s your answer?
CROSS EXAMINATION BY MR. MILES:
Q. You asked Phill Batiste to get you the narcotics that day; correct?
A. I asked him could he score me a bundle. He said, Yes, he could.
BY MR. MILES
I don’t believe I have any further questions.”

The defense had earlier established that Brown had also tried to arrange a heroin transaction with two other persons by prompting them to buy narcotics for him just hours before the contact with Batiste which resulted in the charged distribution. Brown was questioned on cross-examination as follows:

“Q. And you talked to Robert Harris and Dorothy Diggs you tried to get them to buy dope for you?
A. They were supposed to get me some, right.
* * * * * *
Q. Why didn’t you go ahead with the transaction with Dorothy Diggs and Harris?
* * * * * *
A. Because they had other business to take care of at the time. They wouldn’t be available until about four o’clock that afternoon.”

Furthermore the repeated admissions by Brown during cross-examination that he initiated arrangements for heroin transactions were not too far removed in time from the defense opening statement, wherein Batiste’s counsel set the stage for the entrapment defense when he directed the jury’s attention to Brown’s description of how he conducted his “under cover” activity.

In view of what had transpired at trial before the judge was called upon to rule on the admissibility of the prior criminal activity, and in light of the fact that entrapment is an evidentiary defense under a plea of not guilty (there is no authority for a special plea raising the issue, or defense), we now conclude that the trial judge did not err in permitting testimony concerning the prior criminal conduct, for it indeed was sufficiently clear to the trial judge that entrapment as a defense was being, and would thereafter continue to be, urged and relied upon as a defense.

Because we find that defense counsel clearly exhibited an intention to advance a defense of entrapment before the state questioned the witness Brown about Batiste’s involvement in an earlier narcotics arrangement, we decide that the trial court did not err in allowing that evidence. It was permissible. And it was pertinent to whether the sale in question was caused by defendant’s own predisposition, or by inducement by the undercover agent.

In all respects other than the vital conclusion discussed hereinabove, we subscribe to the principles enunciated in our opinion on original hearing. In particular we endorse the earlier reliance on, and application of, the principles in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Applying all the restrictions which we determined on original hearing are to be attendant upon application of the Sorrells rule of admissibility we are of the view that the trial judge’s ruling was correct.

Decree

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

AFFIRMED.

ON REHEARING

DIXON, Justice

(dissenting).

I respectfully dissent.

On original hearing this court reversed the conviction of Phill Batiste, holding that before the State may introduce evidence of other criminal activities to rebut a defense of entrapment, that defense must first be clearly raised and at issue. We found that Batiste had not clearly raised that defense and reversible error was committed when the evidence of prior criminal conduct was admitted. The State applied for a rehearing, arguing that this court erred in determining that the defense had not been raised in view of the fact that entrapment was a defense at an earlier trial which ended in a mistrial. We granted this rehearing to consider the effect of the earlier trial on our original determination.

In defendant’s first trial the jury was unable to reach a verdict. A mistrial was ordered pursuant to C.Cr.P. 775(2) and a new trial was set. Just as in cases in which a motion for new trial is granted or when a conviction is overturned on appeal, the defendant was entitled to a new trial conducted as if there had been no previous trial. This principle was well stated in State v. Hornsby, 8 Rob. 583, 587 (1845):

“. . What is a new trial?
‘It is a re-hearing of the case before another jury; but with as little prejudice to either party as if it had never been heard before. No advantage is to be taken of the former verdict on the one side, or the rule of court, for awarding such second trial on the other.’ Blackstone, 3d vol. p. 391.
A new trial results then, in placing the ease exactly in the position it occupied before there had been a trial, in relation to the objects for which it had been awarded, and, with this qualification, all proceedings are set aside, and the party stands as if he had never been tried; and when this court, on the former appeal, ordered, that ‘the judgment of the criminal court be set aside, cancelled and reversed,’ the defendant stood again before that court as he stood before the trial— unprejudiced and in the full possession of all his rights, just as they existed when he first answered to the indictment.

This principle has been repeated in later cases (see, e. g. State v. Lee, 346 So.2d 682 (La.1977); State v. Reed, 324 So.2d 373 (La.1975)) and remains the governing rule today, codified in C.Cr.P. 857:

“The effect of granting a new trial is to set aside the verdict or judgment and to permit retrial of the case with as little prejudice to either party as if it had never been tried.”
“This article continues the sound rule of Art. 515 of the 1928 Code of Criminal Procedure, that the slate is wiped clean when a new trial is granted. . . .” Official Revision Comment (a) to art. 857.

The granting of the mistrial afforded the defendant the right to a new trial unencumbered by what had occurred in the previous trial. It is a natural corollary that the defendant is likewise not bound to advance the same defenses or employ the same trial tactics at the second trial. Changes in circumstances, such as the availability of state or defense witnesses, might inspire significant changes in trial strategy and tactics in the second trial. The fact that the defendant raised the issue of entrapment does not demonstrate clearly that the entrapment defense will be invoked at the second trial. As stated in our original opinion, “Anticipation by the State that such a defense may be raised is not a sufficient basis for admission of such evidence.”

Due to its inherently prejudicial’ nature, ■ the use of evidence of other criminal conduct must be severely restricted. It is largely for this reason that we should reaffirm our holding on original hearing that the defendant must clearly raise the issue of entrapment before the State may rebut that defense with evidence of other criminal acts which demonstrate the defendant’s predisposition to commit the crime for which he is being tried. In the present case the defendant did not clearly raise the defense at the second trial; the fact that the defense was raised at a prior trial is not a clear demonstration that it will be raised again. The trial court therefore committed reversible error by allowing, over defense objection, the introduction of evidence of other criminal conduct before it was clear that the defendant intended to rely on a defense of entrapment.

We should reinstate our former judgment.

DIXON, J., dissents with reasons.

DENNIS, J., dissents for reasons assigned in original opinion and by DIXON, J.

TATE, J., dissents for reasons assigned by DIXON and DENNIS, JJ.

      . In the Proposed Official Draft of the Model Penal Code the ALI departs from the generally accepted “subjective” view of entrapment and apparently adopts the “objective” view. See ALI Model Penal Code, POD § 2.13. For definitional purposes and comments pertaining to the generally accepted “subjective” view of entrapment, we have used the Tentative Draft.

      . See, United States v. Russell, supra; State v. Nelsen, 228 N.W.2d 143 (S.D.1975); 2 R. Cipes, Criminal Defense Techniques, § 30.04 (1976).

      . See, Annotation, 61 A.L.R.3d 293; Comment, Entrapment: A Critical Discussion, 37 Mo.L. Rev. 633 (1972).

      . In State v. Matheson, supra, the Court pointed out other available methods of showing a defendant’s predisposition to commit the offense in drug cases: the absence of nagging persistence on the part of the government agent; knowledge of the place where drugs may be obtained; an acquaintance with a person having a drug supply.

      . “The long established rule forbids the prosecution, unless and until the accused gives evidence of his good character, from initially introducing evidence of the bad character of the accused, including evidence of his other criminal acts. Accordingly, the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character. McCormick on Evidence, § 190 (Cleary ed. 1972); Wigmore on Evidence, §§ 55, 57 (3d Ed. 1940).” State v. Sutfield and Phillips, 354 So.2d 1334 (La.1978), No. 60,520.

      . While noteworthy we find it unnecessary to rely upon, the fact that the same defendant, same defense lawyer and same trial judge had participated in an earlier trial of the same offense — resulting in a mistrial — in which entrapment had been urged as a defense.

      . An application for rehearing by codefendant Lee was denied.


source: Caselaw Access Project

author: CALOGERO, Justice. PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Otis QUINCY.
    No. 61513.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Nov. 9, 1978.

      Sargent Pitcher, Jr., Pitcher & French, Ltd., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel M. Ca-shio, Dist. Atty., Charles H. Dameron, First Asst. Dist. Atty., Port Allen, for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Otis Quincy was indicted December 17, 1976 for the crime of second degree murder. After a trial by jury, defendant was found guilty as charged and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for forty years. On this appeal of his conviction and sentence, defendant relies on seven assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in allowing the state’s witness, Charles Smith, to testify concerning incul-patory statements made by defendant to Smith despite the state’s failure to comply with La.Code Crim.Pro. art. 768.

Article 768 provides:

If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

Attempting to comply with article 768, the state on the morning of the trial gave defendant the following notice:

You are hereby notified that, on the trial of the above numbered and entitled case, the State, through the District Attorney, intends to introduce into evidence the following confession(s) or inculpatory statement(s) made by defendant:
Various oral admissions and incriminating statements made by the accused in several conversations with one Charles (Charlie) Smith
This notice is given prior to the opening statement in accordance with Article 768 of the Louisiana Code of Criminal Procedure.

At trial defendant objected that the “768” notice was defective. The ground for the objection was that the notice was “too general and indefinite.” Defendant argued that full compliance with article 768 required that defendant know the substance of the statements. In response to this objection the court ruled that La.Code Crim. Pro. art. 768 does not require the state to advise the defendant of the content of the statements intended to be used. Preserving his objections for the record, defendant objected to the “vagueness and generality” of the notice.

In brief defendant contends that the basis for his objection was that the “768” notice failed to specify the date and occasion on which the statements were made to Charlie Smith. Defendant argues that under State v. Sneed, 316 So.2d 372 (La.1975) the state failed to give notice sufficiently specific as to date and occasion so as to afford him a sufficient opportunity to meet the issue.

The question of whether the “768” notice is defective under the standards set in Sneed need not be reached in this case.

Louisiana Code of Criminal Procedure Article 841 provides that an irregularity or error can not be availed of after verdict unless the party makes known his Objection and the grounds for it. The basis of the objection must be stated so that the trial judge has an opportunity to rule on it and prevent or cure an error. State v. Lewis, 353 So.2d 703 (La.1977).

Defendant’s objection at trial to the “768” notice was based on the “vagueness and generality” of the notice. Defendant’s argument was La.Code Crim.Pro. art. 768 entitled him to the substance of the statement. The trial court properly ruled that the defendant is not entitled to the content of the statements in the “768” notice. See State v. Alexander, 351 So.2d 505 (La.1977). The objection based on the state’s failure to give the date and occasion of the statement was raised for the first time on appeal. It is well-settled that a new basis for an objection may not be raised for the first time on appeal. State v. Holstead, 354 So.2d 493 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976). There being no merit to the defense objection for the reasons expressed in support thereof at trial, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in permitting the District Attorney to lead a witness on direct examination. The following question directed to Charlie Smith gave rise to the objection:

Now, at the time that I came to New Orleans and you spoke to me about this— in other words, particularly with reference to what Otis had told you — did I make you any promises, did I say anything to you to induce you to tell me these things?
MR. PITCHER: I object, Judge — it’s leading.
MR. CASHIO: Well, if Your Honor please, of course, this question of a deal between the accused and the District Attorney is certainly going to come up and I think it’s relevant — I don’t think that the question is leading.

Louisiana Revised Statute 15:277 proscribes the use of leading questions to one’s own witness unless he is unwilling or hostile. The statute defines a leading question as one which suggests to the witness the answer he is to deliver. The question at issue does not seem to suggest an answer and is therefore not leading. Even if it is a leading question, the defendant has not demonstrated any prejudice. While counsel should not be allowed to mold the testimony of a witness, a verdict should be disturbed only when there is a clear abuse calculated to prejudice the right of the accused. State v. Sheppard, 350 So.2d 615 (La.1977). This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends in this assignment that the trial judge commented on the evidence in contravention of La.Code Crim. Pro. art. 772. Louisiana Code of Criminal Procedure Article 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.

The assignment arose in the following context. Defense counsel questioned the state’s witness about a pardon he received from his conviction for manslaughter. In his questions, counsel referred to the fact that he at one time was a district attorney and that he knew how pardons “work.” In ruling that counsel should refrain from such remarks, the trial judge stated, “There was definitely several times when he [defense counsel] testified himself which the Court asks that he refrain from . . ..” Defendant moved for a mistrial on the grounds that the trial judge had commented on the evidence. Overruling the objection, the judge stated that the jury should disregard anything said concerning the evidence in this case.

The trial judge’s comment is not within the prohibition of La.Code Crim.Pro. art. 772. He did not comment on, or recapitulate evidence, nor repeat the testimony of a witness. Nor did he give an opinion of what had been proved, not proved, or refuted. Even if this was a comment on the evidence, it was made while the judge was giving reasons for his ruling on an objection. Provided they are not unfair or prejudicial, a trial judge’s remarks made while giving reasons for a ruling are not objectionable as comments on the case. State v. Taylor, 347 So.2d 172 (La.1977). Defendant has shown no unfairness or prejudice in these remarks. Therefore this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment defendant contends that he was denied due process and a fair trial because the trial court failed to hold a witness in contempt for refusing to comply with an order of the court and failed to admonish a witness to tell the truth.

While cross-examining Charles Smith, defense counsel requested that Smith read a transcript of a conversation between Smith and a private investigator. Smith asked that someone else read the transcript because he did not read very well. When the trial court ordered Smith to read the transcript, he replied that he could not read at all. In addition when defense counsel questioned Smith about the identity of a person who called Smith the day after the murder, Smith gave vague and indefinite answers. When the trial judge ordered him to answer the question, Smith replied that he did not know the person’s identity.

The judge’s refusal to hold the witness in contempt under these circumstances is not reversible error. However suspect the witness’s answers might have been, they did terminate the basis for further questioning. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the trial judge erred in failing to charge the jury that second degree murder requires specific intent to kill and that if the jurors had a reasonable doubt as to any or all grades of the offense, they must acquit the defendant. The trial transcript, however, indicated that the trial judge did inform the jury that second degree murder requires specific intent and that the state must prove beyond a reasonable doubt the crime charged in the indictment and the included crimes. Because the transcript indicates that the trial judge committed no error, this assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 6 AND 7

Defendant contends that the trial court erred in denying his motion for a new trial. In that motion defendant argued that the trial judge erred in failing to admonish the jurors not to discuss the case except among themselves and in allowing them to separate in a public restaurant after the case was submitted for deliberation.

Louisiana Code of Criminal Procedure Article 791 provides:

A jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.
In capital eases, after each juror sworn he shall be sequestered. is
In noncapital cases, the jury shall be sequestered after the court’s charge, and may be sequestered at any time upon order of the court.

At the hearing on a motion for a new trial, the deputy in charge of the jury testified that the members of the jury dined in a small room just off the main dining area of the restaurant. Two jurors who could not be seated at the main table were six to eight feet away at a second table. Both the deputy and defense counsel, who was also in the restaurant at the time in question, testified that no one other than the jurors was in the small room and that no one communicated with them.

Defendant relies on State v. Martin, 329 So.2d 688 (La.1976) to argue that whenever the jurors are separated, a presumption of misconduct arises. In Martin, a capital case, the jurors were allowed to go home after they were sworn and were separated for twenty-one hours. The presumption which arose in Martin is not warranted in this case. There was no real separation of the jury. Two jurors were separated by only six to eight feet and none of the jurors were out of the deputy’s sight. There is no evidence that third persons communicated with the jurors or of any other form of misconduct. This assignment lacks merit.

Decree

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

AFFIRMED

DIXON, J., concurs.

ON DENIAL OF REHEARING

PER CURIAM.

Defendant urges in his application for rehearing that we erred in not considering the merits of his contention under Assignment of Error No. 1 that the trial judge erred in allowing the state’s witness, Charles Smith, to testify concerning incul-patory statements made by defendant to him despite the state’s failure to comply with La.Code Crim.P. art. 768. Pretermit-ting this question, we have reviewed the contention raised under this assigned error on the merits and have determined that there is no substance to the contention. We consider that the state substantially complied with La.Code Crim.P. art. 768. Accordingly, the rehearing is denied.

TATE, J., is of the opinion that rehearing should be granted.


author:
DENNIS, Justice.
      TATE, J.,

text:
    In re GRAND JURY SUBPOENAS Issued to Robert MacMahon and Charles Speer.
    No. 63023.
    Supreme Court of Louisiana.
    Sept. 28, 1978.
    Rehearing Denied Nov. 9, 1978.

      Gibson Tucker, Jr., Russell J. Schonekas, Tucker & Schonekas, New Orleans, for Robert MacMahon and Charles Speer, relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Ralph Capitelli, Fredericka Homberg, Asst. Dist. Attys., for State of La., respondent.
   DENNIS, Justice.

In this review we are called upon to decide whether a witness ordered by the district court to appear before the grand jury and to testify is discharged from the court’s command at the end of the day upon which he is ordered to appear or whether he must return for further questioning at a time expressly directed by the foreman of the grand jury.

Relators, residents of the State of California, were served with subpoenas ad testi-ficandum commanding them to appear before the Orleans Parish Grand Jury on August 22, 1978. The subpoenas were served upon the relators on August 16,1978 during their appearance before the Commissioner of Insurance in Baton Rouge in connection with his inquiry into the affairs of the Roger Williams Insurance Company. Relator, Robert MacMahon, is a vice-president of the company, and relator, Charles Speer, is a member of the company’s accounting firm. The Orleans Parish Grand Jury also intended to investigate the activities of Roger Williams Insurance Company as part of its inquiry into offenses triable by the Criminal District Court of Orleans Parish.

Several procedural skirmishes occurred before the court order which is the primary subject of this litigation. On August 22, 1978 the witnesses moved to quash the subpoenas on the grounds of improper service of process. The district court denied the motion but stayed its command to appear before the grand jury until August 23,1978 to allow the witnesses to apply to this Court for writs. Applications were not made but the district court deferred the relators’ grand jury appearance until August 30, 1978. On this date the witnesses appeared in court and informed the judge that they would assert their privileges against compulsory self-incrimination and would refuse to testify before the grand jury. The State filed a request for an order pursuant to Louisiana Code of Criminal Procedure Article 439.1 compelling relators to give testimony. The relators objected to the form of the request for the order. The district court took the objection under advisement and continued the hearing on this matter until September 1, 1978.

Relators appeared before the court on September 1, 1978 and withdrew their objection to the request for an order compelling their testimony before the grand jury. The court read and explained to the witnesses the grant of immunity provided by La.C.Cr.P. art. 439.1 in connection with compelled testimony and ordered them “to appear before the Grand Jury to testify.”

Immediately following the court appearance relators presented themselves to the grand jury. Relator MacMahon was called as a witness and testified before the grand jury until approximately 5:15 p.m. on Friday, September 1, 1978. When the grand jury recessed at this time for the Labor Day weekend the foreman instructed MacMahon and Speer to return at 9:00 a.m. on Tuesday, September 5, 1978.

On September 5, 1978 relators did not return or appear before the grand jury. On motion of the district attorney the district court issued a rule to show cause why rela-tors should not be held in contempt of court, issued an alias capias and fixed bail in the amount of $50,000 as to each relator. We granted relators’ applications for supervisory writs in order to determine whether relators’ failure to appear before the grand jury on September 5, 1978 was a failure to comply with an order of the court.

Relators argue in this Court that they fully complied with their subpoenas by appearing, testifying and standing ready to testify before the grand jury on September 1, 1978. They point out that in criminal proceedings Louisiana Code of Criminal Procedure Article 733 requires only that the subpoena specify the “time and place” for the attendance of a witness. Unlike the subpoena form required in civil proceedings by La.C.C.P. art. 1351, the law does not provide that subpoenas in criminal proceedings shall command a witness to attend “until discharged.” Thus, the inference is appropriate, relators argue, that the legislature intended for the command of attendance by a subpoena in a criminal proceeding to be limited strictly to the time specified within the particular subpoena. Since neither the written subpoenas nor the court’s oral order expressly stated that the subpoenas would continue beyond September 1, 1978, relators argue that the subpoenas expired at the end of this day.

If relators’ premise is correct, they would have been under no legal obligation to return for further appearances before the grand jury on September 5, 1978. Although the court shall issue a subpoena for a witness to appear before the grand jury upon request of the grand jury or the district attorney, La.C.Cr.P. art. 439, there is no authority for the district attorney or the grand jury to issue a subpoena for a witness to appear before that body. We disagree, however, with relators’ presupposition that the court’s command that they appear and testify before the grand jury expired with its recess for the Labor Day weekend on September 1, 1978.

The attendance of the witnesses had been commanded by more than a subpoena ad testificandum. Pursuant to Louisiana Code of Criminal Procedure Article 439.1 they were ordered to give testimony before the grand jury which they previously had refused to give on the basis of their privileges against self-incrimination. In connection with this order they received a grant of immunity under which no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, could be used against them in any criminal case, except a prosecution for perjury, giving false statement or otherwise failing to comply with the order. La.C. Cr.P. art. 439.1. In explaining the grant of immunity and order to the relators the court placed no limitations upon its command. It simply ordered them “to appear before the Grand Jury to testify.” Thus neither the witnesses’ obligation to testify nor their grants of immunity were restricted to testimony to be given on September 1, 1978 or on any other particular day. Instead, the court’s command and the immunity granted extended to all testimony relating to matters about which the relators had previously refused to testify on the basis of their privileges against self-incrimination.

Even if it were to be assumed that the subpoenas served upon the relators had not been superseded or supplemented by the court’s order compelling relators’ testimony pursuant to Louisiana Code of Criminal Procedure Article 439.1, the relators’ duty to respond to the subpoenas was a continuing duty, despite the omission from La.C.Cr.P. art. 733 of the proviso contained in La.C.C.P. art. 1351 that a subpoena shall command the attendance of the witness “until discharged.”

Both La.C.Cr.P. art. 733 and La.C.C.P. art. 1351 were derived in part from Federal Rule of Civil Procedure 45. Federal Rule of Civil Procedure 45 contains language almost identical to that found in Federal Rule of Criminal Procedure 17, which provides for the form of subpoenas in criminal cases. Neither of the federal rules provides that a subpoena shall contain a statement to the effect that a witness must attend until discharged. In fact, all of the federal and Louisiana rules are couched in similar language and La.C.C.P. art. 1351 is the only one which expressly requires that a command to attend until discharged be included in a subpoena.

Although Federal Rule of Criminal Procedure 17 does not expressly require a person to attend “and not to depart the court without leave thereof,” this has been held to be the effect of the rule. Thus, the duty to respond to a subpoena is a “continuing duty,” and a witness who appears on the return date but fails to appear on the continued date is punishable under the contempt provision. United States v. Snyder, 413 F.2d 288 (9th Cir.), cert. denied, 396 U.S. 907, 90 S.Ct. 223, 24 L.Ed.2d 183 (1969); 8 Moore’s Federal Practice, § 17.10 (2d ed. 1977).

In listing the reasons for holding that the subpoena creates a continuing obligation the Ninth Circuit Court of Appeals in United States v. Snyder, supra, stated:

“[T]here never has been any indication in Congress or in any Advisory Committee notes brought to our attention of any intent to limit the efficacy of the subpoena by the failure to include the 28 U.S.C. § 655 language [‘and not to depart the court without leave thereof, or of the district attorney’] in the new statute .
<< * * *
“[T]he person subpoenaed is protected, should any emergency arise, from any abuse of process, or even from legitimate inconvenience to himself, by his right to move to quash.
u * * *
“[T]he Supreme Court has recognized the necessity and validity of the legal theory underlying the holding in Black-mer [i.e., it is the duty of a witness under subpoena to respond to the subpoena and remain in attendance until excused. Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932)], supra, and its practical importance to the administration of justice. United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (1950).” Id. 289-90.

For the same underlying reasons we conclude that a subpoena authorized by Louisiana Code of Criminal Procedure Article 733, which is based indirectly upon the federal rules, creates a continuing obligation until the person subpoenaed has been released from it. Moreover, because of the powers bestowed by law upon the grand jury and its foreman for the purpose of investigating criminal offenses, it is implicit within a subpoena or order of court directing a witness to testify before a grand jury that the grand jury may continue the appearance and questioning of the witness until his testimony has been completed or the need for his presence has terminated. In United States v. Germann, 370 F.2d 1019 (2d Cir.), vacated on other grounds, 389 U.S. 329, 88 S.Ct. 503, 19 L.Ed.2d 559 (1967), in holding that this authority is implied by other powers granted to the grand jury despite the absence of express provisions conferring any power to direct further appearance of a witness, the Court stated:

“ * * * [T]he power to administer an oath and question a witness would be hollow indeed if it did not include as well the power to continue the appearance and questioning of the witness until his testimony had been completed or the need for his presence had terminated. On many occasions the questioning of a witness cannot be completed at one sitting because of the complexity of the inquiry or because the witness must consult records or otherwise refresh his memory. That was the situation with Germann’s appearance. In such cases it is customary for the foreman of the grand jury to direct the witness to return for further examination at a later session of the grand jury. * * * ” Id. p. 1022.

A person subpoenaed or ordered to appear before the grand jury to testify, of course, may at any time seek protection by the court from hardship or abuse of process by moving to modify or quash the subpoena or order. The district court possesses inherently all powers necessary for the enforcement of its orders and the performance of its duty to require that criminal proceedings be conducted with dignity, orderliness and justice. La.C.Cr.P. art. 17.

For the foregoing reasons, we hold that upon the facts found from the record herein, the conduct of relators in failing to appear before the grand jury on September 5, 1978 as directed by the foreman may constitute a constructive contempt of court if their failure to appear was wilful and contumacious. See, La.C.Cr.P. art. 23(2); Art. 439 (official revision comment); Art. 439.1(D). Accordingly, the case is remanded to the district court for further proceedings consistent with this opinion.

TATE, J.,

concurs with most of the law stated, but dissents from any indication that these relators could be adjudicated in contempt or arrested and put under $50,000 bond for a failure to obey oral instructions of a jury foreman beyond the terms of these subpoenas and this order.

DIXON and MARCUS, JJ., dissent.

      . See In re Di Bella, 518 F.2d 955 (2d Cir. 1975) in which the court of appeals held that immunity granted a grand jury witness remained valid during his second appearance before a grand jury, where the order was not limited in time.

      . La.C.Cr.P. art. 733, in pertinent part, provides: “A subpoena . . . shall command the attendance of a witness at a time and place specified.”
      Federal Rule of Civil Procedure 45, in pertinent part, provides: “Every subpoena . shall command each person to whom it is direefed to attend and give testimony at a time and place therein specified.”
      Federal Rule of Criminal Procedure 17, in pertinent part, provides: “A subpoena . shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.”
      La.C.C.P. art. 1351 provides, in pertinent part: “A subpoena . . . shall command the attendance of the witness at a time and place specified, until discharged.”

      .This language was included in former 28 U.S.C. § 655, predecessor of Rule 17.

      . E. g., in furtherance of its duty to inquire into offenses triable by the district court of the parish, La.C.Cr.P. art. 437, the grand jury may meet on its own initiative at any time and place within the parish. La.C.Cr.P. art. 435. The foreman of the grand jury shall preside over all hearings, may determine rules of procedure, La.C.Cr.P. art. 436, and shall administer an oath to each witness. La.C.Cr.P. art. 440.


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

text:
    STATE of Louisiana v. John Nelson BENOIT.
    No. 62231.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.
    Bertrand DeBlanc, Lafayette, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-respondent.
   SANDERS, Chief Justice.

The State charged the defendant, John Nelson Benoit, with driving while intoxicated (DWI), fourth offense, a violation of LSA-R.S. 14:98(E), relying upon three previous second offense convictions. The defendant pled guilty, and the court sentenced him to ten years imprisonment.

The defendant filed a petition to correct the sentence; the district court denied it. We granted defendant's application to review this ruling. La., 359 So.2d 210 (1978).

The issue is as follows: can the defendant thrice convicted of DWI, second offense, be convicted of DWI, fourth offense? The defense argues that to be convicted of DWI, fourth offense, one must have been convicted of DWI, third offense, DWI, second offense, and DWI; thus, without a conviction of DWI, third offense, the court improperly imposed a sentence for a fourth offense.

The resolution of this issue depends entirely on the construction of LSA-R.S. 14:98(E), specifically, the term “fourth conviction.” LSA-R.S. 14:98 provides:

“A. Operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbiturates.
“B. Whoever operates a vehicle while intoxicated is guilty of a crime and upon conviction shall be fined not less than one hundred twenty-five dollars and not more than four hundred dollars or imprisoned in the parish jail for not less than thirty days nor more than six months or both.
“C. On a second conviction, the offender shall be fined no less than one hundred twenty-five dollars nor more than five hundred dollars and shall be imprisoned for not less than one hundred twenty-five days nor more than six months.
“D. On a third conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and may be fined not more than one thousand dollars.
“E. On a fourth conviction, the offender shall be sentenced to imprisonment at hard labor for not less than ten nor more than thirty years.
“F. Provided that any offense under this statute committed more than five years prior to the commission of the crime for which the defendant is being tried shall not be considered in the assessment of penalties hereunder.” [Emphasis supplied.]

LSA-R.S. 14:3 governs our interpretation. It states, in pertinent part:

“ . . . [I]n order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” [Emphasis supplied.]

See State v. Booth, La., 347 So.2d 241 (1977); State v. Newton, La., 328 So.2d 110 (1976).

Under this canon of interpretation, we find that the term “fourth conviction” means four DWI convictions. It is unnecessary that these convictions be consecutively numbered in graduating degrees of seriousness. The phrase “fourth conviction” is unqualified. The Legislature did not impose the requirement that the convictions be successively numbered. It is the number of convictions that is critical and not their numerical progression. Applying this interpretation to the instant facts, we hold that the court properly sentenced the defendant as a fourth offender although he has never been adjudicated a third offender, since he had four DWI convictions.

Our construction furthers the legislative intent embodied in the general multiple offender statute, LSA-R.S. 15:529.1(B), which provides:

“B. It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as, and adjudged to be, a third offender, or that an offender have been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime.”

Moreover, this Court has held that, in prosecutions under an enhanced penalty statute which is silent on the issue, the previous convictions do not have to be in numerical sequence. Thus, a defendant was correctly adjudicated a fourth offender without having been adjudicated a third offender (State v. Williams, 226 La. 862, 77 So.2d 515 (1955)), and a defendant was correctly adjudicated a third offender without having been adjudicated a second offender (State v. Clague, 224 La. 27, 68 So.2d 746 (1953)). See also State v. Cass, 188 La. 606, 177 So. 682 (1937).

We conclude that LSA-R.S. 14:98(E) requires only that the defendant have three prior DWI convictions to be adjudicated a fourth offender.

For the reasons assigned, the ruling of the district court is affirmed.

DIXON, Justice

(ascribes additional concurring reasons).

I fully subscribe to the majority opinion. State v. Neal, 347 So.2d 1139 (La.1977), involved a different problem: whether a defendant could be convicted of second offense DWI when the second offense occurred after the arrest but before the conviction for the first offense.

TATE, Justice,

dissenting.

In State v. Neal, 347 So.2d 1139, 1142 (La.1977), an equivalent issue arose as to the construction of the DWI statute, La. R.S. 14:98 now espoused by the majority opinion in the present case. We there rejected arguments similar to those now relied upon by the present majority.

In Neal, we concluded: “In our opinion, our lawmakers did not intend that individuals be subjected to enhanced punishment, including to the penitentiary, when at the time the offense was committed the offender was subject only to fine or minor imprisonment. Consonant with the general purpose of enhanced punishment statutes, the most reasonable legislative intent to ascribe to the more serious punishment accorded for a subsequent ‘conviction’ by La.R.S. 14:98 is that, if following conviction of the offense, the offender repeats the prohibited conduct, he is then subject to enhanced penalty * * *

We ourselves have followed this interpretation when other repeater statutes have been at issue, despite the lack of specific statutory language so providing. See, e. g., State v. Sharp, 156 La. 531, 100 So. 707 (1924) and State v. Kierson, 140 La. 31, 72 So. 799 (1916).

Accordingly, I respectfully dissent.


author: TATE, Justice.

text:
    STATE of Louisiana v. Bruce STOVALL and Rene Dairies.
    No. 61765.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      John J. Dolan, New Orleans, for deíénd-ants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee. ■ •,.
   TATE, Justice.

The two defendants were convicted, after joint trial, of drug offenses (Dairies: 2 counts of distribution of heroin, 1 count of attempted distribution of heroin; Stovall: 2 counts of distribution, 1 count of possession of heroin), and each was sentenced to concurrent life sentences which were coneur-rent with the lesser sentence on the lesser charges.

Upon their appeal, Dairies argues two assignments (Nos. 9 and 10) and Stovall one. We find no reversible merit to the assignments and therefore affirm, for the following reasons:

Dairies Assignment 9: The trial court sustained the state’s objection to the defendant’s attempt to introduce exhibits D-5, D-6, and D-7. These were medical records pertaining to the defendant’s psychological history, concerning the contents of which the defense expert had already testified in arriving at his opinion as to the accused’s mental condition. These exhibits were reports from a boys’ home made twelve years prior to the trial, when the accused was eight years old, and which had been forwarded to the psychologist for his use in evaluation.

Technically, the ruling may have been correct, since the exhibits themselves were not prepared by the witness himself and may have been inadmissible as hearsay, unless offered in compliance with the hospital records exception (La.R.S. 13:3714) or some other hearsay exception. State v. Williams, 346 So.2d 181 (La.1977); State v. Trahan, 332 So.2d 318 (La.1976).

Nevertheless, whether or not the ruling was erroneous, no prejudice was sustained. Although the jury was not allowed to view the reports themselves, the psychologist testified and was cross-examined upon the contents of the reports insofar as they were pertinent to his diagnosis, and the jury was fully informed of their essential import. See State v. Williams, cited above.

Dairies Assignment 10: By this, the defendant complains of extensive interrogation by the trial court of the defendant’s expert, a psychologist, testifying as to the accused’s legal insanity. The interrogation was based upon the sanity hearing report, Court Exhibit 1, which had not been introduced in evidence.

The contents of the report were not referred to by the court’s questions, which were primarily aimed at clarifying the witness’s testimony as to the accused’s test of legal insanity, i. e., distinguishing right from wrong, La.R.S. 14:14. The effort of the court — to ascertain whether the expert witness’s testimony of the accused’s insanity (i. e., that the defendant could intellectually distinguish right from wrong, but could not do so emotionally) was consistent with the report — was carefully handled so as not to communicate to the jury that the report indicated an opinion contrary to the expert’s testimony.

The extensive examination by the trial court did not, as conducted, constitute a comment on the evidence. Nevertheless, the extensive nature of this interrogation by the court, and its use of a report not introduced in evidence, would be subject to serious question, if the defendant had objected to it earlier. After objection was made, the trial judge asked only one more question of the witness, of an unobjectionable clarifying nature.

Because of the belated objection, and because in factual context the questions (although extensive) constituted an impartial clarification of the witness’s testimony, we do not find reversible merit.

Stovall Assignment 1: This assignment is based upon the court’s refusal to grant a mistrial when the prosecutor, in his closing argument, attacked the character and reputation of a co-counsel for Stovall.

During the course of the trial, this attorney testified as a witness on behalf of his client, Stovall. On cross-examination, the state sought to impeach his credibility through questions relative to his prior federal conviction of income tax violations. This cross-examination was permissible under La.R.S. 15:495, permitting impeachment of credibility by prior convictions.

However, during his closing argument, the prosecutor for the state made reference to the conviction, not as pertaining to the credibility of the lawyer as a witness, but in a manner clearly intended to belittle him in the eyes of the jury. This comment by the prosecutor prompted a motion for mistrial by the defense which was denied, but the judge twice admonished the jury to disregard the comment by the prosecutor.

Louisiana Code of Criminal Procedure Art. 774 provides that the state’s argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” The article specifically commands that the argument “shall not appeal to prejudice.” (For an excellent discussion of the problems encountered by this court in enforcement of Article 774, see Comment, The Paradox of the Prosecutor: Justice Versus Conviction During Closing Argument, 34 La.L.Rev. 746 (1974).)

We find this comment by the prosecutor to be objectionable and clearly improper, as we find several other undignified comments made by the prosecutor during his closing argument to which the defendant did not object.

Nevertheless, ultimately we find no reversible error in the judge’s denial of a mistrial in light of his admonitions to the jury to disregard the improper remarks. We have in the past demonstrated reluctance to find that improper argument was so prejudicial as to require reversal. State v. Henderson, 362 So.2d 1358 (La.1978); State v. Berain, 360 So.2d 822 (La.1978); State v. Harvey, 358 So.2d 1224 (La.1978). However, our reluctance to reverse in the present circumstances should not be construed as an indication that flagrant and deliberate prosecutorial misconduct will never be regarded as prejudicial to the fair-trial rights of the accused under our constitution and laws.

Accordingly, for the reasons assigned, we affirm the convictions of defendants Stovall and Dairies.

AFFIRMED.

      . Subsequently, when the state attempted to introduce it into evidence upon the failure of its psychiatrists to appear, the trial court properly sustained an objection to the admissibility of this uncross-examined hearsay. See Tr. 291-93.

      . Insofar as the objection was based upon the trial judge’s asking clarifying questions without commenting upon the evidence, the objection lacks merit. The conduct of the judge’s examination revealed only impartiality to the jury. He indicated no opinion on the merits, nor did he cast doubt upon the credibility of the witness. This court has approved questioning of witnesses by the judge when these standards are observed. State v. Wagster, 361 So.2d 849 (La.1978); State v. Nicholas, 359 So.2d 965 (La. 1978); State v. Groves, 311 So.2d 230 (La. 1975).
      As McCormick on Evidence, Section 8, p. 12 (2d ed. 1972) notes: “The judge in his discretion may examine any witness to bring out needed facts which have not been elicited by the parties . . . [However, in those states where] the judge does not have power to comment on the weight of the evidence, the judge’s questioning in jury cases must be cautiously guarded so as not to constitute an implied comment.”


text:
    STATE of Louisiana, Appellee, v. Thomas P. LUKEFAHR, Appellant.
    No. 61849.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, Edwin Marger, Atlanta, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, First Asst. Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Research and Appeals Division, for plaintiff-appellee.
   TATE, Justice.

The defendant Lukefahr was convicted of possession of marijuana with intent to distribute in violation of La. R.S. 40:966(A)(1), and he was sentenced to serve ten years at hard labor and fined $15,000. '

On his appeal, the defendant filed 74 assignments of error. They principally concern: (1) a motion to recuse the trial judge; (2) the hearing and denial of a motion to suppress physical evidence; (3) the denial of pre-trial discovery; (4) objection to evidence concerning the defendant’s use of an alias; (5) evidence and references concerning the defendant’s participation in other crimes than that with which charged; and (6) an allegedly illegal sentence. .

1. Motion to Recuse

The defendant argues error in the denial of motion for recusal of the trial judge and in the failure to refer it to another judge for a hearing (Assignments 1 and 2).

The defendant grounded his motion on allegations that the trial judge was biased and prejudiced, because in pre-trial conferences he stated there would be no continuance, and because at the bond reduction hearing he admitted evidence pertaining to the guilt or innocence of the defendant.

A motion to recuse a trial judge must be based on more than mere general conclusory allegations. State v. Bell, 346 So.2d 1090 (La. 1977); State v. Maduell, 326 So.2d 820 (La. 1976); State v. Collins, 288 So.2d 602 (La. 1974). If the motion, on its face, does not show grounds to recuse even if the allegations are proved, the trial judge may overrule the motion without referring it to another judge. La.C.Cr.P. art. 674; State v. Bell and State v. Collins, cited above.

Here, the trial judge’s alleged statement about a continuance did not indicate any bias or prejudice against the accused. His handling of the bail reduction hearing was in accordance with law. Further, the judge’s rulings on these matters, even if improper oh their merits (and no impropriety is shown), may be attacked directly by assigning error to the rulings themselves, but do not state a valid ground for recusal as alleged (or explained, Tr. II, 3-5).

2. The Motion to Suppress Physical Evidence

The defendant is prosecuted for possession of a large quantity of marijuana found in his truck, after he was stopped for a traffic violation. His motion to suppress is based upon the alleged warrantless search and seizure without probable cause.

Several contentions are raised concerning the hearing upon and the denial of the motion.

A. At the hearing on the motion, the defendant attempted to testify for limited purposes. He wished to deny consent to the search or any traffic violation justifying the police to stop him on the highway, but he desired to assert his non-incrimination privilege against all other questioning. His assignments 3, 4,' and 7 complain of the trial court’s refusal to let him do so.

A defendant who testifies in a pre-trial suppression hearing is subject to cross-examination as to all issues relevant to such hearing, although not to cross-examination on the entire case. State v. Lovett, 345 So.2d 1139, 1142 (La. 1977); State v. Thomas, 208 La. 548, 23 So.2d 212 (1945); cf., La. R.S. 15:280 (1950). The evidence taken at such hearing is not admissible at the trial of innocence or guilt (the merit trial).

In its exercise of its control of the proceedings before it, La.C.Cr.P. art. 17, the trial judge may refuse to let a witness testify who, contrary to law, is willing to testify for a limited purpose only. State v. Coleman, 254 La. 264, 223 So.2d 402 (1969).

An issue at the motion was whether there was probable cause for a warrantless search. The state intended to cross-examine the defendant, as the colloquy shows, on events relevant to probable cause beyond those immediately concomitant with the stop and search. If defendant’s counsel feared a fishing expedition, as he claimed, his remedy (if he wished defendant to testify at the hearing) was to object to questions if irrelevant to the hearing’s issues, not to offer the defendant as a witness for restricted purposes only.

Under the circumstances shown, we find no abuse of discretion in the trial court’s rulings.

B. The defendant complains of the trial court’s refusal to suppress the marijuana seized and its admission into evidence of samples and photographs of it. (Assignments 13, 60, 68).

To uphold the trial court’s ruling, we need not reach the question whether there was probable cause, nor whether exigent circumstances justified the warrantless search, since there were facts in the record from which the trial judge could fairly conclude that the defendant had consented to the search.

Lieutenant Wicker testified that while he had the defendant under observation, the defendant drove his truck across the center line of the highway, forcing another motorist off the traveled portion of the road. (This uncontradicted testimony was corroborated by another officer.) Wicker hailed the truck to the side of the road, and upon seeing that defendant had a Florida driver’s license, “wired-on” Florida license plates, and a decal with a Baton Rouge address on the door, asked him whose truck it was.

Wicker testified that the defendant said he didn’t know whose truck it was, that a man at a truck stop had paid him a hundred dollars to drive it somewhere and that he knew nothing about its contents. Wicker testified that he then asked if defendant minded opening up the back of the truck; defendant said; “No, I don’t mind,” and produced the keys and opened the back end of the truck.

Another police officer present somewhat corroborated this latter testimony. Although it was the defendant’s apparent purpose to deny this version, it is otherwise uncontradicted.

Under these circumstances, indicating a genuine and voluntary consent, it is not determinative whether probable cause existed for the search or whether the defendant had been warned of his right to refuse to permit the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The evidence shows a valid stop for a traffic violation; under the undisputed evidence, there is' no substantial factual issue as to a coerced consent through exploitation of a traffic arrest (whether valid or invalid).

C. The defendant complains of various evidentiary rulings at the hearing on the motion to suppress. Assignments 5, 6, 8, 9, 10, 11, and 12. We have examined these rulings and find no error.

3. Denial of Pre-Trial Discovery

Assignments 14-32 concern attempts by the defendant to secure pre-trial discovery of details of the state’s case by an application for a bill of particulars, by a motion for oyer, and by a motion to permit defense inspection of state files. At the time of the trial, the denial of such discovery was within the discretion of the trial court. See trial court’s rulings, Tr. II, 126-40.

4. Reference to Alias Used by the Defendant

At the time the defendant was arrested, he was bearing a driver’s license in the name of Thomas James Davidson, by which name he identified himself when he was arrested. By motions and a series of objections (Assignment Nos. 34, 35, 43, 46, 52, 54, and 64), the defendant sought to prevent testimony as to this alias, allegedly because the evidence was prejudicial and suggested the defendant to be of criminal characteristics. The objections to the evidence concerning this circumstance of the arrest are patently without merit, and no pertinent authority is cited in support of these assignments.

5. Evidence Concerning the Defendant’s Participation in Other Crimes

The defendant was arrested in Washington Parish on February 22, 1977, and charged with the possession of a large amount of marijuana with intent to distribute it. Earlier that morning, the defendant had driven his van truck from Livingston Parish to a location in Washington Parish, where if received a load (apparently the marijuana). On April 27, four days before the trial, the district attorney gave written notice to the defendant that, for purposes of proving the accused’s guilty knowledge and specific intent, the state intended to introduce evidence of marijuana activities at the Livingston Parish location from which the defendant had started that morning.

Several assignments are based upon this other-crime evidence:

A. By Assignment 37, the defendant complains that he was not granted a continuance to prepare a defense against the Pri-eur evidence.

In State v. Prieur, 277 So.2d 126, 130 (La. 1974), we stated that “[t]he State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant’s testimony.” In State v. Tennant, 352 So.2d 629 (La. 1977), we held that notice of intent to use other crimes given six days prior to trial was ample.

The granting of a continuance is a matter within the discretion of the trial judge. State v. Williams, 262 La. 317, 263 So.2d 306 (1972). Here, defense counsel merely complains of insufficient time to prepare, without alleging specific facts to show prejudice to the defendant. On this bare allegation, we cannot conclude that the trial judge abused his discretion. (The implication from the pre-trial hearings is that the defendant was aware that this interrelated evidence might be introduced.)

B. By Assignments 39, 40, 41, 44, 48, and 50, the defendant objected to any evidence concerning the surveillance of the defendant in Livingston Parish on the morning of his arrest, as well as of his earlier stop in Washington Parish where he picked up his present load. Even if considered “other crime” evidence rather than part of a continuous crime, the evidence was relevant to proof of the specific intent and guilty knowledge requisite to part of the crime charged, and its probative value exceeded its prejudicial effect:

The state did not, for instance, introduce evidence of extensive activities at the Livingston location independent of the present offense. A state witness did allude briefly to the reason for the surveillance (suspicion of criminal activity, based upon certain objective facts) of the Livingston location from which the accused started that morning; but, in the main, the state’s evidence of the antecedent marijuana activity was limited to the morning of the arrest and the incidents leading up to it.

Prieur does not, as the defendant contends, require a pre-trial evidentiary hearing as to whether extraneous other-crime evidence may be admitted. It only requires that, before such evidence is introduced, the trial court must determine, on the basis of the showing requisite for it to do so at a hearing outside the presence of the jury, that the extraneous acts are probative of a real issue and that their probative value exceeds their prejudicial effect.

6. Other Assignments

Assignments 49, 53, 55, 56, 58, 59, 61, 62, 63, 65, 67, 68, and 71 complain of testimony of state witnesses, admitted over objection, which is alleged to be irrelevant or inflammatory. Assignment 70 complains of a failure to strike an allegedly prejudicial and improper question by the prosecutor. Assignment 66 complains of a leading question asked by the state of its own witness. Assignment 72 complains of a failure to grant a mistrial when the state in closing argument made a comment allegedly improper.

We have examined these contentions and find no reversible merit to any of them. Nor is there merit to Assignment 73, complaining of the denial of a motion for a new trial based on the alleged errors which are the basis for the assignments of error.

Assignments 33, 36, 38, 42, 45, 47, 51, and 57 are not argued and are deemed abandoned.

7. The Allegedly Illegal Sentence

By his assignment 74, the defendant questions the legality of sentence imposed upon him; namely, the imposition of an additional year’s imprisonment if he fails to pay the fine of fifteen thousand dollars imposed upon him, in addition to the maximum ten-years imprisonment.

La. R.S. 40:966(B)(2) provides that, for conviction of possession with intent to distribute marijuana (40:966(A)(1)), a person shall be sentenced “to a term of imprisonment at hard labor for not more than ten years and pay a fine of not more than fifteen thousand dollars.”

The defendant complains that the sentence is illegal, since if he fails to pay the fine he is subject to a term of eleven years at hard labor, one year more than the statutory maximum.

In the case of an indigent defendant, it is impermissible to impose a prison term in lieu of fine payment that would result in the defendant’s serving a longer term than the statutory maximum for the offense. State v. Williams, 288 So.2d 319 (La. 1974); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). However, there is nothing in the record to suggest that this defendant is indigent; if he is, of course, upon appropriate motion and hearing the additional imprisonment may be avoided. See Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971).

The extra prison term of one year in lieu of payment of fine is expressly authorized by La.C.Cr.P. art. 884: “If a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year * 9"

This article must be read together with La. R.S. 40:966 to establish the statutorily possible maximum penalty, where no special circumstances such as indigency are present.

By brief, the defendant also seeks review of his sentence on the ground that it was excessive under the circumstances. However, in addition to absence of an assignment on the issue, no formal objection to the sentence was lodged at the time of sentencing, and appeal therefrom on the ground of excessiveness under the circumstances is foreclosed. State v. Williams, 340 So.2d 1382 (La. 1976).

Decree

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

AFFIRMED.


author: DIXON, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Dudley A. PHILIPS, Jr.
    No. 58505.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

    Leonard Führer, Alexandria, Chairman, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tal-lulah, John F. Pugh, Thibodaux, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, Executive Counsel, La. State Bar Assoc., Committee on Professional Responsibility, for petitioner.
    Dudley A. Philips, Jr., in pro. per.

       Dennis, J., would grant a rehearing.

   DIXON, Justice.

The Louisiana State Bar Association, through its Committee oh Professional Responsibility, instituted this disciplinary proceeding against Dudley A. Philips, Jr., a member of the Louisiana Bar practicing in New Orleans. The Committee in its petition relies upon the authority of Article 15, § 8.of the Articles of Incorporation of Louisiana State Bar Association, as effective September 1, 1971, and this proceeding is based on respondent’s conviction in Criminal District Court of Orleans Parish of theft of $88,945.30. This court has original jurisdiction over these proceedings as provided in Article V, § 5 of the Louisiana Constitution of 1974.

On October 29, 1975 respondent Dudley A. Philips, Jr. was charged by bill of information with theft of $88,945.30, in violation of R.S. 14:67. The money allegedly was taken from his client, a cab company. On June 29, 1976 respondent withdrew his plea of not guilty and entered a plea of guilty. Respondent was sentenced to two years at hard labor, the execution of sentence suspended, and he was placed on three years active probation. As a special condition respondent was ordered to make restitution of $25,000 to his client within two years of the date of sentencing. Later, the amount of restitution was amended to order respondent to pay $75.00 per month from October 1, 1978 to October 1, 1981.

On August 23, 1976 a motion and order for the suspension from the practice of law was filed with this court and the order was signed September 14, 1976. On October 8, 1976 a petition for disciplinary action against respondent was filed. This court appointed Felicien Lozes, an attorney engaged in active practice of law for not less than ten years as Commissioner to take evidence and to report to the court his findings of fact and conclusions of law. On February 24, 1978 testimony and evidence were taken at a hearing before the appointed Commissioner and in his subsequent report, the Commissioner stated that while the offense of which the respondent was convicted was serious enough to warrant whatever discipline this court felt appropriate including disbarment, the Commissioner recommended that the respondent be suspended from the practice of law for at least two years. The Committee on Professional Responsibility concurred with the Commissioner. Also concurring with the Commissioner’s findings, the respondent requested that this court accept the Commissioner’s recommendation for disciplinary action and that he be given credit for the time suspended beginning from September 14,1976.

In testimony before the. Commissioner, respondent stated that while practicing law in New Orleans, he was employed for some fourteen years by a local cab company. During the last three or four years of employment in about ten percent of the cases, respondent would receive settlement checks from his client based on recommendations of all parties made at the pretrial conference. Respondent would then endorse the checks made payable to the injured party and his attorney and deposit the money in his own account. Respondent would make the various attorneys wait for a month or two months and then make a settlement for less money than the originally agreed on pretrial amount. The excess accumulated to approximately $90,000 in three or four years.

Respondent maintained an account of these funds in a file cabinet drawer but kept no running calculation of the amount of money “saved.” Nor did he report to the client the amount of the difference. Respondent commingled the money with his general office account and paid business and personal expenses out of the money. When the client’s board of directors changed and a new insurance policy with no deductible for personal injury claims was imminent, respondent decided that the insurance company would want their own attorneys to handle the cab company’s claimants. Respondent offered to make an accounting of the funds, but an auditing firm was hired. Respondent had begun making restitution when the bill of information was filed against him. Subsequently, respondent made full restitution except for the $25,000 special condition of his sentence, which was later adjusted by the trial judge.

Respondent also testified at the hearing that charges were brought against him in federal court for making a fraudulent financial statement to a federally insured institution. One charge was dropped and the respondent plead guilty to the other charge. He testified that in 1977 Judge Gordon (of the Eastern District) deferred sentencing on the second charge because respondent had made restitution to the banks from which he had borrowed the money.

Respondent disputes none of the facts but contends that there are mitigating circumstances: restitution of part of the money even before criminal charges were brought against him; final restitution of all the money; respondent’s long period of active law practice, and his suspension of two years.

An action against members of Louisiana Bar convicted of a felony is governed by § 8 of Article XV of the Articles of Incorporation of Louisiana State Bar Association and in particular subsections 7(a) through 7(d). The sole issue before this court in a disciplinary proceeding based on a conviction for a crime is whether the crime warrants discipline and, if so, the extent thereof. Louisiana State Bar Association v. Hennigan, 340 So.2d 264 (La. 1976), appeal dismissed 430 U.S. 925, 97 S.Ct. 1540, 51 L.Ed.2d 769 (1976); Louisiana State Bar Association v. Loridans, 338 So.2d 1338 (La.1976).

The respondent plead guilty to felony theft of $88,945.30 in violation of R.S. 14:67. This court has held that such a violation is one of moral turpitude. Louisiana State Bar Association v. Bearden, 258 La. 983, 249 So.2d 103, 104 (1971); Louisiana State Bar Association v. Powell, 250 La. 313, 195 So.2d 280 (1967).

Disciplinary Rule 9-102 provides the legal profession with the proper method of preserving identity of funds and property of a client. At the hearing before the Commissioner, respondent testified that he commingled and used his client’s funds for his own business and personal expenses. The Commissioner found that respondent had violated Disciplinary Rule 9-102, and respondent accepted the Commissioner’s findings of fact.

It is not disputed that the crime of felony theft of $88,945.30 of client’s funds perpetrated in direct connection with respondent’s law practice is a serious crime, and both the Commissioner and petitioner concluded that the crime warrants discipline. The Commissioner recommended that the respondent be suspended from practice of law for at least two years, the petitioner recommended that he be suspended for two years in addition to the two year suspension already served, and the respondent requested that this court consider his suspension for the past two years as adequate discipline. We are not inclined to approve any of these recommendations. In our opinion, the record requires disbarment to protect the courts, the legal profession and the public.

This court has disbarred attorneys who are convicted of a felony. Louisiana State Bar Association v. Hamilton, 343 So.2d 985 (La.1977); Louisiana State Bar Association v. Hennigan, supra; Louisiana State Bar Association v. Shaheen, 338 So.2d 1347 (La. 1976); Louisiana State Bar Association v. Loridans, supra.

We noted in Louisiana State Bar Association v. Selenberg, 270 So.2d 848 (La.1972), cert. den. 414 U.S. 1021, 94 S.Ct. 443, 38 L.Ed.2d 312 (1973), that misuse of client’s funds represents the gravest form of professional misconduct. It strikes at the heart of public confidence in the legal profession and warrants disbarment. See also, Louisiana State Bar Association v. Weysham, 307 So.2d 336 (La.1975). Refusing to follow the Commissioner’s recommendation in Louisiana State Bar Association v. Haylon, 250 La. 651, 198 So.2d 391 (1967), this court reasoned that the misappropriation by an attorney of funds collected for his client is such a serious breach of trust that it would be contrary to public interest to allow the offender to continue to practice law. High standards of honesty have been erected for those engaged in the legal profession and all members of the profession are required to take an oath to uphold these ideals of exemplary conduct upon their admission to the Louisiana Bar. “Hence, the violator of the trust of his clients must expect disbarment.” Haylon, supra, at 657, 198 So.2d at 392. In Haylon we found that suspension of the offender as recommended by the Commissioner would not protect the public and disbarment was the only appropriate action.

In the instant proceeding the evidence adduced at the hearing indicates an obvious disregard by the respondent of established ethical standards. The succession of acts of respondent over three to four years and the total amount taken indicates the extent and seriousness of the respondent’s ethical misconduct; respondent did not commit a single, isolated act, but he continued a pattern over three or four years of spurious settlements and commingling. This continuing pattern is sufficiently grave to evidence a lack of moral fitness for the practice of law and warrants disbarment. Louisiana State Bar Association v. Gremillion, Jr., 320 So.2d 171 (La.1975); Louisiana State Bar Association v. Powell, supra; Louisiana State Bar Association v. Klein, 253 La. 603, 218 So.2d 610 (1969).

We note that there are some mitigating circumstances in the instant proceeding. Restitution is a mitigating factor, but restitution does not in all circumstances obviate the need for disciplinary action. Weysham, supra, at 338; Klein, supra, 253 La. at 607, 218 So.2d 610. The respondent only began restitution after a new board of directors took control of the cab company, and after it became imminent that the insurance company’s attorneys would take over the injury claims against the cab company and that there would be an audit. Respondent was using these funds for his business and personal expenses and had a shortage that he could not make up when the audit occurred and when the bill of information was filed. Although he admitted at the hearing that he had “badly handled” his client’s money, nowhere in the hearing transcript did the respondent express any regret over his continued pattern of spurious settlements that harmed both the injured claimants and the attorneys representing them.

Respondent contends another mitigating circumstance is his long period of law practice, over thirty years, in which he always conducted himself properly, but respondent’s prior fidelity does not preclude disbarment. Selenberg, supra, at 849. Respondent also contends that two years suspension should be considered as mitigating circumstances, but in Haylon, supra, 250 La., at 657, 198 So.2d 391, this court found disbarment, not suspension, was the only appropriate action for misappropriation by an attorney of funds collected for his client. In Haylon, the attorney misappropriated $2742.00 in a single, isolated act and the Commissioner recommended suspension for four years. In refusing to follow the Commissioner’s recommendation, we stated: “Suspension does not vouchsafe the protection to which the public is entitled.” Haylon, supra, at 657, 198 So.2d at 392.

For the reasons assigned, it is ordered, adjudged and decreed that the name of Dudley A. Philips, Jr., respondent herein, be stricken from the roll of attorneys and his license to practice law in Louisiana be revoked and canceled.

SUMMERS, J., concurs.

      . “(7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows: (a) The Committee will file a petition in the Supreme Court seeking disbarment or any other remedy that the Committee deems appropriate, and the petition will be served upon the respondent in the same manner as in ordinary proceedings.
      (b) When issue is joined by answer by the respondent, a Commissioner will be appointed by the Supreme Court to represent the Court in the same manner as in ordinary proceedings.
      (c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
      (d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.”

      . “DR 9-102. Preserving Identity of Funds and Property of a Client
      (A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      (1) Funds reasonably sufficient to pay bank charges may be deposited therein.
      (2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
      (B) A lawyer shall:
      (1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
      (4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”