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

text:
    STATE of Louisiana v. Eddie Lee MARSHALL.
    No. 60734.
    Supreme Court of Louisiana.
    May 22, 1978.

      Alton T. Moran, Director, Daniel R. Atkinson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen , Ossie B. Brown, Dist. Atty., Lennie F. Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SUMMERS, Justice.

In a single two-count bill of information defendant Eddie Lee Marshall, Ernest Anderson and Rufus McDonald were jointly charged with the armed robbery and attempted aggravated kidnapping of Edward Gaines. After waiving trial by jury, they were jointly tried. Defendant Marshall was found guilty on both counts. On the armed robbery count he was sentenced to serve thirty years at hard labor without benefit of parole, probation or suspension of sentence. On the attempted aggravated kidnapping charge he was sentenced to ten years at hard labor, the sentences to run consecutively. Anderson was also found guilty on both counts. He was sentenced to twenty years without benefit of parole, probation, or suspension of sentence on the armed robbery charge and to ten consecutive years for the attempted aggravated kidnapping charge. His appeal was affirmed in State v. Anderson, 358 So.2d 276 (La.1978). McDonald was acquitted.

In this appeal Marshall relies on three assignments of error. They are without merit and his conviction and sentence are affirmed.

About midnight on November 6, 1975 Edward Gaines stopped his Buick automobile at a stop sign on Napoleon Street at its intersection with Louise Street in the city of Baton Rouge. The stop occurred near the Chatter Box Lounge. He was surprised when Eddie Marshall approached his car, opened the door on the driver’s side, put a knife to Gaines’ side, told him that if he resisted he would cut his heart out, and made Gaines move over. Marshall then took control of the vehicle and drove a short distance to a house at 266 Louise St.

Upon arrival Gaines was forced at knife point into the residence where Lester Anderson and Rufus McDonald were present. Thereafter, while threatened by Marshall wielding the knife, Gaines’ shirt and coat were removed and tried on for fit by Marshall and Anderson. Marshall then took Gaines’ shirt and belt and demanded his money. There followed an attempt by Marshall to force Gaines to perform oral sex upon him. When Gaines resisted, Marshall wiped a rag containing human excrement across Gaines’ face.

The three defendants then forced Gaines into the rear of his automobile and tied his hands. With Anderson driving they crossed the river into West Baton Rouge Parish. On the way Gaines’ pleas to be freed were rejected. As they approached a gas station for gasoline, Gaines managed to free his hands and escaped from his captors. They fled the scene and were later apprehended at the house on Louise St. where a knife and belt were seized as evidence by the arresting officers.

Assignment 1. Defendant moved to suppress the objects seized by the police. After a hearing the trial judge suppressed the knife and belt. Later during the trial while Gaines was testifying as a State witness he stated that when he was driving home on the night of November 6,1975 and while he was stopped at the intersection, the door on the driver’s side opened and a sharp instrument was pressed against his side; whereupon defense counsel objected to any testimony about a sharp instrument, contending that the suppression of the knife as evidence made testimony concerning that object inadmissible. The objection was overruled.

Following this ruling Gaines again described the knife as “pointed” and defense counsel renewed his objection to testimony referring to the suppressed knife. Still later in his testimony Gaines testified that Marshall took his belt at the house on Louise Street and defense counsel renewed his objection. With each objection the defense moved for a mistrial.

It should be noted that .no mention was made in Gaines’ testimony of the fact that the knife or belt had been seized by the police. References to these objects occurred while the witness was recounting the events which were elements of the offenses for which defendant was being tried — facts and circumstances in which he was forcibly cast in the role of victim. All of the testimony related to events of which the witness had personal knowledge obtained prior to the illegal search and seizure. At no time were the knife or belt introduced into evidence.

In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the United States Supreme Court held “that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in state court.” But we do not understand this holding to mean that no reference can be made to tangible evidence which has been suppressed. It is one thing to say that the State cannot make affirmative use of the objects unlawfully obtained. It is another to say that the State cannot use information obtained by witnesses at a time and place entirely unrelated to the unlawful search and seizure, when the information is not come by as a result of the unlawful search and seizure.

Even in its broadest concept, the fruit of the poisonous tree doctrine has been a rule prohibiting the government from using, in any manner prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of its agents.

In this case no violation of defendant’s Fourth Amendment rights resulted from the illegal search, because facts were testified to which were learned by the witness at a time and place unrelated to that illegality. The facts referred to in the testimony therefore had an independent source not tainted in any way by the illegal search.

In a case where a prosecution witness was found on the premises of a gambling casino during an illegal search and seizure, his testimony relating to gambling activities was not considered inadmissible as the “fruit of the poisonous tree” where it was shown that government agents had seen him frequenting the casino on a number of previous occasions. United States v. Barrow, 363 F.2d 62 (3d Cir. 1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541.

The rule which supports the views expressed here is not new. It was recognized in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), almost sixty years ago. There it was said that facts learned as a result of information obtained in an illegal search and seizure do not become sacred and inaccessible by reason of such illegality, and that if knowledge of them is gained from an independent source, they may be proved like any others. Adhering to the views expressed in that ease, courts in a number of cases have held or recognized that the “fruit of the poisonous tree” doctrine excludes evidence obtained from or as a consequence of an unlawful search and seizure but that doctrine does not require the exclusion of such evidence when knowledge thereof can be attributed to an independent source. United States v. Avila, 227 F.Supp. 3 (D.C.Cal.1963); State v. O’Bremski, 70 Wash.2d 425, 423 P.2d 530 (1967); 43 A.L.R.3d 399. See also this Court’s decision in State v. Anderson, 358 So.2d 276 (La.1978).

Based upon these principles, there is no merit to this assignment.

Assignment 3: Having testified as a state witness Gaines was cross-examined. Defense counsel asked if it was not a fact that Gaines stopped his car in front of the Chatter Box Lounge to ask Marshall to come over so that he, Gaines, could proposition him for homosexual relations that night. Gaines denied emphatically that he stopped for that purpose, explaining that he stopped because a stop sign at the intersection tequired him to do so.

Continuing cross-examination defense counsel asked Gaines if he had ever engaged in homosexual activities with Marshall. Gaines answered that he had not. He was then asked if he had engaged in homosexual activities with “anyone else”. When the State’s attorney objected, defense counsel remarked that the question involved a critical issue of credibility. In all probability this remark was based upon the defense theory that Gaines propositioned Marshall, came to the house on Louise Street voluntarily, committed homosexual acts with Marshall, and then refused to pay Marshall. The trial judge sustained the objection, and the ruling is assigned as error. No further effort was made by the defense to pursue this line of questioning, although cross-examination thereafter did seek to overcome Gaines’ testimony to the effect that Marshall attempted to force him into an act of oral copulation. Cross-examination on this latter point was without objection. At no time was other evidence of the victim’s alleged prior homosexual activities sought to be introduced by the defense.

Keeping in mind that this was a bench trial, and recognizing the rule that credibility of a witness may be attacked generally by showing that his general reputation for truth or for moral character is bad or it may be attacked only insofar as his credibility in the case on trial is concerned, this assignment has no merit. La.Rev.Stat. 15:490.

When the general credibility of a witness is attacked, the inquiry must be limited to general reputation, and cannot go into particular acts, vices or courses of conduct. La.Rev.Stat. 15:491; State v. Banks, 307 So.2d 594 (La.1975); State v. Corbin, 285 So.2d 234 (La.1973). In the factual context of the case at bar the interrogation at issue concerning homosexual activities of the victim with “anyone else” is not permitted by the rule. It is an inquiry into “particular acts, vices or courses of conduct.” As such it is an improper general attack upon the witness’ reputation in order to impugn his credibility. General reputation is established by witnesses who know the person whose reputation is at stake, know the community or general area in which he lives and know the reputation he has acquired in that community. No such proof was offered.

Proof of a person’s bad moral character is limited to reputation under the rule relating to assault upon a person’s credibility. It may not be shown by particular instances.

However, the rule does permit an attack on the witness insofar as his credibility in the case on trial is concerned. In that respect, defense counsel did question the victim asking if he had propositioned Marshal and whether he had engaged in homosexual activities with Marshall. Other questions were propounded to the victim concerning the defense contention that homosexual conduct did in fact occur between Marshall and Gaines. This was denied by Gaines. Thus an attempt was made to impugn the witness’ credibility “in the case on trial” without objection by the State.

Considering the fact that the defense did produce testimony tending to establish Gaines’ homosexuality in this case, other like conduct with “anyone else” at another time and place was collateral to the issue before the court. Attempts to contradict the witness on that collateral issue was improper.

The reasons for such a rule are obvious. Not that the witness may not have lied— but the fact that Gaines denied his homosexuality in the case was in reality collateral to charges of armed robbery and attempted aggravated kidnapping. Homosexuals, too, can be robbed and kidnapped. Suppose the defense theory — that Marshall was propositioned and Gaines did in fact perform deviant sex acts with him — had been established to the satisfaction of the trial judge, would that lessen the effect of proof of robbery and kidnapping when physical evidence and the testimony of disinterested witnesses supported the essential elements of those crimes? The answer is that it would not. Unless inquiry into such a collateral issue is limited, courts would be involved in endless interrogation of witnesses about matters shedding no light upon the real issues before it. The trial judge in the exercise of his discretion, who, in this bench trial, was judge of the credibility of the witnesses on all issues, including guilt or innocence, properly drew the line by his ruling. By the ruling he stalled the defense excursion into matters the judge undoubtedly realized would have no bearing on the guilt or innocence of the accused. La.Rev.Stat. 15:275. Faced with the proposition that a wide latitude must be accorded on cross-examination, and a feeling that the trial judge may have drawn a thin line by his ruling, it is nevertheless this Court’s view that the specter of error was indeed harmless. No miscarriage of justice or denial of substantial rights to the accused has resulted. La.Code Crim.Pro. art. 921.

This assignment has no merit.

Assignment 9: Marshall’s codefendant Anderson took the stand in his own defense. In answer to defense counsel’s questions, Anderson testified that he had been convicted of burglary and sentenced to imprisonment in the State penitentiary. He was then asked if he had been in trouble since his release from the penitentiary, to which he replied, “No, I haven’t.” On cross-examination the State’s attorney asked Anderson if he had been arrested since his discharge. Defense counsel objected. The trial judge sustained the objection, ruling that only interrogation concerning convictions would be permitted. Thereafter defense counsel moved for a mistrial. The motion was denied.

No witness, whether he be defendant or not, can be asked on cross-examination whether he has ever been indicted or arrested, and can only be questioned as to convictions, in accordance with the rules of evidence prescribed by law. La.Rev.Stat. 15:445, 446, 495. It was correct, therefore, for the trial judge to sustain the defense objection. But it is not understood that the law mandates a mistrial in every instance where a question is asked involving indictment or arrest to which an objection has been sustained before the witness has answered.

Articles 770 and 771 of the Code of Criminal Procedure are designed to guard against improprieties in the presence of the jury. These articles do not mandate a mistrial in a bench trial when such a prohibited question is propounded. State v. Maney, 242 La. 223, 135 So.2d 473 (1961).

In this bench trial, this single instance of an unanswered question referring to arrest did not prejudice this trial judge. The assignment is therefore without merit.

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

DIXON, J., concurs.

DENNIS, J., concurs with reasons.

TATE, J., dissents and assigns reasons.

CALOGERO, J., dissents for reasons assigned by TATE, J.

DENNIS, Justice,

concurring.

I join in the majority opinion and assign additional reasons for concurring in the rejection of defendant’s assignment number three complaining of the trial judge’s limitation of cross-examination during the testimony of the victim.

The common law tradition of “cross-examination to credit” permits counsel to inquire into the associations and personal history of the witness, including any particular misconduct which would tend to discredit his character, though it has not been the basis for conviction of crime. By the rule obtaining in mpst jurisdictions of the United States, in recognition of the danger of victimizing witnesses and of undue prejudice to the parties, cross-examination concerning acts of misconduct is subject to a discretionary control by the trial judge. 3A Wigmore, Evidence, § 983 at 847 (Chadburn rev. 1970); McCormick, Evidence, § 42 (Cleary ed. 1972). According to McCormick, some of the factors to be considered are:

“ * * * (1) [WJhether the testimony of the witness under attack is crucial or unimportant, (1) the relevancy of the act of misconduct to truthfulness, depending upon the rule followed in the jurisdiction in that respect, (3) the nearness or remoteness of the misconduct to the time of trial, (4) whether the matter inquired into is such as to lead to time-consuming and distracting explanations on cross-examination or re-examination, (5) whether there is undue humiliation of the witness and undue prejudice.” McCormick, § 42 at 83. (footnotes omitted)

In my opinion, the majority American view correctly leaves the repression of possible abuses by such cross-examination in the discretion of the trial judge, and the judge in the instant case reasonably exercised his discretion. In addition to the reasons stated in the majority opinion I find the following factors significant: the defense theory that the victim voluntarily came to the house for homosexual purposes is not necessarily inconsistent with the victim’s testimony that he was robbed at the house and forcibly taken across the river into West Baton Rouge Parish where he escaped. Thus evidence of extrinsic homosexual acts by the victim was of limited probative value as to the elements of the charged crimes. The broad inquiry into whether the victim had ever engaged in homosexual acts with anyone else in his life could have encompassed misconduct extremely remote from the time of the trial, led to time-consuming and distracting explanations, and caused undue humiliation of the witness.

TATE, Justice

(dissenting).

The issue is close, and the majority’s view is quite persuasive. Nevertheless, I dissent from the holding that Assignment 3 presents no error in its restriction of cross-examination under the circumstances. See my dissenting opinion in a companion case, State v. Anderson, 358 So.2d 276 (La.1978).

CALOGERO, J., concurs.


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Stephen Clifton BYERS. STATE of Louisiana v. Frank VOELKER, III, et al. STATE of Louisiana v. James Dewey CARR and John Quade.
    Nos. 60929, 61037 and 61053.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      Bruce M. Bolin, Fish & Montgomery, Minden, for Stephen Clifton Byers.
    Voelker, Ragland, Brackin & Crigler, Charles R. Brackin, Lake Providence, for Frank Voelker, III.
    Stephen R. Burke, Minden, for Carr and Quade.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-respondent.
   SANDERS, Chief Justice.

The State charged the defendants with producing marijuana, a violation of LSA-R.S. 40:966(A)(1). The defense filed motions to suppress the marijuana, asserting that it was obtained in an unconstitutional search and seizure.

Two evidentiary hearings before different judges were held on the motions with a stipulation that the evidence adduced at the first hearing would be considered in the second. The motions to suppress were overruled.

We granted writs to review the rulings. La., 352 So.2d 703, La., 352 So.2d 704 (1977).

The following facts are pertinent to our consideration of the validity of the search and seizure:

In October of 1976, a hunter was on the 640-acre-tract of land owned by Burt and Rollin Williams. The property was posted with signs. These signs bore such announcements as: “PRIVATE ROAD; DO NOT ENTER”; “POSTED NO HUNTING, FISHING, TRESPASSING”; “POSTED NO HUNTING.” In addition to these signs, the trial judge found that one of the defendants had “posted signs along one of the logging roads leading from the public road into the property and erected two posts set in concrete and connected with a chain in an effort to deny access to the general public.”

While the unidentified hunter was crossing the land, he saw a patch of plants under cultivation, which he suspected was marijuana. He reported this observation to the Chief of Police of Sibley, Louisiana. Together they returned to the land and looked at the plants. Later, the Chief of Police contacted Deputy Sheriff Robinson, and these two men went on the property and looked at the plants. Both of these entries on the land were made without a search warrant and without the consent of the owner. No other law enforcement activity took place during 1976.

In early 1977, Deputy Robinson went on the property again to determine whether marijuana was still being cultivated. This entry was also made without a warrant or consent.

Deputy Robinson concluded from his inspection that there were signs of cultivation and instituted a surveillance of the property-

On May 26, 1977, Robinson and another deputy again went on the property and observed that there were several vehicles on the property. These vehicles were “parked” on the private logging road near the plots of marijuana. The officers proceeded to the area they knew to be cultivated, saw the defendants, and arrested all but one of them without a warrant. The other defendant was arrested the following day.

The record clearly establishes, we think, that the public was reasonably alerted that intrusion upon the land was banned by the owner.

The testimony and exhibits also confirm defendants’ assertion that none of the marijuana plants were visible from the public road or from the outside of the property.

In the several motions to suppress evidence, defendants allege that the warrant-less search and seizure violated both the Fourth Amendment to the United States Constitution and Article 1, Section 5 of the Louisiana Constitution of 1974.

Both lower courts found the present case distinguishable from State v. Fearn, La., 345 So.2d 468 (1977), in which this Court struck down a seizure of marijuana under somewhat similar circumstances. They also held that this warrantless search and seizure was permitted under the “open fields” doctrine enunciated by the United States Supreme Court in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). We disagree.

It is well established that the Fourth Amendment protects people, not simply places, against unreasonable searches and seizures. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Hines, La., 323 So.2d 449 (1975). The right protected is that of privacy, which has been described as “one of the unique values of our civilization.” McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The crucial question, then, in cases such as this, is whether or not there is a legitimate expectation of privacy. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); State v. Nine, La., 315 So.2d 667 (1975); State v. Hines, supra; State v. Fearn, supra.

In the present case, the marijuana was not visible from the public road. The posted signs announced that the logging road was private and prohibited entry of the land. A chain barred access to the private road, though it was down at' the time of the arrest and seizure. We conclude that, under these circumstances, the defendants had a legitimate expectation of privacy.

This Court’s decision in State v. Fearn, supra, is controlling here. There, the Court stated:

“The question here, as in State v. Nine, 315 So.2d 667 (La.1975), is whether the defendant’s justified expectation of privacy under the Fourth Amendment of the United States Constitution and under Article 1, § 5 of the Louisiana Constitution of 1974 was violated by the warrant-less seizure. The record reveals that the ditch where defendant was growing the plants was entirely upon the property belonging to defendant’s parents, whose property line extended beyond the far side of the ditch. Four to five foot weeds were growing in the ditch; six of the twelve plants, which were less than a foot high, were not visible except upon close inspection. The remaining plants, approximately thirty inches high, although visible among the weeds from the next door neighbor’s house, were not identified by the police except from the edge of defendant’s property line. The ditch where the plants were located was screened from view of defendant’s parents’ house by a shed and a fence around a swimming pool. Defendant apparently relied on the high weeds in the ditch (he had planted the marijuana in April) and the distance to the property line to preserve the privacy of his activities. Although this expectation was not fully justified (Mr. Penton testified that he could observe the plants from some distance) it was reasonable. The area of the ditch in which the plants were cultivated apparently could not be seen from the public street. Therefore, though in fact visible, the plants were located in a position on defendant’s parents’ property which could be reasonably expected to assure defendant’s privacy and were not openly displayed to public view.”

The State relies upon the decision of the United States Supreme Court in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), and Air Pollution Variance Bd. v. Western Alfalfa, 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974) applying what has been usually described as the open fields doctrine.

In our opinion, these cases are inapplicable here. Unlike the present case, there was no evidence in either of them that specific steps had been taken to exclude the public from the area searched.

The State also relies upon the “plain view” doctrine. The doctrine is that a law enforcement officer, who has a right to be where he is, may seize objects in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 564 (1971); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Hargiss, La., 288 So.2d 633 (1974).

In Harris v. United States, supra, the United States Supreme Court stated:

“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43, [10 L.Ed.2d 726, 743, 83 S.Ct. 1623] (1963); United States v. Lee, 274 U.S. 559, [71 L.Ed. 1202, 47 S.Ct. 746] (1927); Hester v. United States, 265 U.S. 57, [68 L.Ed. 898, 44 S.Ct. 445] (1924).”

The doctrine, of course, does not apply if the view is from a place that the officers have no right to be. In the present case, the officers observed the marijuana from a position on the property. The point of observation was a place that the officers had no right to be without a search warrant. Accordingly, we conclude that the plain view doctrine is inapplicable.

We hold that the motions to suppress are well-founded.

For the reasons assigned, the rulings of the district court are reversed, the motions to suppress are sustained, and the cases are remanded for further proceedings according to law and consistent with the views herein expressed.

      . The question of whether the property was legally posted in compliance with state law is not decisive, since the issue is one of expectation of privacy.

      . The author of this opinion dissented in State v. Fearn.


author: SUMMERS, Justice. TATE, Justice

text:
    STATE of Louisiana v. Leroy GIPSON, Jr.
    No. 61018.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      Jack & Jack, Wellborn Jack, Jr., Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

By a bill of information filed on March 10, 1977 Leroy Gipson, Jr., was charged in three counts with armed robbery alleged to have been committed on October 1, 1976. Count one charged the robbery of Steve Ely; count two, Charles Ely; and count three, Judy and Maggie Ely. After trial by jury Gipson was found guilty on all three counts and sentenced to thirty-three years imprisonment at hard labor without benefit of parole, probation or suspension of sentence on each count, the sentences to run concurrently. Seven assignments of error are urged on this appeal.

Assignment 1: In this assignment the defense complains of the denial of motions for new trial and in arrest of judgment. The motions are based upon the issues raised in the following assignments of error.

Assignment 2: On the day the case was set for trial the judge read the qualifications for service as a petit juror and called the roll of the petit jury venire. Of the 100 persons on the venire 28 reported present, 23 who were not present had been excused by the trial judge, 48 were reported “unable to serve” by the sheriff, and one failed to appear. Of those present five more were excused by the trial judge. The defense then filed a motion to quash the petit jury venire because the names of 23 out of 52 petit jurors had been removed from the venire before the case was called for trial. Excusing these veniremen is alleged to have occurred out of the presence of defense counsel and without making a record of the facts and reasons for excusing them. For this reason defendant asserts he had no opportunity to object, and the appellate court cannot review the action of the trial judge.

At a hearing held prior to trial, at the request of defense counsel, the trial judge referred by name to each of the 23 prospective jurors excused for what he considered good and sufficient reasons. In each instance he stated why he excused the petit jury veniremen, citing such matters as hardship, age, illness, absence, etc. When the recitation was complete, the trial judge noted defense counsel’s general objection to the reasons for excusing the veniremen and overruled the objections.

In brief before this Court the defense does not question the authority of the trial judge to excuse a member of the petit jury venire, contending only that the absence of a record of the facts and reasons for excusing them makes it impossible for the defendant or a reviewing court to question the trial judge’s discretion. Nor does the defendant set forth any specific objection questioning the validity of the reasons assigned by the trial judge for excusing the 23 jurors in question. Apparently, judging from the detailed reasons assigned by the trial judge, he did keep a record of the persons excused and the reasons for excusing them. A review of those reasons discloses no abuse of discretion and none has been pointed out.

To support its position that a record should be made of the facts and reasons for excusing members of the petit jury venire from jury service in this case, the defense points to Article 843 of the Code of Criminal Procedure, pertinently providing that:

“In felony cases . . the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.”

Excusing veniremen for cause by the trial judge is specifically authorized by Article 783 of the Code of Criminal Procedure. The article permits this action either on the initiative of the trial judge or on recommendation of an official or employee designated by the court. This action is not the type “proceeding” contemplated by Article 843. That article more properly contemplates a “proceeding” such as a formal hearing or trial, not an ex parte ministerial function which by its very nature occurs informally at times and places which do not lend themselves to the delays and formalities attending recordation of facts and reasons.

Moreover, the transcript convinces this Court that the trial judge must have made some record of the reasons for excusing members of the venire. No effort has been made to point out wherein those reasons exceeded the discretion reposed in the trial judge. This assignment is therefore without merit. See State v. Cass, 356 So.2d 936 (La.1977).

While defendant’s brief makes a similar contention with regard to the use of another petit jury venire from another section of the same court, the record contains no motion to quash that venire, and no reference to the pages of the record is furnished by the defense upon which this alleged error is based. Therefore, this contention cannot be considered. La.Code Crim.Pro. arts. 841, 845; La.Sup.Ct.Rules I, § 6(d) and VII, § 6.

Assignment 3: Prior to trial the defense filed a motion to suppress evidence of identification unnecessarily obtained by im-permissibly suggestive means. The motion alleged that defendant was a black male. While in custody following his arrest in this case he was exhibited in line-ups where he was the only bearded person. Because of this his identification at the line-up and subsequent in-court identification by the victims of the robbery is claimed to have been tainted by a line-up conducted by means and under circumstances conducive to irreparably suggestive identification. Testimony concerning identification in court was therefore inadmissible.

During the noon hour on October 1, 1976 two armed black men entered the Ely family grocery store and market in Shreveport. At gun point they forced the store owner Steven Ely, his wife Judy, his father Charles, his mother Maggie and the grocery boy Charles Middlebrooks to lie on the floor behind the counters. The robbers rifled the cash register, demanded money from the victims and departed. The police were summoned and obtained descriptions of the robbers from the victims.

An observer from across the street described the get-away automobile and gave the police its license number. With this information they learned from the car owner, that evening, that she had loaned the vehicle to the defendant. He was arrested that night and four days later was identified by the victims in the line-up.

Photographs of the line-up are in the record. All participants were black males, and only defendant had noticeable facial hair—a sparse mustache and goatee. The growth was not so abundant that it affected his facial conformation or features. No other distinguishing characteristics, save ordinary variations in size, are noticeable. All participants were similarly dressed. The victims who positively identified the defendant at the pretrial line-up also identified him at the trial. While the robbery was in progress they had ample opportunity to see him face to face at close range in a well-lighted grocery store at midday.

In addition to the fact that the lineup was not so suggestive that it led to mistaken identification, the in-court identification by the victims under the totality of the circumstances was well supported by independent sources. There was no denial of due process here. State v. Guillot, 353 So.2d 1005 (La.1977).

Assignment 4: A motion to quash the bill of information was filed by the defense on the ground that the arrest of defendant was without probable cause. As a result, it is contended, evidence of identification which followed was tainted by the illegality and should also be suppressed. In a pretrial hearing both motions were denied, and these rulings are assigned as error.

Defendant’s arrest came about as a result of a call received by the police reporting the grocery store robbery. The police were at the scene shortly thereafter, conducted a preliminary investigation and returned to the police station. Upon arrival there a man approached Officer Kinchen and reported that following the robbery he saw two men hurriedly drive off in a “deuce and a quarter” (Buick Electra 225) automobile parked in an alley across the street from the grocery. His description of the culprits matched that given by the victims. The informer also gave the car’s license number. Kinchen did not know the man and failed to ascertain his name. With the information then available, the police checked the registration of the Electra 225 and learned that it belonged to Dorothy Relliford. In conversations with Relliford that night they learned that she had loaned the car to defendant for the day. On the basis of this information defendant was arrested that night. Three days later he was placed in the line-up.

According to the defense, the information received by Officer Kinchen from the unidentified informant is not reasonably trustworthy information, and, therefore, the officers did not have reasonable cause to make the arrest.

Although in some instances an unidentified informant’s statements may not serve to establish reasonable cause to make an arrest, this is not such a case. In addition to seeing defendant and his confederate fleeing the site of the robbery, the informant was able to furnish descriptions of the two which matched descriptions furnished by the victims. A detailed description of the escape car, including its license number, was also reported. This salient information was conveyed to the police shortly after they returned from the scene of the robbery where the fact of armed robberies was established to their satisfaction by four witnesses, all victims. Within a few hours thereafter the police verified the ownership of the escape vehicle, and learned from the ov/ner that the car had been loaned to the defendant during the time the robbery occurred. These facts and circumstances should be considered in connection with the fact that this informant was not a confidential informant hired by the police, nor a professional tipster, but a concerned citizen. His report does not stand alone to establish probable cause.

Bolstered by these supporting facts and circumstances, the unidentified informant’s story became reliable and reasonably trustworthy, furnishing adequate grounds for the arrest and identification which followed. La.Code Crim.Pro. art. 213(3); State v. Linkletter, 345 So.2d 452 (La.1977).

Assignment 5: Defense counsel argues that the trial judge erred by instructing the jury, over defense objection, that it could return a verdict of guilty as to all three counts of the information. This objection is based upon the contention that to instruct the jury that a verdict of guilty could be returned on each count was to expose defendant to double jeopardy. It is argued that the evidence indicated that only one armed robbery with three victims resulted from the transaction at the grocery store, not three armed robberies.

Joinder of offenses is permitted by Article 493 of the Code of Criminal Procedure under these terms and conditions:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

The counts of the indictment satisfy the criteria set forth in the article in that the charges are of the “same or similar character”, are also “based on the same act or transaction”, and are “triable by the same mode of trial.” Now it must be decided whether multiple victims involved in the same transaction render this joinder of offenses prejudicial, subjecting defendant to double jeopardy?

Armed robbery is a theft of anything of value “from the person of another or which is in the immediate control of another” by use of force or intimidation, while armed with a dangerous weapon. La.Rev.Stat. 14:64. An essential element of the offense is theft from the person of another by force or intimidation. The law intends therefore to protect each person offended in that fashion, and each person offended in such a fashion is the victim of a separate crime. It is not double jeopardy therefore to charge or punish the robber for each person he subjects to this offensive conduct.

State v. McCarroll, 337 So.2d 475 (La.1976), involved a situation where the defendant entered a restaurant, brandished a weapon and warned that anyone who moved would be killed. As a consequence defendant was charged with nine counts of aggravated assault — one count for each victim present in the restaurant during the incident. He argued, as defendant does here, that only one assault with multiple victims was involved. We held there that the aggravated assault statutes were designed “to protect each citizen from the defined criminal conduct.” It is our view that the legislative intent was to afford the same protection to each person robbed from the criminal conduct set forth in the armed robbery statute. Joinder did not therefore result in double jeopardy, defendant’s contention is met and this assignment is without merit.

It is apt to observe here that the issue is more properly presented by the motion for severance authorized by Article 495.1 of the Code of Criminal Procedure. That article contemplates that such a motion should be filed before trial or during trial. It is contrary to that authority to delay a request for severance until all evidence has been presented and the charge to the jury has been prepared on that basis. At that stage of the trial any prejudice which may have resulted from the joinder is a matter accomplished, and severance could not cure the ill.

Assignment 6: Prior to the charge to the jury, defense counsel requested that the trial judge instruct the jury as follows:

“If it is peculiarly within the power of either the prosecution or the defense to produce a witness who could give material testimony on an issue in the case, failure to call that witness may give rise to an inference that his testimony would be unfavorable to that party. However, no such conclusion should be drawn by you with regard to a witness who is equally available to both parties, or where the witness’s testimony would be merely cumulative.
“The jury will always bear in mind that law never imposes on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.”

To support the request for this special charge the defense argues that Officer Hin-chen withheld the name and identity of the witness who observed defendant and his confederate fleeing the scene of the robbery. Failure of that witness to testify is said to have created a legal presumption that evidence under the control of the party and not produced by him was not produced because it would not have aided him.

Failure of the trial judge to give this special charge is claimed as error.

Both the State and the defendant have the right before argument to submit to the court special written charges for the jury. A requested special' charge shall be given by the court only if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge. La.Code Crim.Pro. art. 807.

The special charge requested by defendant is substantially contained within this portion of the charge the trial judge did give:

“A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption that evidence under the control of a party and not produced by him was not produced because it would not have aided him.”

As expressed by the trial judge, the charge he gave is an exact quotation from Section 432 of Title 15 of the Revised Statutes. It is a correct expression of the law on the subject. No error was committed by the failure of the trial judge to charge as requested by defendant.

Assignment 7: Defense counsel requested a special charge dealing with identification testimony, contending that it was approved by our decision in State v. Edge- combe, 275 So.2d 740 (La.1973), cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973). The correctness of the charge was not at issue in that case; the charge was quoted in a footnote to illustrate the fact that no prejudice resulted to defendant despite the fact that his pretrial identification was without the benefit of counsel.

A review of the general charge pertaining to credibility of witnesses, presumption of innocence and reasonable doubt establishes that the court sufficiently instructed the jury on the proper weight to be attached to the evidence and the standard of proof needed for a conviction.

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

DIXON, J., concurs.

DENNIS, J., concurs and points out that something of value was taken from each victim; thus a separate armed robbery was perpetrated upon each victim.

TATE, J., assigns additional concurring reasons.

TATE, Justice

(concurring).

With regard to Assignment 3 (the motion to suppress the identification), the totality of circumstances indicate that the victims identified the defendant independently of the lineup.

Normally, the inclusion of one bearded man alone (the defendant) in the lineup might be suggestive. Here, however, the initial post-crime description of the robber by the victims had included no reference to his sparse mustache and goatee.

Two of the other participants wore thin mustaches like the defendant’s. The defendant also argues that the star-shaped tatoo on his cheek impermissibly distinguished him from the other members of the lineup. But examination of the lineup photographs discloses that defendant’s tatoo was not visible to the witnesses.

Verbal description of the allegedly distinguishing characteristics presents an arguable case for treating this lineup as imper-missibly suggestive, but visual examination of the photographic record reveals that there were no noticeable distinguishing characteristics such as would render the lineup unfair.


author: PER CURIAM.

text:
    STATE of Louisiana v. Roland SMITH.
    No. 61039.
    Supreme Court of Louisiana.
    May 22, 1978.

      Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On November 21, 1974, the Orleans Parish Grand Jury indicted defendant Roland Smith for the crime of aggravated rape, a violation of La.R.S. 14:42. On May 4, 1976, he was tried before a twelve person jury and found guilty as charged. Thereafter, the trial court sentenced defendant .to death, a penalty then required by law for the crime of aggravated rape. On appeal, defendant urges two assignments of error.

We have reviewed defendant’s assignments of error and found them to be without merit. However, we note, ex proprio motu, under the authority of Louisiana Code of Criminal Procedure Article 920(2), that the death penalty imposed is illegal. Defendant was sentenced prior to the decision of Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), declaring Louisiana’s mandatory death sentence for aggravated rape Unconstitutional. In accordance with that decision, this Court has vacated death sentences in aggravated rape cases but, in the absence of other reversible error, remanded the cases to the trial court for resentencing of the accused to the most serious penalty provided for a lesser included offense at the time of the crime. State v. Volson, 352 So.2d 1293 (La.1977); State v. Noble, 342 So.2d 170 (La.1977); State v. Sledge, 340 So.2d 205 (La.1976).

At the time the present offense was committed (November 9, 1974), attempted aggravated rape was punishable by imprisonment at hard labor for not more than twenty years, while the crime of simple rape carried a penalty of imprisonment for not less than one nor more than twenty years. Therefore, the appropriate sentence in this case is imprisonment at hard labor for twenty years.

Accordingly, defendant’s conviction is affirmed, but his sentence is reversed and set aside. The case is remanded for resentenc-ing in accordance with law.

      . Four additional assignments of error were neither briefed not argued and are therefore considered to have been abandoned. State v. Russell, 352 So.2d 1289 (La.1977).


text:
    STATE of Louisiana v. Bertha THOMPSON.
    No. 61075.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

    Frank L. Koles, III, Ponder & Ponder, Amite, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., William M. Quin, Asst, Dist. Atty., for plaintiff-appellee.

       SUMMERS, J., would grant a rehearing.

   PER CURIAM.

Defendant, Bertha Thompson, was indicted for second degree murder. La.R.S. 14:30.1. After a trial by jury defendant was found guilty of manslaughter and sentenced to imprisonment at hard labor for twenty-one years. On appeal, defendant relies upon eleven assignments of error for reversal of her conviction and sentence.

We have reviewed the record and find no merit to defendant’s assignments of error. Accordingly, we affirm her conviction and sentence.

SUMMERS, J., concur.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Genese JONES, Appellant.
    No. 61079.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      Don H. Johnson, Johnson & Johnson, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.

       TATE and DENNIS, JJ., would grant a rehearing.

   TATE, Justice.

The defendant, Mrs. Jones, was convicted of second degree murder, La.R.S. 14:30.1 (1975), and sentenced to life imprisonment. Upon her appeal, she makes seventeen assignments of error. Of these, discussion is required only as to:

(1) The assignments relating to the appointment and action of a sanity commission (Nos. 1, 2, and 3), including a contention that the mental examination (thereby required) violates the accused’s constitutional rights against self-incrimination; and

(2) An assignment (No. 15) complaining of a restriction on the accused’s closing argument, by which her counsel was not permitted to argue for diminished responsibility (i. e., guilt of manslaughter rather than murder) by reason of a mental defect or condition short of the legal insanity which would exculpate her of any guilt whatsoever.

Both contentions present substantial issues of growing concern in other jurisdictions. However, on the basis of present Louisiana jurisprudence, we reject them and affirm the conviction.

Context Facts

The defendant was convicted of killing her husband. The evidence shows that she shot him with a pistol as the result of a family squabble. The testimony indicates that the spouses frequently quarrelled.

The defendant wife’s testimony tended to support a shooting in self-defense while struggling with her husband, and a housemaid’s testimony indicates she had been struck by the husband a short time earlier. Medical evidence, introduced in support of a plea of not guilty by reason of insanity, tended to prove that the lady was neurotic and subject to hysteria (by which she believed to be real what was only imagined). Her contention was that, because of this mental defect, she lacked the requisite specific intent to kill her husband.

Sanity Commission

The defendant had pleaded “not guilty by reason of insanity.” However, she objected to the trial court’s granting the state’s motion to appoint a sanity commission, Assignment 1. Her primary contention is that the sanity commission (at which her lawyer was not allowed to be present, despite request) unfairly afforded discovery to the state of her version of the accident, in violation of her constitutional rights against self-in-erimination.

In State v. Breaux, 337 So.2d 182 (La.1976), we held that a sanity commission examination is not a critical stage of the proceeding requiring the presence of counsel, if the court in its discretion does not afford such presence. We there noted, however, that no inculpatory statements made to the examiner are admissible in evidence at the merit-trial of the defendant’s guilt or innocence.

With regard to the self-incrimination issue, the courts have been in general agreement, although the view is subject to critical comment, that the privilege against self-incrimination does not apply against requiring the accused to participate in a sanity commission. Lafave and Scott, Criminal Law, Section 340, pp. 310-312 (1972). The reasoning is often grounded upon a limited waiver of the privilege, for the limited purposes of the sanity commission.

Accordingly, we find no abuse of the trial court’s discretion to order a sanity commission whenever the defendant pleads not guilty by reason of insanity. La.C.Cr.P. art. 650.

The defendant also contends that the trial court erred in its refusal to set guidelines for the sanity commission’s hearing and its report. The defendant’s counsel had alternatively requested such action, in order to protect her constitutional rights against self-incrimination. Assignment 2.

The trial court noted that the only guideline suggested to it was to allow her attorney to be present, a presence which the trial court was not required to allow. State v. Breaux, 337 So.2d 182 (1976). As the subsequent action of the trial court indicated, the trial court, if requested, would have ordered the examining physicians not to include in their report any statement of the accused relevant to innocence or guilt on the merits, and not to reveal any such statement to the prosecutor. In the absence of the denial of a reasonable limitation specifically requested by the accused, we are unable to ascribe reversible merit to the denial of a general motion to the court to set out special guidelines for the sanity commission’s examination and report.

Assignment 3 relates to the improper action of an examining physician in attaching a summary of the accused’s statements to his report, which was sent to the district attorney and not to the defendant’s counsel.

The trial court ordered this report removed from the record. It found no authority to quash the indictment by reason of this impropriety, the sole relief requested. We agree.

Further, the trial court found no showing made that the state had used the accused’s statements improperly furnished to it in order to obtain evidence or subvert her defense or to cross-examine her. In the absence of such prejudice, or in the absence of any showing of a consistent course of conduct by the state so to misuse sanity commissions, we do not believe appellate relief can be afforded the accused in this instance.

Restriction of Closing Argument on Diminished Responsibility

Assignment 15 relates to the trial court sustaining a state objection to the closing argument of defendant’s attorney. By this argument, the defendant’s counsel attempted to read to the jury La.R.S. 14:15, which provides that an intoxicated condition may preclude specific criminal intent.

The defendant had earlier withdrawn her plea of not guilty by reason of insanity. Nevertheless, her counsel was arguing that her neurotic, prone-to-hysteria mental condition precluded the specific intent required for murder, the intentional killing of another human being. In the context of this argument, counsel was attempting to analogize the intoxication legally precluding specific intent to the accused’s mental-hysteria (which, however, did not amount to legal .insanity) — the thrust of the argument being that this neurotic condition precluded specific intent, as would intoxication of a given degree, and so permitted the jury to return a responsive verdict of guilty of a lesser crime, such as manslaughter.

In effect, defendant’s counsel was arguing diminished responsibility or capacity to commit the crime by reason of a mental defect or disease, short of insanity, by reason of which there was the lack of a deliberate or premeditated design. See: Comment, Partial Insanity Affecting the Degree of a Crime, 22 La.L.Rev. 664 (1962); Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Col.L.Rev. 827 (1977); Comment, Diminished Capacity — Recent Decisions and an Analytical Approach, 30 Vand.L.Rev. 213 (1977). LaFave and Scott, Criminal Law, Sections 37, 42 (1972).

Louisiana is among the minority of eleven states that still reject the defense in all aspects. In Louisiana, a mental defect or disorder, short of legal insanity (i. e., the incapability to distinguish between right and wrong, La.R.S. 14:14), cannot serve to negate the specific intent and reduce the degree of the crime. State v. Johanson, 332 So.2d 270 (La.1976); State v. Berry, 324 So.2d 822 (La.1975); State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966).

We are not willing at this time to reconsider Louisiana’s jurisprudential rule. Nevertheless, we note the majority American view that evidence of such a mental condition, short of insanity, is relevant and admissible not as a defense against guilt of any criminal conduct but for the limited purpose of negating the premeditation or deliberation requisite to intentional murder. Scott and LaFave, Criminal Law, Section 42 (1972). As there stated, p. 325, “Under the better view, evidence of an abnormal mental condition, even though not sufficient to constitute legal insanity, is admissible wherever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense charged.”

The trial court’s ruling was therefore not erroneous, in so limiting argument.

Other Assignments

The remaining assignments do not present reversible merit:

Assignments 4 and 5 concern the state’s rather stubborn refusal to specify that it was charging the accused with second-degree murder under La.R.S. 14:30.1(1) (specific intent) and not also 30.1(2) (felony murder), as conjunctively charged, even though it had no intention of attempting to prove the latter; Assignments 6 and 7 concern the rather technical and doubtfully correct objections by the state as to two minor defense questions to the housemaid as to the husband’s mistreatment of the wife; but the maid’s testimony as a whole completely informed the jury of this witness’s appreciation of the marital disharmony in accord with the defense theory, and we cannot find reversible prejudice; Assignments 8, 9, 10, 11, and 12 represent correct rulings by the trial court as to particular questions; Assignment 13 concerns a complaint as to the prosecutor’s closing argument, which we find to be unfounded; and Assignments 14, 16, and 17 concern complaints as to the prosecutor’s objections during the defendant’s closing argument and the trial court’s failure to specify (the obvious) reasons for its rulings.

Decree

For the foregoing reasons, we affirm the conviction and sentence.

AFFIRMED.

      . The defendant withdrew her plea of not guilty by reason of insanity at the close of her evidence. She had also pleaded, “not guilty.”

      . Although we do not find reversible merit, we do not necessarily approve of the sincere and zealous prosecutor’s tactics in making repeated objections and arguments interrupting defendant’s closing argument. State v. Johnson, 343 So.2d 155 (1977). See Tr. 223-27. As the trial court finally noted, the prosecutor “may explain his contention to the jury when his time comes for rebuttal.” Tr. 227.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Billy J. LANDRY.
    No. 61087.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.

      J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   DIXON, Justice.

On December 7, 1973 at approximately 10:20 p.m. a man drove up to a fireworks stand in Scott, Louisiana. He forced the woman attendant, who was then six months pregnant, into his car at gunpoint and drove off to a small cabin-like house. There he raped her. The man then drove the victim back to Scott and released her. The defendant, Billy Landry, was arrested early the next morning. He was thereafter indicted for aggravated rape, tried before a jury and found guilty as charged. He was sentenced to serve twenty years imprisonment at hard labor. On appeal the defendant relies on five arguments on assignments of error for reversal.

Assignments of Error Nos. 1 and 2

Through these assignments the defendant contends that the State improperly used a statement made by the defendant after his arrest for impeachment purposes.

At trial Billy Landry testified in his own defense. According to his testimony, he left his work as manager of a mobile home business on the night of the offense at approximately 8:00 p.m. He went to a nearby store for groceries, then returned home and began preparing his supper. At around 9:00 p.m. he telephoned his wife, who was then living in New Iberia, and talked to her for approximately one hour. He then went to his employer’s room and asked him if he wanted to share the supper he had prepared. The employer told the defendant that he had already eaten so the defendant again returned to his room. He changed shoes and jogged approximately two miles to the Anchor Lounge, arriving at approximately 10:15 p.m. He stated that he had two drinks at the lounge before he jogged back home and went to bed.

On cross-examination the prosecuting attorney attempted to impeach defendant’s credibility through use of inconsistent statements made by the defendant to a police officer at the time of the arrest.

Defendant first argues that the State violated the mandate of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), by asking the defendant: “You didn’t tell him (Deputy Barnett) about the Anchor Lounge. Is that correct?”

Defendant’s reliance on Doyle v. Ohio, supra, is misplaced. In that case defendants Doyle and Wood were arrested for selling marijuana to an undercover agent. They were advised of their Miranda rights and apparently invoked those rights after the arrest. At trial the defendants offered an exculpatory version of the events which led to their arrests. In an attempt to impeach their credibility at trial, the prosecutor asked them why they had not offered their explanation to the police officer at the time of the arrest. The United States Supreme Court reversed their convictions, holding:

“. . . the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. ...” 426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d at 98.

In the present case the prosecutor was not making use of the defendant’s silence after arrest. After the defendant was arrested he was advised of his rights, but he chose not to exercise them. Instead, he gave Deputy Barnett a version of his actions on the night of the offense which was inconsistent with that offered at trial. Specifically, according to Barnett’s notes, defendant stated that he snacked for supper then retired shortly after 10:00 p. m.— the time at which he testified that he was jogging to the Anchor Lounge and having a couple of drinks.

The prosecutor’s question at trial was a proper inquiry into the inconsistency - between his statements. In addition, the question was proper cross-examination, because on direct examination defense counsel propounded the identical question, and the defendant responded that he had told Deputy Barnett about the trip to Anchor Lounge. The State, armed with Barnett’s notes on the defendant’s statement, had the right to question this assertion.

Defendant next argues that the trial court erred in allowing the State, on rebuttal, to introduce for impeachment purposes testimony of Barnett about defendant’s oral statement. Defendant argued that only the contradictory portion of the statement should be admitted.

The State sought to show that defendant did not mention going to the Anchor Lounge in the statement he gave to Barnett after his arrest. This could have been proved by direct questions to Barnett, or, as the State chose, by having Barnett relate the contents of the brief statement given by defendant, describing his actions of the evening. To the extent that the statement purported to account for defendant’s actions of the entire evening, it contradicted his trial testimony.

These assignments are without merit.

Assignment of Error No. 3

Defendant contends that the trial court erred in overruling his objections to certain questions asked by the prosecutor during the cross-examination of a defense witness. The witness was the employer of the defendant and the owner of the car allegedly used by the defendant in the perpetration of the offense. The witness testified that on the night of the rape he had gone to the Tonga Isle Lounge with a friend for a few beers, returning home shortly before 10:00 p. m. He stated that he did not hear his car start after he returned home and that it did not appear to have been moved from the time he arrived home until he was awakened by the investigating officers. On cross-examination the State, in an attempt to attack the credibility of the witness, asked the following questions:

“Q. . . Do you drink?
A. Yes sir.
Q. Drink what, whiskey, beer?
A. Beer.
Q. Beer, been drinking all your life?
A. Yea.
Q. Yea, okay, what kind of drinker are you?
A. I would say moderate.
Q. Moderate?
A. Yea.
Q. Okay, you drink 6, 7, 8 beers every day?
A. No, no.
Q. Do you drink 6 or 7 beers at a time though?
A. Uh, on occasion, yea.
Q. Do you drink 6 or 7 beers on occasions?
A. Yes sir.
Q. How old are you now, 60?
A. Yes sir.
Q. How long have you been drinking, since you’re how old?
A. 20, 21, or 22.
Q. So about 40 years.
A. Yea.
Q. Okay, during that period of time, have you drunk to excess on many occasions?
A. On some occasions.
Q. Some occasions, okay, now the night you went to Tonga Isle Lounge, that’s by Duson, right? About 7 (seven) or 8 (eight) miles away from your home?
A. Yes sir.
Q. That’s the place that has go-go girls in it and things like that?
A. No.
Q. No, did you drink that night sir?
A. Yes sir.
Q. How many beers did you drink?
A. Oh—
Q. Was it beer you were drinking?
A. Yes sir.
Q. How many beers did you drink that night?
A. About 4 (four) or 5 (five).
Q. Could it have been 6 (six) or 7 (seven)?
A. I don’t think so, because I don’t drink fast and I wasn’t, I don’t think it could have been more than 4 or 5.
Q. But is is (sic) possible.
Q. But it’s possible?
A. Yes sir.
Q. Possible it could of been 6 (six) or 7 (seven)?
A. Yes sir.
Q. How many beers did you drink, how long did it take you to drink them, 15 minutes?
A. Oh, no, about a half hour.”

Defendant argues that the examination was improper under R.S. 15:490 and 491 in that it constituted an attack on the general credibility of the witness through particular acts and vices.

R.S. 15:490 and 491 provide, respectively: “The credibility of a witness may be attacked generally, by showing that his general reputation for truth or for moral character is bad, or it may be attacked only in so far as his credibility in the case on trial is concerned.”
“When the general credibility is attacked, the inquiry must be limited to general reputation, and can not go into particular acts, vices or courses of conduct.”

These articles proscribe the use of evidence of specific acts or vices to impeach the general credibility of a witness and limit the inquiry to proof of general reputation. They do not, however, prevent the introduction of evidence bearing on the witness’ ability to perceive or witness that which he is testifying about. In State v. Luckett, 327 So.2d 365 (La.1976), we stated on rehearing:

“. . . defects of capacity, sensory or mental, which would lessen the ability to perceive the facts which the witness purports to have observed, are provable to attack the credibility of the witness, either upon cross-examination or producing other witnesses to prove the defect. Clearly, a defect in capacity may result from the use of drugs or alcohol. Whether a witness was intoxicated, by use of drugs or alcohol, on the occasion respecting which he is called upon to testify goes to his credibility and weight of his evidence and not to his competency. . .” 327 So.2d at 372.

See also McCormick on Evidence, § 45 at p. 94 (Cleary Ed.1972); 3A Wigmore, Evidence, §§ 931, 933 (Chadbourn rev. 1970); Pugh and McClelland, Work of Appellate Courts, Evidence, 37 La.L.Rev. 585 (1977); Comment, Impeachment, 21 Loy.L.Rev. 346 (1975).

The witness was properly interrogated as to the amount of alcohol he had consumed on the night of the offense and the effect it had upon him.

Evidence of habitual intemperance, however, should not be admissible because, in most cases, it bears little relevance to the credibility of the witness and falls within the proscription of R.S. 15:491 against impeachment of the general credibility through particular acts and vices. This rule has been adopted by the majority of jurisdictions. McCormick, supra; Wigmore, supra; see Annot. 8 A.L.R.3d 749 for a compilation of jurisdictions accepting and rejecting this rule. The defendant argues that the State’s cross-examination violated this rule while the State argues that all of the questions were directed toward the witness’ capacity to perceive on the night of the offense.

A reading of the transcript leads us to conclude that the State went beyond evidence relating to the witness’ capacity on the evening of the offense and entered the prohibited field of impeachment of the general credibility through particular acts and vices. R.S. 15:491. The error does not, however, require a reversal of the conviction. The witness’ responses to the State’s questions did not indicate his habitual intemperance but rather showed only that he was a moderate drinker. No prejudice could have resulted from this limited inquiry. C.Cr.P. 921; State v. James, 305 So.2d 514 (La.1974).

This assignment is without merit.

Assignment of Error No. 5

In this assignment the defendant contends that the trial court erred in allowing the State to elicit opinion evidence from a witness not qualified as an expert and evidence of a witness’ impressions, both in contravention of R.S. 15:463. The objection occurred during the redirect examination of one of the investigating officers, Deputy Boutte. The prosecutor asked Boutte why he did not try to lift fingerprints from certain objects during his investigation and why his investigation was terminated after the defendant was arrested.

While the questions might have been calculated to elicit opinion evidence, they were admissible; they were asked in response to similar questions posed by defense counsel on cross-examination. The defendant now complains of evidence introduced in response to issues raised by the defense.

This assignment is without merit.

Assignment of Error No. 6

In the presentation of his case, the defendant called a local attorney as a character witness for the defendant. The following occurred:

“Q. Have you had occasion in force of your activities have you had occasion to uh hear conversations of people talk about Mr. Landry, to know what other people think of Mr. Landry?
A. Yes, I have.
Q. As a result of what you have heard the citizens of the community in which you reside and to which you reside speak about Mr. Landry, have you gained knowledge of what his reputation is for being a law-abiding, honest, person and a truthful person?
A. I would say that I have.
Q. Would you inform the ladies and gentlemen of the jury what is Mr. Landry’s reputation for being an honest and truthful person and for being a peaceful and law-abiding person?
A. I would say that he enjoys such a reputation in the community.
Q. Now, well, you believe Mr. Landry under oath?”

The State’s objection to the last question was sustained by the trial court. The defendant assigns this ruling as error, arguing that his examination of the witness was improperly restricted.

R.S. 15:479 and 480 provide the following rules governing the admissibility of character evidence:

“Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.” R.S. 15:479.
“Evidence of the good character of accused is always admissible in his behalf, and must be considered in connection with and as a part of the whole testimony and due weight be given it, but it can not destroy conclusive evidence of guilt; and such evidence must be restricted to showing character as to such moral qualities as have pertinence to the crime with which he is charged.” R.S. 15:480. (Emphasis added).

The question posed by defense counsel went beyond the scope of permissible character evidence, in that it was referred to moral qualities which had no relation to the offense with which the defendant was charged.

The question about the believability of the defendant was designed to be corroborative and corroborative testimony can be introduced only after credibility of the witness has been attacked. R.S. 15:484, 485. While the question would have been permissible for impeachment purposes (R.S. 15:490, 491; State v. Frentz, 354 So.2d 1007 (La.1978); State v. Muse, 319 So.2d 920 (La.1975)) it was properly excluded by the trial court as improper character evidence as used in the present case.

Assignment of Error No. 7

Defendant contends in this assignment that the trial court erred “in permitting the prosecution to propound multiple leading questions and in permitting the introduction of a large volume of hearsay evidence and in . refusing to rule on defense objections . . . ”

We have examined the record, particularly those parts designated by the defendant, and find no reversible error. Accordingly, this assignment is without merit.

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


text:
    STATE of Louisiana, Appellee, v. Glendell SHOWERS, Appellant.
    No. 61114.
    Supreme Court of Louisiana.
    May 22, 1978.

      John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was charged in a single (bill of) information with three armed robberies and one attempted armed robbery. After trial by jury, he was convicted and sentenced to seventy-years at hard labor, the sentences on each count to run concurrently.

Of the seven assignments of error made for the defendant’s appeal, Assignment No. 1 possesses reversible merit. This involves the joinder for indictment and trial of our entirely unrelated robbery incidents, and the denial of a fair trial to the defendant resulting from the undue prejudice thereby sustained by him in eroding his constitutional presumption of innocence with respect to each single charge.

(1)

The assignment concerns the denial of the defendant’s motion to sever the four counts. The motion is based on La.C.Cr.P. art. 495.1 (1975). This enactment requires the court upon application of a party to sever the trial of the offenses “whenever . it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.”

At the hearing on the motion, the defendant argued that the joinder of all four incidents in one trial “would severely prejudice the defendant’s right to a fair trial, if he has to face a trial on all four counts with different victims and different days” and that the state was “simply trying to overwhelm the defendant with multiple counts in one information.”

(2)

The four entirely disconnected incidents of robbery or attempted robbery were joined under the new joinder provision of La.C.Cr.P. art. 493 (1975) that two or more offenses may be charged in the same indictment if they “are of the same or similar character.” In State v. Carter, 352 So.2d 607, 614 (rehearing denied, December 14, 1977), after full discussion, we held that “when offenses, which have been joined solely because they are the same or similar character offenses, are not legitimate ‘other crimes’ under Prieur and its progeny, .they should normally be severed upon pre-trial motion of the accused or the state.”

Traditionally, the state cannot introduce evidence that the defendant has committed unrelated other crimes in order to infer his guilt of the present crime with which charged because he is a bad man. However, La.R.S. 15:445, 446, permit the introduction into evidence of independent other crimes for limited purposes.

In State v. Prieur, 277 So.2d 126 (La.1970), we set forth guidelines for this exceptionally-permitted evidence of extraneous offenses, for limited purposes. By the guidelines, we intended to assure that use of other-crime evidence is limited to the narrow purposes for which authorized and that such evidence of unrelated other crimes will not prejudice an accused of a fair determination of his guilt or innocence of the only crime with which he is presently charged.

In Carter, cited above, we held that, for the same reasons that evidence of extraneous offenses is inadmissible under Prieur, a denial of severance of the trial of unrelated crimes would deny an accused a fair trial as to his innocence or guilt of each of the separate offenses charged. We stated, 352 So.2d 613, “the evidence as to all crimes charged tends to cumulate to prove each, thus prejudicing the defendant in his right to a separate determination of his guilt or innocence on each charge.”

(3)

The state argues that the four robbery incidents were admissible under Prieur, because the defendant employed the same method and plan of operation (i. e., system) in each of the robberies.

In the four incidents, in a period of six days, the defendant is charged with having robbed four Time Saver Convenience stores at night, three of them in the uptown area of New Orleans and one at New Orleans East. A witness from each incident identified the defendant as having been one of two men who entered the respective stores, the defendant being armed with a shotgun. In three instances, the robbery was completed, but in the fourth the defendant and his accomplice were arrested by policemen while in the course of the robbery.

The defendant did not introduce any evidence.

(4)

In State v. Jackson, 352 So.2d 195 (La.1977), we summarized the jurisprudence permitting, in limited instances, the introduction of other-crime evidence to prove “system” or modus operandi. Paraphrasing our summary, we stated:

It is true that this court has held to be admissible, for limited purposes, proof of other crimes exhibiting almost the identical modus operandi or system, committed in close proximity in time and place. State v. Jones, 332 So.2d 466 (La.1976) (a pre-Prieur trial); State v. Price, 325 So.2d 780 (La.1976); State v. Vince, 305 So.2d 916 (La.1974); State v. Lawrence, 294 So.2d 476 (La.1974).

However, as the jurisprudence has clarified, the other crime must be distinctively similar in system, State v. Slayton, 338 So.2d 694 (La.1976); State v. Waddles, 336 So.2d 810 (La.1976); State v. Hicks, 301 So.2d 357 (La.1974)—i. e., “so peculiarly distinctive that one must logically say that they [the two crimes] are the work of the same person,” State v. Lee, 340 So.2d 1339, 1345 (concurring opinion of Mr. Justice Dennis) (La.1976). Furthermore, the proof of the other crime as part of the system must be relevant to prove a fact of consequence to the accused’s present innocence or guilt (not including the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one). State v. Ledet, 345 So.2d 474 (La.1977); State v. Frederick, 340 So.2d 1353 (La.1976); State v. Gaines, 340 So.2d 1294 (La.1977); State v. Hicks, 301 So.2d 357 (La.1974); State v. Harrison, 291 So.2d 782 (La.1974).

Of course, as the cited decisions emphasize, not only must the other-crime evidence first be found relevant to a material fact actually at issue, but its probative value must outweigh its prejudicial effect. See State v. Ledet, 345 So.2d 474 (La.1977). In emphasizing the limited purposes for which other-crime evidence may be used, and the limitations upon its use even for such purposes, Ledet summarizes the governing values in the exercise of the trial judge’s limited discretion to admit it, 345 So.2d 478:

“ * * * Because of the substantial risk that the extraneous evidence may detract from the constitutional right to be presumed innocent until proven guilty beyond a reasonable doubt of the crime charged, other crimes can only be admitted after a ‘showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad behavior, and that it serves the actual purposes for which offered.’ ”

(5)

Under these principles, the evidence of each of the four crimes would be inadmissible to prove guilt of any of other of them. This is so, because:

In the first place, even if proof of system was relevant to any issue of the prosecution, these armed robberies are not so peculiarly distinctive in method as to indicate they were the work of one person.

More important, however, proof of system was not relevant to any arguable factual issue of consequence to the determination of the accused’s present innocence or guilt of any of the crimes charged. At most, if accepted, the cumulated evidence simply proves that the accused committed four entirely unrelated crimes. The evidence of the other crimes did not tend to prove any fact of consequence in the determination of guilt of any particular crime, aside from the inadmissible purpose of inferring that the accused had committed all four crimes because he had undoubtedly committed one, e. g., the last offense for which arrested at the scene or more of them.

In the present case, in each instance, the witnesses identified the accused without reservation as the offender. If their unde-nied testimony is accepted as truthful, the identity of the accused as being the offender in each instance is not an arguable fact of consequence at actual issue, since the accused did not attempt to show mistaken identity. Considering the other-crime evidence in connection with the testimony of each witness as to a particular crime, its effect is not to prove the accused’s identity for a purpose relevant to any disputed fact of consequence at arguable issue; the effect of its introduction is rather, inadmissi-bly, only to tend to prove that the testimony of each victim is correct because, if the defendant committed the other crimes, he may have committed the present one and thus that each victim is testifying truthfully-

As emphasized earlier, the state is not permitted to prove that an accused committed the crime charged simply because he is a bad man who had committed similar crimes on other occasions. The proof of the other crimes is thus not admissible to prove guilt of a crime charged, under traditional principles of fairness and in view of the constitutional presumption of an accused’s innocence of the offense with which he is charged. This presumption constitutionally can only be overcome by the state’s proof beyond a reasonable doubt that the accused had committed that crime.

Decisions in which system evidence was admissible to prove identity are distinguishable. In State v. Mitchell, 356 So.2d 974 (La.1978) (1978), identity was held to be an arguable factual issue of consequence because of defense alibi evidence suggesting that another person had committed the crimes. In State v. Ballard, 351 So.2d 484 (La.1977), the victim testified that his robber partially hid his face with a handkerchief, and the identification was therefore subject to strong attack. In State v. Vince, 305 So.2d 916 (La.1974) the court merely observed that “identification of the defendant was a serious issue.” 305 So.2d at 922. While not clear from the discussion, presumably the nature of the evidentiary clash put at issue the identity of the perpetrator of an admitted offense.

Conclusion

The denial of the motion to sever the trail of the four offenses deprived the defendant of a fair trial as to his innocence or guilt of each of them. Proof of other crimes is improper and prejudicial, when its chief probative effect is only to prove the ultimate issue of the accused’s guilt of one crime solely because the accused had on other occasions committed similar crimes.

In this case, the chief effect of cumulat-ing in one trial evidence of the defendant’s alleged participation in each of them was, by this cumulation, to tend to prove he is a bad man and thus to deprive him of his constitutional presumption of innocence of each crime until the state proves the contrary by proof beyond a reasonable doubt.

Accordingly, we must reverse the convictions and sentences, and remand this case for new trial in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. James LOZAN.
    No. 61118.
    Supreme Court of Louisiana.
    May 22, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, Indigent Defender Bd., 24th Judicial District, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Jacob J. Amato, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice.

James Lozan was charged by bill of information with the crime of armed robbery in violation of La.R.S. 14:64. Defendant waived trial by jury and elected to be tried by the court. After trial, the judge found him guilty as charged and sentenced him to serve six years at hard labor with credit given toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in not suppressing an out-of-court identification of him made by a prospective state witness, Jolinda McPherson. He argues that the one-on-one identification made outside the police station by Ms. McPherson shortly after the commission of the crime was impermissibly suggestive.

Prior to trial, defendant moved to suppress identifications made by three prospective state witnesses. At the suppression hearing, the following facts were revealed. At approximately 4 o’clock one afternoon, an employee at the American Finance Corporation office, John E. Kelley, was robbed at gunpoint by a black male. Present in the office at the time was another employee, Rosemary Pitre. As the perpetrator of the crime departed from the office, he brushed past Jolinda McPherson, who was entering the office, and fled in a red late model vehicle driven by another male. As a result of descriptions of the robber and the vehicle furnished to the police by witnesses to the robbery, defendant was later stopped by police officers and informed that he and his vehicle fit the descriptions given by the witnesses. However, defendant was not placed under arrest at this time. Expressing his desire to clear himself of any involvement in the crime, defendant agreed to accompany the officers to the American Finance Corporation office so that he could be viewed by the witnesses to the crime. However, upon their arrival at the finance office, the officers and defendant discovered that the witnesses were no longer there. Being advised that Jolinda McPherson, one of the witnesses, would be at the police station, they proceeded to the station. Defendant and an officer were standing on the front steps of the station, an area well lighted, talking, when Ms. McPherson arrived at approximately 7:00 p. m., within three hours after the commission of the crime. After indicating her unwillingness to go into the police station, she identified defendant from a police vehicle parked across the street (about thirty to thirty-five feet) from where defendant was standing. Approximately one week later, Ms. McPherson, together with Mr. Kelley and Mrs. Pi-tre, attended a lineup at which they all made identifications of defendant. At the conclusion of the suppression hearing, the trial judge denied defendant’s motion to suppress identifications made of him.

At trial, Mr. Kelley and Mrs. Pitre testified and made positive identifications of defendant as the perpetrator of the armed robbery. Ms. McPherson did not testify at trial nor was any evidence adduced relative to her one-on-one identification of defendant.

Assuming, without deciding, that the one-on-one confrontation between defendant and Ms. McPherson was impermis-sibly suggestive, defendant’s contention raised under this assignment of error is of no moment since Ms. McPherson did not testify at trial and no evidence concerning this identification was introduced at trial. See State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977). Hence, the result was the same as if the trial judge had granted defendant’s motion to suppress the one-on-one identification made by Ms. McPherson. Under the circumstances, we find no merit to Assignment of Error No. 1.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion to suppress the pre-indictment lineup identifications made by John E. Kelley, Rosemary Pitre and Jolinda McPherson grounded on the claim that he was not afforded counsel at the pre-indictment lineup.

In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that an accused is entitled to counsel at a lineup when adversary proceedings are initiated “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Applying the holding in Kirby, this court has consistently held that the presence of an attorney is not required at lineups held prior to the filing of bills of information or indictments. State v. Spears, 350 So.2d 603 (La.1977); State v. Rudolph, 332 So.2d 806 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976); State v. Nero, 319 So.2d 303 (La.1975); State v. Lawrence, 294 So.2d 476 (La.1974). Moreover, we have specifically held that a defendant is not entitled to counsel at a pre-indictment lineup under La.Const. art. I, § 13 (1974) since a pre-indictment lineup is not a “stage of the proceedings” at which a defendant is entitled to counsel. La.Const. art. I, § 15 (1974); La.Code Crim.P. art. 382; State v. Johnson, 327 So.2d 388 (La.1976). Hence, the trial judge did not err in denying defendant’s motion to suppress the pre-indictment lineup identifications grounded on this claim.

Assignment of Error No. 2 lacks merit.

DECREE

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

      . In this appeal, defendant attacks only the one-on-one identification made by Ms. McPherson on the ground of suggestiveness. Under this assignment of error, no claim of infirmity is asserted as to the subsequent lineup identifications made by Ms. McPherson, John E. Kelley and Rosemary Pitre or as to the in-court identifications made by the latter two.