author: SUMMERS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Quinton BLACKSTONE.
    No. 59082.
    Supreme Court of Louisiana.
    June 20, 1977.
    Fred C. Jackson, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

A grand jury indictment dated April 21, 1976 charged that on December 7, 1975 Quinton Blackstone violated Article 110(A)1 of the Criminal Code when he escaped from the Louisiana State Penitentiary. Defendant waived trial by jury, was found guilty as charged in a bench trial, and received a consecutive sentence to serve five years at hard labor.

In the only assignment of error urged on this appeal, defendant asserts that there is insufficient evidence to justify a verdict of guilty of simple escape. In brief the contention is that there was a total lack of evidence to sustain the conviction.

No motion for a directed verdict of acquittal or motion for a new trial appears of record to properly present the issue which defendant urges. In criminal matters, the scope of this Court’s appellate jurisdiction extends only to questions of law. La.Const. art. V, § 5(C) (1974). A contention that the verdict was based on insufficient evidence is essentially a question of fact. Only where defendant has moved for a judgment of acquittal in a trial before a judge alone (La.Code Crim.Pro. art. 778), or for a new trial (La.Code Crim.Pro. art. 851) based upon the contention that there is no evidence at all of an essential element of the crime charged, is a question of law presented which this Court can review. State v. Reeves, 342 So.2d 605 (La.1977); State v. Alexander, 339 So.2d 818 (La.1976); State v. Jack, 332 So.2d 464 (La.1976); State v. Jones, 303 So.2d 486 (La.1974); State v. Douglas, 278 So.2d 485 (La.1973).

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

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs for the reasons stated by CALOGERO, J.

DIXON, J., concurs.

CALOGERO, Justice,

concurring.

Defendant Blackstone complains in his single assignment of error that “Where there is total lack of evidence of the offense charged or any essential element thereof, thus presenting a question of law, i. e., legality of conviction, the Supreme Court is authorized and has in fact reviewed the evidence if properly made a part of the record.” This assignment is rooted in the contention, which I believe to be correct, that there was no evidence that this inmate, who was found in the visitor's room of the compound, on the grounds of the penitentiary, committed the crime of simple escape. However, defense counsel has not properly raised the issue for appellate review. He did not move for acquittal, nor did he make a motion for new trial on the basis that there was no evidence presented of an essential element of the crime charged, i. e. that the prisoner intentionally departed from lawful custody. The contention that there was no evidence of the offense charged does not present an error patent on the face of the record. Therefore, there has been raised no question of law which this Court can review on appeal.

However, it should be noticed that this petitioner still has available relief through application for writ of habeas corpus, either on the ground that his right to effective counsel was denied him (as evidenced by his counsel’s failure to make those motions which would have preserved this meritorious issue for review on appeal) or that his right to due process of law was violated (on the basis that he has been given a five-year sentence — the maximum — for committing a crime that the record reveals that he did not commit, although he may have attempted to commit it).

For these reasons, I concur in the majority opinion.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Joseph B. SERIGNE.
    No. 59087.
    Supreme Court of Louisiana.
    June 20, 1977.

      Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Joseph B. Serigne was charged by bill of information with attempted second degree murder in violation of La.R.S. 14:27 (La. R.S. 14:30.1). After trial by jury, defendant was found guilty as charged and was sentenced to serve ten years at hard labor with credit given toward service of sentence for time spent in custody prior to imposition of sentence. Defendant appeals from his conviction and sentence.

Defendant filed two assignments of error with the trial court as grounds for reversal of his conviction and sentence. However, in brief to this court, defendant has expressly abandoned these two assignments of error. Instead, he urges review of the entire record for errors that are discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920(2). We have scrutinized the record for such errors and have found none.

DECREE

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


text:
    STATE of Louisiana v. Donald Ray ADAMS.
    No. 59093.
    Supreme Court of Louisiana.
    June 20, 1977.

      Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Donald Ray Adams was charged by bill of information with aggravated arson in violation of La.R.S. 14:51. After trial by jury, defendant was found guilty as charged and was sentenced to serve ten years at hard labor with credit given toward service of sentence for time spent in custody prior to imposition of sentence. Defendant designated nine errors to be urged on appeal in his assignment of errors filed in the trial court. Since he has neither briefed nor argued Assignments of Error Nos. 2, 3, 4, 5, 6, 7 and 9, we consider them to have been abandoned. Accordingly, only Assignments of Error Nos. 1 and 8 remain for our consideration in this appeal. We find it more appropriate to review them in reverse order.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in denying the motion for continuance filed on the day of trial. He argues that the state’s failure to furnish responses to his motion for a bill of particulars and to supply a transcript of taped statements made by him while under interrogation as well as a copy of the State Fire Marshal’s report as requested in his prayer for oyer made it impossible for him to properly prepare his defense. The state denies that its failure to furnish these responses and documents prejudiced his defense in view of the fact that the information requested by defendant in his motion for a bill of particulars was revealed to him at the preliminary examination and that a complete transcript of the statements was furnished to him on the day of trial prior to its commencement.

At the preliminary examination which was held on October 31, 1975, Martin N. Fritcher, the district supervisor for the State Fire Marshal, testified that he conducted the investigation of a fire which occurred on June 4, 1975, at approximately 4:46 a. m. and which destroyed a building occupied at the time by Frank Spurred and owned by Mac Johnson. Investigation as to the cause of the blaze revealed that it resulted from someone setting fire to a mattress stored in the building with a match. Fritcher further testified that because defendant, an employee of the owner of the building, had been observed by firemen at the scene of the fire when they arrived, he was subpoenaed by the State Fire Marshal’s Office for questioning that same morning as a possible witness. During the course of the interrogation, defendant made three statements which were recorded on tape. Two of these statements were exculpatory in nature but in the last statement defendant confessed that he had set fire to the building to get even with its owner with whom he was having a dispute over his wages. Defendant was then arrested. At the conclusion of Deputy Fritcher’s testimony, defendant made an oral prayer for oyer seeking production of the transcript of these statements which prayer was granted by the trial judge. Although the state agreed to furnish a copy of the transcript to defense counsel, no such copy was provided at that time.

Subsequent to the preliminary examination, defendant was granted two continuances, one to permit his newly-appointed counsel additional time with which to confer with him and the other to avoid a conflict in his counsel’s trial schedule. Trial was scheduled to commence on June 10, 1976. On May 20, 1976, defendant filed a motion for a bill of particulars in which he sought information as to the time of the fire, its cause, the time of his arrest, the names of the arresting officers, the name of any occupant of the building, and information as to the contents of the State Fire Marshal’s report. On the same day, defendant also filed a prayer for oyer in which he again requested a transcript of any inculpa-tory statement, written or taped, made by him to state officers and a copy of the State Fire Marshal’s report. Although orders to furnish these answers and documents were signed by the trial judge, the orders were in the alternative to show cause why the responses and documents should not be provided if the state elected to resist their production. The dates for production of the responses and documents or alternatively to show cause why they should not be furnished were left blank in the orders. No answers or documents were furnished by the state. On the day of trial (June 10), defendant moved for a continuance asserting that the state’s failure to produce the requested information prejudiced his defense. The motion was denied by the trial judge. Immediately thereafter, defendant was furnished by the state with a copy of the taped statements.

La.Code Crim.P. art. 712 provides:

A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.

It is well settled that the granting or refusal of a motion for a continuance rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Bennett, 341 So.2d 847 (La.1976); State v. Jarrow, 331 So.2d 1 (La.1976); State v. Sosa, 328 So.2d 889 (La.1976).

The function of a bill of particulars is to inform the defendant more specifically of the nature and cause of the charge against him. La.Code Crim.P. art. 484; State v. O’Blanc, 346 So.2d 686 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Monk, 315 So.2d 727 (La.1975). In the present case, the facts sought to be discovered by defendant in his motion for a bill of particulars were revealed to him at the preliminary examination. The chief investigator in the case, Deputy Fritcher, testified as to the events surrounding the fire and defendant’s arrest and was subject to cross-examination by defendant. Moreover, the transcript of the preliminary examination held on October 31, 1975 was filed in the record on January 27, 1976 (some four months before trial). In light of the facts recited in the bill of information which charged defendant with aggravated arson and those testified to at the preliminary examination, defendant was adequately informed of the nature and cause of the charge against him. Therefore, he was not prejudiced in his defense by the state’s failure to answer his motion for a bill of particulars. We find no abuse of discretion by the trial judge in denying defendant’s motion for continuance on this ground.

With respect to defendant’s prayer for oyer, although he was not furnished with a transcript of the statements until the morning of trial, defendant had made no showing that the delay prejudiced his defense. Moreover, in spite of the fact that defendant was aware that the state possessed the taped statements as early as the date of the preliminary examination (October 31, 1975), he took no steps to suppress or to compel production of them until he filed his prayer for oyer on May 20, 1976. In light of these circumstances, we find no abuse of discretion in the trial judge’s denial of defendant’s motion for continuance on this ground.

In sum, Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to suppress and admitting in evidence statements made by him while under interrogation on the ground that they were not freely and voluntarily made. He argues that the statements were not free and voluntary since he was induced to make them by promises of medical treatment and leniency on pending charges if he cooperated and since he was intoxicated during the period in which he was under interrogation.

On the day of trial, defendant filed a motion to suppress three statements made by him during an interrogation conducted by state fire officials and police officers on the day that the crime was committed. The trial judge referred the motion to the merits. During the trial, outside of the presence of the jury, a suppression hearing was conducted. The state offered the testimony of Deputy Fritcher as to what transpired during the questioning. Fritcher testified that defendant arrived at the State Fire Marshal’s Office about 9:00 a. m. on the day of the fire (June 4) in compliance with a subpoena. Prior to the commencement of the interrogation, Fritcher testified that he had informed defendant of his Miranda rights', whereupon defendant indicated that he understood his rights and signed the waiver form. Although the questioning was conducted for the most part by Deputy Fritcher, Deputies Geter, Thompson and Dickerson also participated. Defendant’s wife and child were permitted to wait for him outside of the interrogation room during the questioning. Fritcher testified that defendant was offered food and drink and that refreshment was also provided to his wife and child. Furthermore, defendant was permitted to leave the room during the interrogation. Although the questioning lasted from 9:00 a. m. to 2:30 p. m., Fritcher stated that questioning during this period was not continuous since the officers were also interrogating other witnesses during that time. Three statements were made by defendant, the last of which was a confession in which he related that he set fire to the building because of a grudge that he had against its owner. Deputy Fritcher explicitly denied that he or any other officer in his presence promised defendant medical treatment or leniency on any charge in return for his cooperation. He also denied that defendant was drunk, testifying that there was no smell of alcohol nor was any drunken behavior exhibited by him. Deputy Geter’s testimony corroborated that of Deputy Fritcher and he likewise denied that defendant was intoxicated when he was questioned or that he was promised anything in an attempt to coerce him to confess.

To rebut the state’s showing of the volun-tariness of the confession, defendant called to the stand Deputy Clark who testified that about an hour before the fire was set, he discovered defendant asleep in the cab of his truck with the motor running. The deputy stated that at that time defendant was highly intoxicated. Defendant’s drunken condition around the time of the fire was further attested to by his wife. Defendant himself testified that he was still under the influence of alcohol when he was interrogated later that day and that he did not recall making any statement as to his alleged involvement in the crime. Moreover, he testified that Deputy Fritcher had promised him lenient treatment on charges pending against him and medical help if he cooperated.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La. R.S. 15:453; State v. Ross, 343 So.2d 722 (La.1977); State v. Cotton, 341 So.2d 355 (La.1976). Where the free and voluntary nature of a confession is challenged on the ground that the defendant was intoxicated at the time of the interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate the defendant’s comprehension and to render him unconscious of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the volun-tariness of the confession are questions of fact. State v. Green, 343 So.2d 149 (La.1977); State v. Manuel, 253 La. 195, 217 So.2d 369 (1968). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Ross, supra; State v. Demourelle, 332 So.2d 752 (La.1976); State v. Sims, 310 So.2d 587 (La.1975).

In the instant case, defendant’s allegation that he was promised medical treatment and leniency on pending charges if he confessed to the crime was uncorroborated. The testimony of Deputies Fritcher and Geter at the suppression hearing directly conflicted with defendant’s version of the alleged coercive incident. Furthermore, both Fritcher and Geter denied that defendant was under the influence of alcohol when he was interrogated, testifying that he understood the questions asked of him and was aware of his responses.

After reviewing the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the confession was freely and voluntarily made after defendant had been fully advised of his Miranda rights. State v. Ross, supra; State v. Demourelle, supra; State v. Sims, supra. Accordingly, the trial judge did not err in denying defendant’s motion to suppress and in admitting the confession in evidence.

Assignment of Error No. 1 is without merit.

DECREE

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

DENNIS, J., concurs not fully agreeing with treatment of assignment No. 8.

      . State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Charles E. JONES.
    No. 59099.
    Supreme Court of Louisiana.
    June 20, 1977.
    Thomas E. Richard, Gaharan, Richey & Wilson, Jena, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Speedy 0. Long, Dist. Atty., Don C. Burns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Charles E. Jones with the theft of thirteen hogs valued at $150.00, in violation of LSA-R.S. 14:67.1. After a trial without a jury, the judge found defendant guilty as charged and sentenced him to six years imprisonment at hard labor.

He appeals his conviction and sentence, relying upon two assignments of error.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1, defendant complains that the sentence imposed, six years at hard labor, is not responsive to the crime charged. He submits that the trial court erred in holding that he was charged with the offense of theft of hogs, when in actuality he was charged by a valid bill of information with the offense of theft. He asserts, therefore, that because he was charged with theft of property valued at approximately $150.00, the six year sentence imposed by the court is in excess of the maximum sentence in LSA-R.S. 14:67, the general theft statute.

The bill of information charged that defendant:

“committed the offense of theft in that On or about the 24th day of August, 1976, while in LaSalle Parish, Louisiana, he did commit the theft of approximately 13 hogs belonging to Joe Y. Corley, and being valued at approximately $150.00 in violation of LRS 14:67.1;” (Emphasis added.)

LSA-R.S. 14:67.1 provides:

“Theft of cattle, horses, mules, sheep, hogs, or goats is the misappropriation or taking of one or more of such cattle, horses, mules, sheep, hogs, or goats belonging to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations. An intent to deprive the other permanently of the cattle, horses, mules, sheep, hogs, or goats is essential.
“It shall not. be necessary to prove defendant killed an animal; the mere taking of meat from an animal shall constitute theft hereunder. In cases of slaughtering of an animal, removal from owner’s property is not essential for conviction of theft hereunder.
“Whoever commits the crime of theft of cattle, horses, mules, sheep, hogs, or goats shall be imprisoned at hard labor for not less than one nor more than ten years. At least one year of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” (Emphasis added.)

Under the provisions of LSA-R.S. 14:67, covering the theft of “anything of value,” the misappropriation of property valued at $150.00 carries a maximum sentence of imprisonment of not more than two years, with or without hard labor.

Louisiana Code of Criminal Procedure Article 465 sets forth the short form indictment for theft of hogs as “A.B. committed the theft of_(describe animal or animals stolen).” Because the sentencing structure of LSA-R.S. 14:67.1 is not based on value, no allegation of value is required. Article 465 further provides, however, that the recital of additional facts does not affect the sufficiency of the indictment.

The precise question presented is whether the initial use of the term “theft,” rather than “theft of hogs” in the bill of information coupled with the allegation of value makes the charge one for theft under LSA-R.S. 14:67 with a maximum two-year sentence. We think not.

Louisiana Code of Criminal Procedure Article 486 provides:

“An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because it contains repugnant allegations. Unnecessary allegations may be disregarded as surplusage.”

It is apparent that the addition of the words “of hogs” after theft in the initial language would add no information not supplied elsewhere in the charge. In the succeeding language, the bill of information charges that the defendant “did commit the theft of approximately 13 hogs.” This language satisfies the requirements of the short form indictment for theft of hogs. LSA-C.Cr.P. Art. 465, subd. A(45). The bill also cites the statute violated as LSA-R.S. 14:67.1, the specific statute defining the theft of hogs. The allegation of value must be regarded as surplusage, since as we have noted, the allegation and proof of value are not required in a prosecution for theft of hogs. LSA-C.Cr.P. Arts. 465, 486; State v. Sam, La., 304 So.2d 659 (La.1974).

The defense pleadings demonstrate that the defendant was not misled by the phrasing of the charge and that he fully understood that he was charged with the theft of hogs in violation of LSA-R.S. 14:67.1. For example, the defendant’s motion to reduce bond referred to the charge as “the alleged violation of R.S. 14:67.1.” Defendant’s motion to quash the Bill of Information alleged that he was “charged with the offense of theft of hogs.”

In pressing his argument that the offense charged here is Article 67 theft, rather than theft of hogs, defendant relies strongly on our decision in State v. Orr, 253 La. 752, 219 So.2d 775 (1969). There the charge recited: “a theft of property, to-wit, a bull calf, of a value of ($18.00) Eighteen and no/100 Dollars, contrary to and in violation of Article 67 of the Louisiana Criminal Code.” Conceding that the State had attempted to charge the defendant with theft under LSA-R.S. 14:67, the defendant contended that the theft of cattle could be charged only as an offense under LSA-R.S. 14:67.1. We held that the District Attorney was vested with the discretion of proceeding under Article 67, the general theft statute carrying a less severe penalty. Hence, that case is distinguishable.

We conclude that the crime charged here is theft of hogs in violation of LSA-R.S. 14:67.1. Hence, we hold that the sentence is within the statutory limits.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, defendant complains that the trial court erred in denying his motion to quash. In support of his allegation he urges that the statute under which he is charged is unconstitutional in that it violates the due process clause and the equal protection clause of the Fourteenth Amendment to the United States Constitution; and that the penalty under LSA-R.S. 14:67.1 constitutes cruel and unusual punishment contrary to the Eighth and Fourteenth Amendments to the United States Constitution.

On October 26, 1976, prior to the beginning of defendant’s trial, defense counsel made an oral motion to withdraw his motion to quash the bill of information, wherein he attacked the constitutionality of LSA-R.S. 14:67.1. The trial court judge then stated, “Show that since it’s been withdrawn that it’s considered overruled, that we’ll proceed with the trial.”

In oral argument, defense counsel urged that the unconstitutionality of a statute on which a conviction is based is an error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence, which this Court is entitled to review. In State v. Stewart, La., 325 So.2d 828 (1976), we held that this Court could properly review the constitutionality of a statute though the defendant had not complied with the assignment of error procedure, including the making of a timely objection. LSA-C.Cr.P. Art. 920, Official Revision Comment (d)(1966), as amended La.Acts 1974, No. 207, § 1. See State v. Dillard, La., 320 So.2d 116 (1975); State v. Williams, La., 322 So.2d 177 (1975).

In the instant case, however, defendant did more than fail to object and preserve his right to a judicial review of the alleged unconstitutionality of the statute. He specifically raised the issue in his motion to quash the bill of information. Quite intentionally, defense counsel withdrew his motion to quash and thereby specifically waived any allegation of the unconstitutionality of LSA-R.S. 14:67.1.

Moreover, in State v. Williams, supra, we held that a contention that the sentence inflicts cruel and unusual punishment because of its severity in the circumstances of the particular case, if reviewable on appeal, does not present an error that is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. LSA-C.Cr.P. Art. 920; State v. Shillow, La., 310 So.2d 103 (1975).

The contentions of unconstitutionality in Assignment of Error No. 2 are not properly before us for review.

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


author: CALOGERO, Justice.

text:
    Ronald Thomas MONSOUR, Sr. v. Roxie Ann Lewis MONSOUR.
    No. 59100.
    Supreme Court of Louisiana.
    June 20, 1977.

      B. J. Woods, Mecom, Scott & Woods, Shreveport, for defendant-applicant.
    Kenneth Rigby, Love, Rigby, Dehan & Love, Shreveport, for plaintiff-respondent.
   CALOGERO, Justice.

This case involves the custody of a nine year old boy, the son of plaintiff-relator Ronald Monsour and his former wife, defendant-applicant Roxie Monsour Shelton. He has lived with his mother continuously since his parents’ separation in 1972; at their divorce in July of 1974 custody was formally awarded to the mother. On April 6, 1976, the boy’s father, Ronald Monsour filed a petition alleging that conditions had changed which rendered the mother unfit and asking that custody be transferred to him. After a hearing, the trial judge dismissed plaintiff’s rule, leaving custody with the child’s mother, but the Court of Appeal reversed the lower court judgment, finding that the trial court had abused its discretion in allowing the mother to retain custody.

No allegations are made that the environment in which the child lived from 1972 until late in 1975 or early 1976 was anything but wholesome and normal. Beginning approximately in late 1975 and lasting about one year, allegations have been made that the child’s dressing and homework were not properly supervised, but neither court below found that these allegations were anything but minor complaints which do not serve to establish the mother’s unfitness for custody. The important factor in the courts’ determinations was Mrs. Mons-our’s admitted residence and sexual relationship with an unmarried man for a period of four months in early 1976 while the child also shared the same residence. She testified that although she and the man, William Henny Shelton, planned to get married, they had not set a definite wedding date and that she had seen nothing wrong with this arrangement at the time. After she was served with the rule requesting change of custody she conferred with her attorney. She said that at that time she realized for the first time that her living arrangement was hurting her son, and that it was important for her to legitimate her relationship with Mr. Shelton. They were soon married and thereafter, at the hearing on the rule, both she and her new husband convinced the trial judge that their marriage adjusted their living situation so that it would be in the child’s best interest to remain in his mother’s custody. The Court of Appeal reversed, finding that the four months residence with an unmarried man in an apartment shared by the child sufficiently proved the mother unfit, a fact not “cured” by her later marriage. The Court ruled that the trial judge’s decision was an abuse of his discretion. We reverse, adhering to the trial judge’s decision.

One indiscretion or escapade does not render unfit a custodian who has been granted custody of a child in a court decree. See Estopinal v. Estopinal, 223 La. 485, 66 So.2d 311 (1953); Tuggle v. Tuggle, 235 So.2d 166 (La.App. 2d Cir. 1970). However, when a court reviews the total circumstances under which the child is living, a judge may find that the custodian has pursued a notorious course of conduct that reveals an utter lack of regard for the moral principles held by most members of society. Johnson v. Johnson, 268 So.2d 114 (La.App. 3d Cir. 1972). Certainly past misconduct forms one of the important considerations in a court’s determination of the suitability of the custodian of a child. Borras v. Falgoust, 285 So.2d 583 (La.App. 4th Cir. 1973). Nevertheless the primary consideration in any custody award is the welfare of the child.

In the case of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) we agreed with a trial judge who found that the child’s mother had reformed, and that awarding custody to the reformed mother was in the child’s best interest. There we reaffirmed the rule that when an award of custody has been made, the party seeking the change must prove “that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.” Fulco v. Fulco, 259 La. at 1127, 254 So.2d at 605 and cases cited therein. The appellate courts must give this initial determination great weight because the trial judge, as we further stated in Fulco, 259 La. at 1130, 254 So.2d at 605,

“is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof.”

After reviewing this record, we find no error in the trial judge’s acceptance of the testimony presented by the Sheltons and their witnesses or by the court’s determination that the mother had reformed, as shown by her marriage to Mr. Shelton and their recent good care of her son. Mrs. Shelton has provided a good home and schooling for her son, an exceptionally bright and able young man. Her actions, apart from her previous illicit relationship, show her to be a mature, responsible individual who holds a steady job and meets her parental responsibilities. She declares that she wishes to continue to serve as custodian of her son. We do not find that her conduct for this single four-month period constituted such a total disregard of moral principles as to indicate an inability to offer moral leadership for her son or to provide for his welfare.

For these reasons, the judgment of the Court of Appeal is reversed, permanent custody of Ronald Thomas Monsour, Jr. is reinstated in defendant Roxie Ann Monsour Shelton, subject to the right of the child’s father to reasonable visitation rights. All costs are assessed against appellee, Ronald Thomas Monsour, Sr.

SANDERS, C. J., dissents, being of the opinion that the judgment of the court of appeal is correct.

      . Judgment of divorce was rendered July 3, 1974 in favor of Ronald Monsour; custody of their child was awarded to Roxie Monsour.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Milton VICTOR.
    No. 59111.
    Supreme Court of Louisiana.
    June 20, 1977.

      Lyall G. Shiell, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The defendant, Milton Victor, appeals from his conviction of the crime of aggravated battery, La.R.S. 14:34, and sentence of five years at hard labor, on the basis of one assignment of error reserved during trial.

Defendant asserts that it was error to allow the prosecuting attorney to question the defendant on cross-examination concerning prior criminal convictions. We find no merit in this assignment of error. La. R.S. 15:495 allows the introduction of evidence of prior convictions for the purpose of impeaching credibility of a witness. This Court is sharply divided on the question of whether the details of a prior offense, as well as the fact of conviction, are admissible for this purpose. Our review of the record in the instant case, however, discloses that the prosecuting attorney’s questions were directed toward determining exactly which crime the witness had committed and not to the factual details of the offense.

Accordingly, the conviction and sentence are affirmed.

      . Although a majority of this Court held that such details are admissible, State v. Jackson, 307 So.2d 604 (La.1975); State v. Elam, 312 So.2d 318 (La.1975), departing from the previous jurisprudence of this Court, State v. Kelly, 271 So.2d 870 (La.1973); State v. Brent, 248 La. 1072, 184 So.2d 14 (1966); State v. Danna, 170 La. 755, 129 So. 154 (1930), a large minority of this Court is of the opinion that the present majority view is unsound and contrary to the clear intention of La.R.S. 15:495. See, State v. Williams, 339 So.2d 728 (La.1976); State v. Jackson, 339 So.2d 730 (La.1976). See also, The Work of the Louisiana Appellate Courts for the 1974-1975 Term — Evidence, 36 La.L.Rev. 662-64 (1976); McCormick on Evidence, § 43 at 84-90 (2d ed. 1972).

      . The questions of the prosecuting attorney objected to by the defense were:
      “Q. Your attorney asked you about an assault charge, that was aggravated assault, wasn’t it? Wasn’t it aggravated assault? In other words, with the use of a dangerous weapon?

      “Q. Was it just an assault or aggravated assault with the use of a dangerous weapon?”


text:
    STATE of Louisiana v. Thomas PHILLIPS.
    No. 59122.
    Supreme Court of Louisiana.
    June 20, 1977.

      Ronald J. Rakosky, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Thomas Phillips, was charged by bill of information with simple burglary of a McKenzie Bakery in New Orleans on .May 19, 1975, in violation of La.R.S. 14:62. After electing to waive trial by jury, he was tried by a judge, found guilty as charged, and sentenced to serve five years imprisonment in the custody of the Department of Corrections. On this appeal, defendant assigns only one error for reversal of his conviction and sentence.

Prior to trial defendant filed three separate motions to suppress physical evidence seized and statements obtained from him following his arrest. By these motions defendant sought to suppress as evidence at trial all items seized during the search of his residence located at 3023 Desire Street, and during the search of his 1966 Mercury automobile, together with two written statements made by him after his arrest. The motions were consolidated for hearing and denied by the trial judge.

In his single assignment of error, defendant complains that the trial judge erred in refusing to grant his motions to suppress at trial the evidence hereinabove related. He contends that his warrantless arrest was not based upon probable cause and as a consequence all evidence seized and statements obtained after his arrest are the fruits of an illegal arrest and therefore were inadmissible at his trial.

It is true that any evidence obtained as a result of an unconstitutional and unlawful arrest must be excluded at trial based on the theory that the evidence is the fruit of the poisonous tree. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Tarver, 324 So.2d 382 (La.1975). The crucial question presented in this case, however, is whether the officers had probable cause to arrest the defendant.

The circumstances surrounding defendant’s arrest as developed at the motion to suppress hearing are as follows. On the afternoon of May 19, 1975, at approximately 2:40 p.m., Officers Alvin Alexander and Phillip Barre while on patrol were advised by police radio that an anonymous phone call had been placed informing the New Orleans Police Department Urban Squad that a subject described as “a negro male, approximately 5'8" tall, wearing a white T-shirt, blue pants, and pink undershorts” was dragging a safe in a driveway in the Desire Housing Project.

In response to this information, the two officers proceeded to the stated location and there observed a rather large safe abandoned in the driveway. On closer inspection, the officers observed that the safe showed visible signs of having been forcibly opened. The door of the safe had been removed and there were numerous marks on the safe indicating that an acetylene torch had been used to gain entry into the safe. Officer Alexander testified that they were advised by their dispatcher that a second anonymous call had been placed informing the department that the subject who had been seen dragging the safe from the vehicle was standing in the hallway of 3023 Desire Parkway. Again, the unidentified caller gave a description of the subject as a Negro male, five feet eight inches tall, wearing in particular pink undershorts.

Upon further investigating the scene, the officers observed a vehicle with its trunk up parked approximately thirty feet from the safe. There were drag marks on the concrete surface of the driveway running from the car to the location of the safe and particles of burnt metal which appeared to have come off the safe along this trail. Believing that the vehicle had been used to drag the safe across the driveway, the officers placed another call to their dispatcher giving the license number on the vehicle. Officer Alexander testified that they were advised that the car bearing that license number was registered in the name of Thomas Phillips. The officer stated that while he remained to investigate the parked vehicle, his partner, Phillip Barre, proceeded to the stated location and arrested the defendant Thomas Phillips who was standing in the hallway of one of the project apartment buildings. Officer Alexander testified that, when he observed the defendant, he was wearing a white T-shirt and very vivid pink undershorts exposed from the waist to the belt level; that defendant was advised of his rights and was charged with possession of stolen property; and at that time defendant said nothing except “What do you want me for?”

On the following day several detectives were assigned to the case and during the course of their investigation they obtained information positively connecting the safe with a burglary of a McKenzie Bakery. The safe containing approximately nineteen hundred dollars had been stolen from a McKenzie Bakery during the morning hours of May 19, 1975, the day of defendant’s arrest. After being fully advised of his Miranda rights and after signing a waiver of rights form, defendant later made two statements in which he admitted his involvement in the burglary. The officers obtained warrants to search defendant’s residence and his automobile which had been transported earlier to the police pound. As a result of these searches, the officers seized a number of items which purportedly linked defendant with the McKenzie burglary.

We have repeatedly held that a warrantless arrest must be based on the arresting officer’s reasonable belief that the person to be arrested has committed or is committing an offense. State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976); State v. Scott, 320 So.2d 538 (La.1975). Probable cause and not absolute certainty that a crime is being or has been committed is the test to be applied in judging the validity of an arrest. Probable cause exists when the facts and circumstances within the arresting officers’ knowledge and as to which they have reasonably trustworthy information are sufficient to warrant a prudent man in believing that the person to be arrested has committed or is committing an offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Ranker, supra; State v. Marks, 337 So.2d 1177 (La.1976); State v. Randolph, 337 So.2d 498 (La.1976); State v. Gilmore, 323 So.2d 459 (La.1975); State v. Johnson, 319 So.2d 786 (La.1975). While the officers need not be able to negate all possible lawful explanation of a situation before making an arrest, they must have within their knowledge information upon which to reasonably base a belief that the person to be arrested is criminally connected with the circumstances.

Defendant argues that at the time of his arrest the officers “had no specific knowledge” that a crime had been committed and that they did not have any information from which to reasonably conclude that he was in any way criminally connected with the safe burglary at the McKenzie Bakery. He argues that the officers did not have sufficient information to reasonably believe that a crime had been committed because the evidence showed that the police were not aware that the safe had been stolen from the McKenzie bakery until the day after his arrest.

Under the facts and circumstances here, we are convinced that the officers did have sufficient information to reasonably believe that a crime had been committed, even discounting the testimony of Officer Alexander as to the information about the bakery and the removal of a safe therefrom. The information received by the officers which prompted their initial investigation, the location where the safe was discovered, and its size and condition were sufficient to suggest criminal activity.

The only possibly troublesome question presented in this case is whether the officers had sufficient information to reasonably conclude that the defendant was in any way criminally connected with the safe. Defendant’s position is that the only connection between himself and the safe was the anonymous uncorroborated tip from the unidentified informant whose reliability was not established. Defendant could be correct in this regard if that were all that the officers had. In fact, however, besides this very precise description of the defendant in successive calls, the first of which had him dragging the safe (i. e. in possession of a safe which was probably stolen), the officers also had visible physical evidence indicating the safe had been dragged from an automobile which they learned was registered in the name of the defendant.

The evidence is uncertain as to whether defendant was formally arrested before or after the officers learned of the car’s registration. Officer Alexander testified that they had the information before defendant was arrested. At the very least, however, the officers learned that Phillips owned the car before he had been removed from the scene and before he had made any incriminating statements. Even if at the moment he was formally arrested in the hallway and given his rights no probable cause existed for his arrest, probable cause certainly arose upon the discovery that the car from which the safe had been dragged was registered to the man standing in the hallway and meeting the description given by the anonymous caller as the man who had been dragging the safe. At that point defendant’s arrest was based on probable cause. In summary, we believe that the subsequent o'n-the-scene investigation conducted by the officers corroborated the information conveyed by the tipster and was sufficient to warrant the belief of these officers that probable cause existed to arrest defendant for receiving stolen goods.

Because his arrest was legal, those “fruits” of the arrest (i. e. the search of the home and car, as well as the two confessions given by the accused) were also properly obtained. Therefore, we conclude that the trial judge did not err when he denied the defendant’s motion to suppress.

For the reasons assigned, the conviction and sentence of defendant Thomas Phillips are affirmed.

      . The exact measurements of the safe are thirty inches by twenty-two inches by twenty-two inches.

      . Officer Alexander further testified that after finding the safe they placed a call to their dispatcher by police radio informing him of the serial number on the safe; and that shortly thereafter they were advised by radio that the safe had been “taken in a burglary the previous night before from a McKenzie Bakery” located in that general area. The officer stated that this information was forwarded by a Fourth District Unit car, number 402 he thought, but he could not identify the person who transmitted the information. Because the officer’s testimony as to the fact that he had learned of the bakery robbery before making the arrest is not corroborated by other testimony, and because it is seemingly contradicted by the police report revealing that defendant was originally charged with the possession of a safe, “source unknown,” we do not consider this testimony in making our decision. This is not to say that we disbelieve Officer Alexander’s testimony.

      . Article 213 of the Code of Criminal Procedure provides that “a peace officer may, without a warrant, arrest a person when: ... (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.”


text:
    ANDREW DEVELOPMENT CORP. and Preston Phillips, d/b/a Preston Phillips Real Estate Co. v. WEST ESPLANADE CORPORATION.
    No. 59125.
    Supreme Court of Louisiana.
    June 20, 1977.

      Philippi P. St. Pee, Francipane, Regan & St. Pee, Metairie, for defendant-respondent.
    M. Arnaud Pilie, Pilie, Pilie & Landry, New Orleans, for plaintiff-applicant.
   MARCUS, Justice.

Andrew Development Corporation and Preston Phillips, d/b/a Preston Phillips Real Estate Company, real estate agents, instituted this suit against West Esplanade Corporation for the sum of $28,000 claimed to be due them under a written “Agreement to Purchase or Sell” real estate entered into between West Esplanade Corporation as seller and Preston Phillips Development Company, Inc. as purchaser. Another suit entitled Preston Phillips Development Company, Inc. v. West Esplanade Corporation and Dr. William E. Griffith was consolidated with the present suit for trial. Defendants West Esplanade Corporation and Dr. William E. Griffith moved for a summary judgment. The district court granted summary judgment in their favor on the grounds that parol evidence was not admissible to prove a breach of a contract to sell immovable property and that the commission had not been earned by the agents since the mortgage loan had not been secured in accordance with the agreement. The judgment of the district court dismissed both of the consolidated suits. Only plaintiff Andrew Development Corporation took an appeal. The court of appeal affirmed. Upon application of Andrew Development Corporation, we granted cer-tiorari to review the correctness of this decision.

Prior to June 3, 1975, West Esplanade Corporation, through its president, Dr. William E. Griffith, requested Andrew Development Corporation, a licensed real estate broker, to find a purchaser for certain immovable property which it owned in Jefferson Parish for the price of $650,000. Andrew located a purchaser, Preston Phillips Development Company, Inc., who executed a written agreement to purchase said property for $650,000 on June 3, 1975. The offer to purchase was accepted by West Esplanade on June 8, 1975. The act of sale was to be passed prior to September 3,1975. The agreement provided that the sale was conditioned upon the ability of the purchaser to obtain a loan for a certain amount under specified conditions. It further stated that “should purchaser, seller or agent be unable to obtain the loan stipulated above within 60 days from acceptance hereof, the contract shall then become null and void.” The agreement also provided for an agent’s commission of $28,000 to be paid by the seller, which commission was earned by the agent “when this agreement is signed by both parties and when the mortgage loan, if any, has been secured.” It was stipulated that Preston Phillips Real Estate Company was to receive $9,330 and Andrew Development Corporation $18,670 of the commission. Finally, the agreement contained a clause which set forth that “either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all reasonable attorney’s fees and costs' incurred by the other party, and/or agent in enforcing their respective rights.” The act of sale was not passed prior to the expiration date of the agreement (September 3, 1975) nor were any of the parties placed in default.

In its petition, Andrew alleged that, prior to the expiration of the sixty-day period from the acceptance of the agreement to purchase, Dr. Griffith, acting on behalf of West Esplanade, indicated to both purchaser and agent that he did not intend to go through with the sale. Because of this refusal to comply with its obligation to sell, plaintiff alleged that, although purchaser was able to obtain the loan provided in the contract, it elected not to secure the loan commitment since to do so would have required the payment of a $5,000 non-refundable commitment fee. Andrew further alleged that defendant’s refusal to sell constituted an active breach of the contract which relieved both Andrew (agent) and purchaser of their obligations to further perform under the agreement. As a result, West Esplanade was liable to Andrew for its commission under the terms of the contract. In answer to plaintiff’s petition, West Esplanade denied that it had refused to perform its obligation to sell and averred that the commission was not due plaintiff since the mortgage loan had not been secured, a prerequisite to the earning of the commission under the terms of the contract.

In support of its motion for summary judgment, West Esplanade offered the affidavit of Dr. Griffith in which he denied that West Esplanade had ever actively breached the agreement by refusing to proceed with the sale or that it had ever been put in default by Andrew prior to the expiration of the agreement (September 3, 1975). In opposition to West Esplanade’s motion for summary judgment, Andrew filed the affidavits of Andrew L. Roy, its president, and Preston Phillips, president of Preston Phillips Development Company, Inc. and owner of Preston Phillips Real Estate Company, in which they stated that, prior to the expiration of the sixty days from the date the purchase agreement was accepted, Dr. Griffith told them that West Esplanade did not intend to proceed with the sale.

The sole issue presented for our review is whether, based on the pleadings, affidavits, answers to interrogatories and other evidence filed by the parties pursuant to defendant West Esplanade Corporation’s motion for summary judgment, a genuine issue of material fact was presented as to whether defendant actively breached the agreement to purchase, thereby relieving plaintiff (Andrew Development Corporation) and the purchaser of their obligation to perform under the contract and plaintiff of the duty of putting defendant in default as a prerequisite to recovery of its commission.

La.Civil Code art. 1931 provides:

A contract may be violated, either actively by doing something inconsistent with the obligation it has proposed or passively by not doing what was covenanted to be done, or not doing it at the time, or in the manner stipulated or implied from the nature of the contract.

Further, La.Civil Code art. 1932 states:

When there is an active violation of the contract, damages are due from the moment the act of contravention has been done, and the creditor is under no obligation to put the debtor in default, in order to entitle him to his action.

Pursuant to these provisions, it has been recognized that an anticipatory breach of contract is actionable in Louisiana. Marek v. McHardy, 234 La. 841, 101 So.2d 689 (1958). Where a party refuses and does not merely fail or neglect to comply with his contractual obligation, his refusal constitutes an active breach of the contract which relieves the other party of the obligation of continuing to perform under the contract. Marek v. McHardy, supra. Moreover, a definitive refusal to perform obviates the necessity of a formal putting in default as a prerequisite to recovery by the obligee. Eota Realty Co. v. Carter Oil Co., 225 La. 790, 74 So.2d 30 (1954); Fox v. Doll, 221 La. 427, 59 So.2d 443 (1952); Stockelback v. Bradley, 159 La. 336, 105 So. 363 (1925).

La.Civil Code art. 2275 provides in pertinent part:

Every transfer of immovable property must be in writing ....

La.Civil Code art. 2276 further states:

Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.

These provisions prohibit the introduction of parol evidence to vary, alter or contradict the terms of a contract which is required to be in writing. However, parol evidence is admissible to prove a breach of a contract which must be in writing for in that case the evidence is not offered to modify the terms of the contract but to demonstrate a refusal to comply with them. Collins v. Buck, 161 La. 641, 109 So. 341 (1925); Harvey v. Aaron, 2 La.App. 288 (Orleans, 1925). Applying these principles to the instant case, we are of the opinion that the trial judge erred in ruling that the parol evidence embodied in plaintiff’s petition and opposing affidavits was not admissible to establish that there existed a genuine issue of material fact as to whether defendant had actively breached the agreement to purchase.

It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

After reviewing the pleadings, affidavits and answers to interrogatories filed by the parties and resolving all doubts against the mover as required by law, we are convinced that there is a genuine issue of material fact as to whether defendant, acting through its president, refused to comply with its obligation to sell, a fact which, if proven, would constitute an active breach of the contract and which would relieve plaintiff of further performance under the contract and of putting defendant in default as a prerequisite to recovery. Hence, we are of the opinion that defendant is not presently entitled to a judgment as a matter of law. Accordingly, the judgment of the court of appeal upholding the summary judgment in favor of defendant was improper.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside, West Esplanade Corporation’s motion for summary judgment as it relates to Andrew Development Corporation is overruled, and the case is remanded to the district court for further proceedings according to law and consistent with the views herein expressed. All costs incurred in connection with the motion for summary judgment shall be paid by West Esplanade Corporation. Assessment of other costs is to await the final determination of the litigation.

      .Preston Phillips, d/b/a Preston Phillips Real Estate Company, the other plaintiff in this suit, and Preston Phillips Development Company, Inc., the sole plaintiff in the consolidated suit, did not appeal from the judgment of the district court. Accordingly, the only parties before this court are Andrew Development Corporation and West Esplanade Corporation, plaintiff and defendant respectively in the original suit.

      . 339 So.2d 962 (La.App. 4th Cir. 1976).

      . 341 So.2d 1126 (La.1977).


text:
    STATE of Louisiana v. Roosevelt WILLIAMS.
    No. 59154.
    Supreme Court of Louisiana.
    June 20, 1977.

      Alan James Boudreaux, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Roosevelt Williams, was charged by bill of information with distribution of heroin, a controlled dangerous substance, in violation of La.R.S. 40:966(A). A twelve person jury found him guilty as charged and he was subsequently sentenced to life imprisonment at hard labor. On appeal, defendant urges two assignments of error for reversal of his conviction and sentence. We affirm.

ASSIGNMENT OF ERROR NO. 1

Defendant complains that the trial court improperly admitted evidence of another crime which was irrelevant to the instant prosecution and which prejudiced the jury against the defense.

The alleged “other crimes” evidence arose during the testimony of Officer David Gonzales, a narcotics undercover agent. After the witness testified that defendant had sold him fifteen dosage units of heroin, he was asked by the prosecutor: “Did you indicate to him that you might be agreeable to make further sales in * * *.” Defense counsel interrupted with an objection that the question called for a speculative response for which no foundation had been laid. The trial court overruled the objection and permitted Officer Gonzales to testify that he had advised defendant of his willingness to deal with him in the future.

The objection is without reversible merit. Before making the statement complained of, Officer Gonzales, without defense objection, had related to the jury defendant’s offer of prospective drug sales: “[Defendant] told me . anytime I needed a connection I could count on him to do my buying.” Consequently, the officer’s statement that he had expressed an inclination to transact business with defendant in the future added little, if anything, to the earlier damaging testimony introduced without objection. Therefore, if it was error to allow the introduction of this evidence, it does not appear that the mistake complained of probably resulted in a miscarriage of justice. La.C.Cr.P. art. 921.

ASSIGNMENT OF ERROR NO. 2

This assignment, which defendant argues on his own behalf, relates to the allegedly improper curtailment of defense counsel’s cross-examination of Officer David Gonzales.

On direct examination, Officer Gonzales testified that defendant had met him in a shopping center parking lot at 8:30 p. m. on April 16, 1974, that defendant had arrived in a Ford Maverick accompanied by another man who remained in the car while defendant alit and entered Gonzales’ car, where the drug sale was negotiated and made, and that defendant had then returned to the other vehicle and departed with his companion.

On cross-examination, the officer stated more specifically that defendant’s companion was a man known to him as “Ty-U,” later identified as Albert Cobb. After he admitted a previous acquaintance with Cobb, the witness was asked, “And isn’t Ty associated with you in narcotics investigations?” The State objected on the ground of relevancy. Defense counsel explained that he was attempting to arrive at “the status, situation or relationship between Ty-U and this officer and Roosevelt Williams.” In response, the court ruled:

“ * * * the area of legitimate inquiry here is any activity with respect to this investigation. I can’t understand what relevance other investigations would have.”

In accordance with the court’s decision defense counsel was permitted to establish that Cobb, a heroin addict with a prior arrest record, had contacted Officer Gonzales on the street with the information that defendant was willing to sell narcotics. Also, he elicited testimony that Cobb had arranged the meeting between defendant and the officer and had transported defendant to the designated meeting place. However, further inquiry into Cobb’s participation in other investigations and related questions, such as whether he had been given Officer Gonzales’ home telephone number, were disallowed as irrelevant.

La.R.S. 15:441 defines relevant evidence as follows:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
“Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

The trial judge is vested with much discretion in determining the relevancy of evidence and absent a clear abuse of that discretion his ruling will not be disturbed on appeal. State v. Winston, 343 So.2d 171 (La.1977), and cases cited therein. The relevancy of evidence is to be tested by the purpose for which it is offered. La.R.S. 15:442; State v. Passman, 345 So.2d 874 (La.1977). Defense counsel’s stated interest in discovering the relationship between Cobb, Officer Gonzales and defendant did not establish the relevancy of inquiry into Cobb’s prior undercover activities. As we have observed, counsel was given broad latitude in examining the extent of Cobb’s participation in this case, and we find reasonable the trial court’s determination that no relevant purpose had been established for plumbing Cobb’s involvement in other investigations.

Far afield of the designated assignment of error, defendant argues that Cobb was a material witness in the case whose role as an informant should have been disclosed and who should have been produced at trial by the State. The State’s failure to do so, he claims, obstructed his defense that Cobb had “framed him.”

At trial, defendant took the stand and testified that on the night of the offense Cobb, whom he had known for about a year, visited his home first offering to sell defendant some shirts, which he declined, then to share some heroin with him if he accompanied Cobb on a business venture. Defendant maintained that he went along, not knowing the nature of Cobb’s “business.” Allegedly, Cobb drove defendant to the shopping center, parked alongside Officer Gonzales’ vehicle and instructed defendant to hand the officer a package through the window. Defendant claimed that he complied, thinking that the package contained the shirts previously offered to him. On cross-examination, defendant asserted that his attempts to locate Cobb and secure his attendance at trial had proved unsuccessful.

Defendant urges that Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), required the state to identify Cobb as an informant and to produce him at trial. In Roviaro, the Government’s informer, who was not called as a witness at trial and whose identity was not disclosed, was the sole participant, other than the accused, in the transaction charged. The Court held:

“Where the disclosure of an informer’s identity, or of the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [to withhold the informer’s identity] must give way.” 353 U.S. at 60-61, 77 S.Ct. at 628.

We have little difficulty in distinguishing the present case, since the State did not avail itself of the informer’s privilege. Cobb was freely identified at trial as the person who had supplied police with information of defendant’s willingness to sell narcotics and had actively participated in the transaction charged. Defendant complains, however, that the State did not reveal whether Cobb was compensated for his cooperation or whether he had acted as a “stool pigeon” in this case. There is no basis in the record for such a complaint, as counsel abandoned his efforts to solicit this information without discouragement by the court. The acts and choices of an accused’s trial counsel, in this case to withdraw from a line of inquiry which defendant wished pursued, are deemed to be those of the accused himself and may not be assigned as error on appeal. La.C.Cr.P. art. 841; State v. Marcell, 320 So.2d 195 (La.1975).

Likewise, we find that defendant has not preserved the issue of whether the State should have produced Cobb at trial. In some exceptional cases, the prosecution’s obligation to exercise reasonable diligence in producing an informant to testify has been recognized. United States v. Diaz, 535 F.2d 130 (1st Cir. 1976); United States v. Williams, 496 F.2d 378 (1st Cir. 1974); United States v. Pollard, 479 F.2d 310 (8th Cir. 1973); Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965). The duty is dependent upon several factors, including the importance of the witness’ testimony, the State’s control of the witness, and the difficulty in finding him. United States v. Diaz, supra; United States v. Williams, supra. In this case, however, the question is not before us, since defendant at no time attempted to enlist the assistance of either the State or the trial court in locating Cobb. The disingenuousness of defendant’s assertions that Cobb was a crucial witness for the defense who could alone have corroborated defendant’s allegations of a frame is betrayed by defendant’s own inaction in securing Cobb’s attendance. Defendant did not move for his production at trial, did not seek to compel the State to disclose his address, and did not subpoena him as a witness. Under these circumstances, defendant has presented nothing for our review.

This assignment is without merit.

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


author: 'TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Midas WESLEY, Appellant.
    No. 59167.
    Supreme Court of Louisiana.
    June 20, 1977.

      Joseph G. Kopfler, Student Practitioner, Arthur A. Lemann, III, Supervising Atty., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   'TATE, Justice.

The defendant was convicted of simple burglary La.R.S. 14:62, and sentenced to three years imprisonment at hard labor. Upon his appeal, he relies upon two principal alleged errors:

(I) The prosecution should be dismissed, because the present (or fourth) trial for the offense offends the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution (Assignment 1); and

(II) The trial court incorrectly denied a mistrial sought because of prosecutorial overreaching in the closing arguments (Assignments 6 and 7).

I.

The present is the fourth trial of the defendant on the present charge. It was held within a year of the offense charged.

Previously, three earlier trials had resulted in mistrials — the first because of a prejudicial remark by the prosecutor in the closing argument, the second because of a hung jury, and the third because of a prejudicial remark by the prosecutor in the opening statement.

It is conceded that the (second) mistrial because of a hung jury does not prevent a re-trial. It is likewise conceded that ordinarily the first and third mistrials, granted upon the motion of the defendant, likewise do not prevent a re-trial:

“ * * * [WJhere circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (Italics ours). See also Note, 32 La.L.Rev. 145 (1971).

The defendant relies, however, upon the “bad-faith” exception to the general rule, which is implied by the clause above italicized: “The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by the judge or prosecutor’ threatens the ‘[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. [Citations omitted.]” United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081-82, 47 L.Ed.2d 267 (1976) (Italics ours).

We do not find merit to this contention, because no prosecutorial bad faith is instanced by the circumstances in which the (first and third) mistrials were granted at the defendant’s motion.

In the first (April 10, 1975) mistrial, the prosecutor in closing statement indicated that the accused’s companions, who had pleaded guilty, had received jail sentences of six months. The record showed that the three confederates had pleaded guilty, but it did not show the sentences they had received.

Because of this allusion to evidence not before the jury, the trial court sustained the defendant’s motion for a mistrial; it felt that the defendant might be prejudiced if the jury believed that he was subject only to a sentence of six months. The record indicates that the assistant district attorney had inadvertently mentioned the sentences, being of the mistaken impression that the minutes involving the co-defendants were in the record and showed the six-month sentences they had received.

The other mistrial on motion of the defendant (June 19,1975) resulted because the prosecutor, in opening statement in violation of La.C.Cr.P. art. 917, had referred to an inculpatory statement by the defendant. (By it, he had admitted to the police that the truck used in the alleged burglary belonged to him.)

Again, the error of the assistant district attorney seems to have been an inadvertent reference and not a bad-faith attempt to abort a trial. The defendant himself took the stand in both the April and the present (September) trials and admitted that the truck belonged to him. (His defense was primarily that, although he was trespassing in what he thought to be an abandoned house, he was not in the house for any other criminal purpose.)

We must reject the defendant’s argument that these two earlier mistrials were precipitated by bad-faith prosecutorial conduct intended to abort the trials in question.

Nevertheless, pointing out that the present is the fourth instance in which the state has tried him for the same offense, the accused further contends that in these circumstances the Fifth Amendment’s Double Jeopardy Clause prevents him from being subject to repeated mistrials, whether or not the earlier trials were aborted due to prosecutorial bad faith.

The defendant contends that Double Jeopardy prevents continued harassment of a defendant by re-trials when the state is repeatedly unable to secure a guilty verdict in earlier trials. He relies upon Preston v. Blackledge, 332 F.Supp. 681 (E.D., N.C., 1971), interpreting Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) and Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). But cf., United States v. Castellanos, 478 F.2d 749 (CA 2, 1973).

Whatever validity there may be to the contention that at some point Double Jeopardy prevents continued governmental harassment by retrial after multiple failures to convict because of jury deadlocks, such a principle would not apply to the present facts. Two of the three earlier mistrials resulted not from hung juries but instead from technical prosecutorial error prior to jury verdict. The trial court on the accused’s motions had therefore granted mistrials to avoid subjecting the accused to a prejudice-tainted adverse jury verdict.

Accordingly, we find no merit to this assignment of error.

II.

The defendant also contends that the trial court incorrectly denied the defendant’s motions for a mistrial and for a new trial because of improper prejudicial comments by the prosecutor in her closing statement.

When the accused, age 47, took the stand he admitted to three prior convictions. Two of his companions (who had pleaded guilty) testified in support of the defendant’s position that they had not entered the abandoned building with any intent to take objects of value from it. These two individuals were much younger than the accused, the age of one being shown as 22.

In the course of her rebuttal argument, the assistant district attorney commented that if the accused was found not guilty, “the state believes that he is just going to go out, Ladies and Gentlemen, and recruit some more young kids and have another crew — .” The court immediately sustained a defense objection and then asked the prosecutor, “Have you completed your argument?”, in implied rebuke.

When the prosecutor immediately rested, in response to this implied suggestion by the trial court, the defendant immediately moved for a mistrial because of the improper comment. (No evidence of any past digression permitted the inference argued by the prosecutor.)

We are unable to say that the trial court abused its discretion by denying a mistrial under the circumstances. The defendant’s immediate objection was immediately sustained, and the prosecution requested to close her argument by way of implied rebuke. The drastic remedy of a mistrial is not warranted if, within the sound discretion of the trial court, an admonition is sufficient to preserve the defendant’s right to a fair trial. La.C.Cr.P. art. 771.

The defendant also complains of the prosecutor’s additional statement in rebuttal. The prosecutor explained that the state had permitted the other defendants to plead guilty, since they were “young kids” and “had no other record.” The prosecutor then stated that the accused had “been around. He knows what’s going on. Maybe somebody else somewhere gave him a chance, but I believe, Ladies and Gentlemen, he should be tried today for that crime and he should be before you on that particular charge.”

The prosecutor came dangerously close to reversible error by way of expressing a personal opinion of the truthfulness of the state’s case against the accused as reenforced by the knowledge and influence of her official position. See State v. Kaufman, 304 So.2d 300, 307-08 (La.1974).

Nevertheless, we ultimately deem the comment to be non-reversible under the present circumstances, because it was offered by way of reasonable explanation in countering an earlier defense argument. The defense had strongly argued that the state’s case against the defendant must be weak, since the state had permitted the two co-defendants to plead guilty to misdemeanor theft rather than trying them upon the felony burglary charge for which the defendant was on trial.

Decree

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

AFFIRMED.

      . Actually, in the motion for mistrial made at the close of the prosecutor’s rebuttal, the defendant did not urge this second comment as a basis for the mistrial. The state contends that, by not specifying this basis for a mistrial at the close of the prosecutor’s rebuttal, the defendant waived his right to complain of it by his motion for new trial after the verdict. La.C.Cr.P. art. 841. Since we do not find merit to the accused’s complaint, we do not find it necessary to rest our holding upon this at least equally proper basis for appellate decision of the issues raised.


author: DIXON, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Gregory HOLMES.
    No. 59184.
    Supreme Court of Louisiana.
    June 20, 1977.
    Ernest F. Teitell, Student Practitioner, William J. O’Hara, III, Supervising Atty., New Orleans, for defendant-respondent.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Emery N. Voorhies, Asst. Dist. Attys., for plaintiff-relator.
   DIXON, Justice.

Defendant Gregory Holmes was indicted by the Orleans Parish Grand Jury for distribution of heroin, in violation of R.S. 40:966. Trial was set for January 10,1977. Prior to voir dire examination defense counsel filed a motion in which he requested that the State furnish the defense with a list in its possession “containing each and every prospective juror’s prior voting record in criminal trials.” When the trial judge ordered the State to comply with the request the State objected and moved for a contradictory hearing. After conducting the hearing the trial judge ordered the State to furnish the requested list. The State objected and upon timely application we granted the State’s application for writs. La., 342 So.2d 672.

The testimony at the hearing revealed that although not specifically required by the district attorney, it is customary for the assistant district attorneys who try cases in the Orleans Parish Criminal District Court to make notations on the jury lists furnished to them regarding the type of cases the jurors had served on and their voting records as revealed through polling. The admitted purpose of these lists was for use by the attorney compiling the list and by his fellow prosecutors in selecting juries in other criminal cases. The State explains that the vote of jurors who have previously served is revealed when the jury is polled after verdict. The State then explains the procedure:

“The practice in the District Attorney’s Office is to record the vote in some manner by the Assistant District Attorney who handled the case, usually by marking on the jury list (marked Court’s Exhibit # 1). The Assistant District Attorney who records the vote then sends it to the secretary of the Trial Division, where copies are made and distributed to the respective Sections of Court. The Assistant in each Section, if he so chooses, logs the vote of the particular juror on his jury venire (marked Court’s Exhibit # 2) which he or she receives at the beginning of the month from the Jury Commissioner.”

The defendant seeks to have this information furnished to him because, he argues, the information (which the State admittedly intends to use in voir dire) is not otherwise available, and to deny access to the information violates due process and infringes the right to a fair and impartial jury drawn from a cross section of the community.

The State argues that the information requested is privileged as it represents the “work product” of the assistant district attorney who compiled the information. However, we need not reach this question unless we find that some statutory or constitutional rule mandates discovery of the information. Defendant’s constitutional arguments are premised upon his inability to obtain the information from any other source and, thus, the existence of a non-reciprocal advantage offends fundamental fairness. The hearing does reveal, contrary to the State’s argument, that it would be impracticable and perhaps impossible for the various defense attorneys who practice in criminal district court to set up a system similar to the comprehensive procedures presently used in the district attorney’s office. In addition, the polling procedure commonly used also prevents discovery, after the fact, of the individual juror’s vote. Pursuant to C.Cr.P. 812 the judge, in his discretion, can poll the jury in writing. Although the judge and counsel are permitted to view the individual responses, in Orleans Parish the record only reveals the results of the polling, i.e., ten to two for conviction.

The Louisiana Constitution of 1974 guarantees each criminal defendant the “right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” La.Const. Art. 1, § 17. It is settled that wide latitude must be given the defendant during voir dire examination in order that the defendant may intelligently exercise the substantial right to exercise peremptory challenges or challenges for cause. State v. Monroe, 329 So.2d 193 (La.1976); State v. Brumley, 320 So.2d 129 (La.1975); State v. Jones, 282 So.2d 422 (La.1973). As we stated in State v. Hills, 241 La. 345, 129 So.2d 12, 31 (1961):

“It is a general view as to voir dire examination that the defendant in a criminal prosecution is entitled to make reasonable and pertinent inquiries of the prospective juror so that he may exercise intelligently and wisely his right of peremptory challenge — since each party has the right to put questions to a juror not only to show that there exists proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will make a peremptory challenge. For this reason, a wide latitude is allowed counsel in examining jurors on their voir dire, and the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes an inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner. The Constitution itself (La.Const. of 1921, Art. 1, Sec. 10) guarantees to the accused the right to peremptorily challenge jurors, ‘the number of challenges to be fixed by law;’ that number, in the trial of any crime for which the penalty is death or necessarily imprisonment at hard labor, is twelve (R.S. 15:354). The intelligent exercise of the right of rejection, by use of those twelve peremptory challenges, is the meat of the privilege, and can be substantially weakened by a restriction of questions — the answers to which might be regarded as informative of a juror’s attitude and therefore of vital importance to his defense. In State v. Henry, 196 La. 217, 198 So. 910, 915, this Court quoted with approval from 35 C.J. at pages 387, 405 and 406; * * * parties have a right to question jurors on their examination not only for a challenge for cause, but also, within reasonable limits, to elicit such facts as will enable them intelligently to exercise their right of peremptory challenge, and * * it is error for the court to exclude questions which are pertinent for either purpose. * * * The right of peremptory challenge is a substantial right, and its freest exercise should be permitted.” * * * ’ (Emphasis supplied.)” (Footnote omitted).

Thus, it is permissible for defendant to ask prospective jurors during voir dire questions such as: (1) Have you ever served on a criminal jury before? (2) What was the charge in that case? (3) What was the verdict in the case?, etc. Although there is contrary jurisprudence, it is supported by neither statute nor reason. Therefore, to the extent that other cases are in conflict with this opinion they are overruled. Specifically overruled are State v. Roquemore, 292 So.2d 204 (La.1974); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971); State v. Martin, 250 La. 705, 198 So.2d 897 (1967). The Martin case was grounded on Article 357 of our former Code of Criminal Procedure, which provided that voir dire examination should be limited to ascertaining the “qualifications of the juror.” Article 786 of the Code of Criminal Procedure of 1966 omits the provisions of former C.Cr.P. 357, and the Official Revision Comment refers with apparent approval to the 1961 case of State v. Hills, supra.

As we noted in State v. Wright, 344 So.2d 1014 (La.1977), once defendant demonstrates that the information concerning past jury experience is inaccessible to him, and that the State intends to use this information, he would have shown that the information was necessary to prevent undue prejudice to his case, hardship or injustice. Since voir dire has not yet been conducted, defendant’s claims based on fundamental fairness and inability to obtain the information through other means are premature.

Since we find no constitutional or statutory rule requiring the State to disclose the lists in question, we find that the trial judge improperly ordered same. Accordingly, the judge’s ruling is reversed and the case is remanded for further proceedings not inconsistent with the views expressed herein.

MARCUS, J., concurs.

SANDERS, C. J., concurs in the decree.

TATE, J., dissents and assigns reasons.

TATE, Justice,

dissenting.

I respectfully dissent from the majority opinion.

In my opinion, the trial court did not abuse its discretion by requiring the prosecutor to furnish the defense with a list in the state’s possession. The list showed the prior voting record in criminal cases of prospective jurors impanelled to try the present case.

The recording of these votes over many trial is not part of the “work product” developed by the prosecuting attorney in preparation for this trial. The listing is part of governmental record-keeping by the prosecutor’s office as an institution of information not readily available, if at all, to non-institutional counsel or even to defense counsel of legal aid institutional offices.

All parties concede that this information is of assistance in the exercise of challenges designed to secure a fair and impartial jury. I am unable to see how the state could be prejudiced by affording the accused an equal chance with it to select a fair jury. “The duty of the prosecutor is to seek justice, not to convict.” American Bar Association Standards Relating to the Prosecution Function, Standard 1.1(c) (1971).

The resources of the legal profession are today strained to accommodate the needs of the criminal justice system. In actuality, public monies are for all practical purposes used to fund both the prosecution and defense of criminal charges.

In this context, we should encourage rather than inhibit the efforts of trial judges, such as the present, to help assure a fair trial, and at the same time avoid duplication of investigation involving the wasteful expenditure of defense lawyer-time in collecting data already collected at public expense (for the supposed purpose of helping to obtain fair and impartial trial juries).

The trial court had the inherent power to issue its order. La.C.Cr.P. arts. 3, 16, 17; La.Const. of 1974, Art. 5, Section 2. I find no abuse by the trial court of its powers thus statutorily and constitutionally conferred upon it.

The majority correctly notes, I should add, that the defendant is entitled to the information granted by the trial court (and now denied by us) upon his demonstrating that past jury experience is inaccessible to him. State v. Wright, 344 So.2d 1014 (La.1977).

The majority does not seem to essentially differ with this dissent’s view as to the defense right to receive the information, but only with the timing of its availability to the defense.

Both defense and prosecution have already in oral argument demonstrates, in my opinion, that the prerequisite showing by the defense will easily be met. If I interpret the majority opinion correctly, the defense will be able to obtain the lists if, on the date voir dire examination actually commences, it makes the same showing of unavailability it already has (prematurely, the majority says).

Voir dire examination of prospective jurors as to prior voting records cannot practicably afford the defendant information for the purpose sought — even if we overrule the contrary jurisprudence which disapproved examination of this nature (as the majority says it does). The attempt to secure this information by voir dire is also fraught with possibilities of prejudice, mistrial, and collateral inquiry (types of crimes, etc.).

My basic disagreement with the majority opinion, however, is its implication that, in the absence of statute expressly enabling the action, the trial court may not issue necessary and proper orders in aid of. its jurisdiction such as the present. La.C.Cr.P. arts. 3, 16, 17; La. Const. of 1974, Art. 5, Section 2. To the contrary, this court has always recognized the judicial power, in the absence of contrary statute, to regulate proceedings before the court through the exercise of the court’s inherent powers to issue needful orders in aid of its jurisdiction. See, e.g., State v. Rasheed, 248 La. 309, 178 So.2d 261 (1965).

I must therefore respectfully dissent.

      . In Wright, we refused to reverse a conviction, where the reversal was sought on the basis of the trial court’s denial of pre-trial access by the defense to the voting lists. We there found no such abuse of discretion as would require reversal, in the absence of a showing that the accused had actually been prejudiced by the denial.
      An entirely different issue is presented to us now: Did this trial court abuse its discretion by requiring pretrial disclosure of such voting lists? We should not lightly disturb the court’s use of its discretion, in a commendable attempt to assure a fair trial through facilitating an equal opportunity of both parties to select a fair jury.

      . It is not productive of efficient jury voir dire to require examination of each prospective jur- or as to his past criminal voting records, especially where such information can be learned instead at a glance by examining a previously prepared list. This is a wasteful use of the time of judge, attorneys, and prospective jurors. The possibilities of prejudice to the accused are inherent, if required (as the state, possessing the lists, is not) to ask each juror questions of the nature indicated an to have their responses heard by the other prospective jurors.

      . In Rasheed, in the then-absence of legislative provision therefor, this court judicially created a motion to suppress unconstitutionally seized evidence, and by court decision (only) required that such motion be made before trial, upon penalty of waiver of the right to object to the evidence as unconstitutionally seized.
      The court did so, in the absence of statute, to provide a procedure wherever the accused could vindicate his constitutional rights without at the same time prolonging or disrupting the trial on the merits.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Lemon Earl NORRIS.
    No. 59198.
    Supreme Court of Louisiana.
    June 20, 1977.

      John Ford McWilliams, Jr., Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Eugene W. Bryson, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Lemon Earl Norris was charged by two bills of information with the crime of simple burglary, a crime denounced by Article 62 of the Criminal Code, which prescribes a maximum penalty of nine years’ imprisonment at hard labor. Defendant pled not guilty to each charge. As a result of these charges, the defendant filed a number of motions, including an application for bill of particulars, motion to suppress evidence and motion for preliminary examination. These motions were set for hearing on September 22, 1976.

On September 22, 1976 defendant withdrew his former plea of not guilty and pled guilty to attempted simple burglary on one of the charges. According to Article 27 of the Criminal Code a penalty of one-half the punishment authorized for the crime attempted is prescribed for an attempt.

Before accepting the guilty plea, the trial judge inquired of defendant if he understood that by entering the guilty plea he was waiving his right to trial by jury, his right against compulsory self-incrimination and the right to be confronted by the witnesses against him. The defendant replied affirmatively. The District Attorney made a statement of the facts and the defendant confirmed their correctness. The trial judge then inquired of the defendant if he was aware of the nature of the charge to which he was pleading and the maximum possible penalty therefor and whether his plea to attempted simple burglary was freely and voluntarily made. The defendant again replied affirmatively. The trial judge then accepted the plea and ordered that a presentence investigation be made by the Probation Department. The other simple burglary charge was nolle-prossed and defendant was remanded to jail to await sentence.

On November 8,1976 the trial judge stated to the defendant that in imposing sentence he had examined defendant’s background and considered the fact that defendant was involved in other burglaries. He then proceeded to sentence the defendant to be confined at hard labor for four and one-half years. At that time neither the defendant nor his counsel made any objection to the sentence.

However, on November 22, 1976, defendant’s attorney orally moved for an appeal, which was submitted without argument and granted. Thereafter on January 13, 1977, defendant, through his attorney, filed an assignment of error in which he asserted he was not afforded an opportunity to offer explanations or contradict unfavorable material contained in the presentence investigation report relied upon by the trial judge. The unfavorable information in the report, according to defendant, caused him to receive a more severe sentence than would ordinarily be imposed upon a defendant in like situations. He therefore prayed that the judgment and sentence be reversed and set aside.

If this defense claim for relief were allowed, sentence would have to be set aside and the case remanded to the trial court for resentencing. At that time defendant would be given an opportunity to be apprised of the unfavorable information contained in the report and to present countervailing evidence.

Defendant’s claim of error cannot be considered. No objection to the sentence was made by or for defendant at the time it was imposed. No opportunity was afforded the trial judge to act upon the defense contention. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. It is sufficient that a party, at the time of the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor. La.Code Crim. Pro. art. 841. Insofar as this record is concerned, the trial judge was never made aware of the defendant’s desire to learn the contents of the presentence investigation report. For all we know, if he had been, he may have disclosed the factual contents and conclusions of the report. La.Code Crim. Pro. art. 877.

In the absence of an objection at the time of sentencing, the issue presented here cannot be raised on this appeal. State v. Williams, 340 So.2d 1382 (La.1977).

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